212 N.E.3d 1261
Ind. Ct. App.2023Background
- Indiana uses a closed (or semi-closed) primary framework under I.C. ch. 3-10-1; most counties (including Tippecanoe) nominate judicial candidates via partisan primaries, while Allen and Vanderburgh Counties hold nonpartisan judicial elections.
- Under Indiana law, to vote in a party primary a voter must have voted for a party’s candidates in the prior general election or intend to do so in the next; no formal party enrollment is required.
- Thomas J. Herr, a Tippecanoe County resident and practicing attorney, sued seeking a declaratory judgment that Tippecanoe’s closed primary system for choosing judicial nominees is unconstitutional under federal and Indiana law.
- The trial court granted the State’s motion for summary judgment and denied Herr’s; Herr appealed.
- The Court of Appeals reviewed the statute’s constitutionality de novo, applying Anderson/Burdick balancing for federal claims and Indiana constitutional reasonableness tests for state claims, and affirmed the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal First Amendment — associational/voting burden | Herr: closed primaries force unwanted association/expressing party views to vote for judicial candidates | State: minimal burden; system protects party associational rights and election integrity | Court: burden is minimal; State interests justify restriction under Anderson/Burdick; claim fails |
| Federal Fourteenth Amendment — equal protection (county disparity) | Herr: disparate treatment — Tippecanoe’s partisan judicial primaries vs. nonpartisan elections in other counties | State: Equal Protection governs persons, not counties; Herr is treated same as other voters in his county | Court: no equal-protection violation; similarly situated voters within Tippecanoe are treated alike |
| Indiana Const. Art. II, § 2 — right to vote (reasonableness) | Herr: requirement to affiliate with a party to vote in judicial primaries is unreasonable and disenfranchising | State: requirement is a reasonable, modest regulation that protects primary integrity; burden comparable or less than other valid voting regulations | Court: requirement is reasonable and uniform; does not violate Article II, § 2 |
| Indiana Const. Art. I, § 23 — Equal Privileges and Immunities | Herr: voters in other counties receive an unequal privilege (nonpartisan judicial ballots) | State: preferential treatment must be shown among similarly situated persons; Herr is treated like other county voters | Court: no § 23 violation because Herr is treated the same as similarly situated voters in his county |
Key Cases Cited
- Anderson v. Celebrezze, 460 U.S. 780 (establishes balancing test for election-law burdens)
- Burdick v. Takushi, 504 U.S. 428 (explains flexible scrutiny for voting regulations and when strict scrutiny applies)
- Tashjian v. Republican Party of Conn., 479 U.S. 208 (recognizes associational interests in primary access contexts)
- Nader v. Schaffer, 417 F. Supp. 837 (D. Conn. 1976) (upheld party-enrollment restriction; summarily affirmed by U.S. Supreme Court)
- Rosario v. Rockefeller, 410 U.S. 752 (upheld enrollment requirement for closed primaries)
- Clingman v. Beaver, 544 U.S. 581 (discusses open/semi-closed primary classifications and burdens)
- Cal. Democratic Party v. Jones, 530 U.S. 567 (addresses associational interests in primary structure)
- Common Cause Ind. v. Individual Members of the Ind. Election Comm'n, 800 F.3d 913 (7th Cir. 2015) (describes Indiana’s closed-primary practice)
- League of Women Voters of Ind., Inc. v. Rokita, 929 N.E.2d 758 (Ind. 2010) (Indiana case applying reasonableness/uniformity in voting regulation challenges)