Home Part of States Newsroom
Judge finds primary law unconstitutional; grants Rust injunction


Judge finds primary law unconstitutional; grants Rust injunction

Dec 07, 2023 | 7:15 pm ET
By Whitney Downard
Judge finds primary law unconstitutional; grants Rust injunction
John Rust leaves the courtroom Wednesday Nov. 1 after a hearing on his case to get on the Republican primary ballot for U.S. Senate. (Niki Kelly/Indiana Capital Chronicle)

A candidate for Congress won an injunction from a Marion County court late Thursday after the judge found a state law limitng who can run on a primary ballot is unconstitutional. 

He also simultaneously denied the state’s motion to dismiss — a win for the underdog campaign. 

“‘Elections belong to the people. It’s their decision,’” the court ruling from Marion County Superior Court Judge Patrick J. Dietrick reads, quoting Indiana-raised attorney and former U.S. President Abraham Lincoln. “It is with this purpose in mind that the court renders its decision.”

John Rust, running to succeed U.S. Sen. Mike Braun, currently can’t appear on the Republican ballot because of a law prohibiting candidates whose last two primary votes don’t match the party they wish to represent.  

Rust sued to gain access to the Republican ballot, saying the measure barred the vast majority of Hoosiers from running under their preferred party — an argument that seemed to sway the court.

“This is a victory for the 80% who are banned from running for political office, and I know they don’t like me saying that, but it’s the absolute truth,” Rust told the Indiana Capital Chronicle, citing a Pew Research Center analysis of Indiana’s party affiliation. 

Dietrick also cited that research in his filing. 

“When the immense power of the state is turned toward and upon its citizens in such a way that it imperils a sacred and cherished right of those same citizens, the state’s actions must be for an articulated compelling and pressing reason, and it must be exercised in the most transparent and least restrictive and least intrusive ways possible,” he said. 

“The 2021 (law) fails in this regard. It unduly burdens Hoosiers’ long-recognized right to freely associate with the political party of one’s choosing and to cast one’s vote effectively,” Dietrick continued. 

Ruling: Law seems to benefit party, not the state

Rust’s two most recent primary votes were Republican in 2016 and Democrat in 2012 — meaning he can’t appear on the Republican ballot for the 2024 May primary election. The law allows an exception, should the county’s party chair grant it. Jackson County Republican Party Chair Amanda Lowery elected not to do so in this case because of the two-primary rule, according to the filing. 

Dietrick noted that it appeared the Republican party — which made the unprecedented move to endorse Rust’s opponent, U.S. Rep. Jim Banks — benefited from this law, rather than the state and Hoosiers.

Story continues below PDF preview.

Order Issued (26)


The distinction between wholly internal aspects of party administration on one hand and participation in state run and state financed elections on the other is at the heart of this case. Therefore, it is the State’s asserted interests, not the interests of the Indiana Republican Party,” the ruling said. “There is no compelling or even rational government interest being served here.”

Dietrick continued to say that Hoosiers have the freedom to vote in either party primary and that voting “is not indicia of party membership or loyalty.”

He noted that the U.S. Supreme Court had struck down similar restrictions to party membership that lasted 23 months while this law restricts voting Hoosiers for 48 months or more. Additionally, two candidates openly calling themselves Republicans qualified for the Democratic ballot in Owen County in 2022 — an outcome which Dietrick said “is compelling proof that the statute does not work to serve the alleged state goal.”

Dietrick noted the Indiana Constitution requires a candidate to live in Indiana for two years preceding the election to be eligible. The law in question essentially doubles that.

Further, according to the state constitution, a state representative may be twenty-one years old. But with the voting age set at eighteen, most candidates would not have voted in two primaries until reaching the age of twenty-two,” the ruling said.

Dietrick added that the law didn’t give Hoosiers guidelines for qualifying if they needed a party chair’s approval. Notably, he said, Rust didn’t get a list from Lowery “until after she denied him certification and only because he filed suit.”

An uphill battle for Rust

Thursday’s ruling doesn’t guarantee Rust a spot on the Republican ballot — he must still gather 500 signatures from each of the state’s nine congressional districts — but means he cannot be denied from participating due to his voting history. 

His primary opponent, Banks, continued to denigrate his “Democrat” opponent and referenced a recent court battle involving the Rust family, including John Rust.

Senate candidate Rust pushes for primary ballot access in court

Egg farmer Rust stepped down from the board of his embattled family farm, Rose Acre Farms, earlier this year. Last month, a jury found that Rose Acre, one of the nation’s largest egg distributors, had purposefully manipulated its supply with competitors to increase the price of eggs. The egg farms have been fined millions.

“If Democrat John Rust gets his name on the ballot, then I look forward to comparing his liberal background and criminal price gouging scheme with my conservative record,” Banks told the Capital Chronicle. “As an Afghanistan veteran I will never back down from a fight to save our great country from the radicals who want to tear it down.”

But Rust likened it to the biblical story of David and Goliath, in which a smaller and weaker party overcame a giant. 

“I think everything they’ve done against me to try to keep me off the ballot has made me stronger because it’s David versus Goliath. They keep trying to stone me, to say, ‘You know, you should not run; you’re not allowed to run. You’re not one of us; you’re not an establishment candidate. And that’s not me,” Rust said. “I’m an outsider; I’m a farmer. I am committed and I am going to run and I will absolutely win.

“And that’s because Indiana is sick of what the establishment is doing to them,” Rust concluded.