Thomas J. Herr, Appellant-Plaintiff, v. State of Indiana, Appellee-Defendant
Court of Appeals Case No. 22A-PL-142
COURT OF APPEALS OF INDIANA
June 29, 2023
Opinion by Judge Vaidik; Judges Mathias and Pyle concur.
APPELLANT, PRO SE
Thomas J. Herr
Herr & Phillips, LLC
Lafayette, Indiana
Theodore E. Rokita
Attorney General
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
Vaidik, Judge.
Case Summary
[1] Thomas J. Herr challenges the constitutionality of the primary-election system in Tippecanoe County. Indiana has adopted a closed primary system, in which each eligible political party (usually the Republican and Democratic parties) holds a separate primary to choose its nominees for the general election, and only voters affiliated with that party may vote in that party‘s primary. In most counties in Indiana, including Tippecanoe County, this system is used not only to nominate executive and legislаtive candidates but also judicial candidates. As such, in order to vote for judicial candidates in a Tippecanoe County primary, a voter must affiliate themselves with an eligible political party and vote only among that party‘s candidates.
[2] Herr, who lives in Tippecanoe County, does not want to affiliate with a single political party, but he cannot participate in the primary elections without doing so. He argues this violates his right to vote under the state and federal constitutions. Furthermore, he notes that other counties in Indiana hold nonpartisan elections for judicial officers and argues this disparate treatment between counties also violates the state and federal cоnstitutions. The trial court found no constitutional violation. We agree and affirm.
Facts and Procedural History
[3]
party holding the primary election” or intend “to vote at the next general
[4] In рrimary elections, political parties nominate candidates for United States Senator, Governor, United States Representative, legislative offices, and local offices, which may include local judges.
[5] In 2022, Herr, who lives and works as a practicing attorney in Tippecanoe County, filed suit seeking a declaratory judgment that its primаry-election system is unconstitutional. Specifically, he challenged the closed, partisan nature of judicial elections in Tippecanoe County, arguing that to vote for judicial candidates in the primary he must select one political party and vote only among that party‘s candidates and that this violates both the state and federal constitutions. Both Herr and the State filed cross-motions for summary
judgment. The trial court granted the State‘s motion and denied Herr‘s, finding that Tippecanoe County‘s closed primary-election system is not unconstitutional.
[6] Herr now appeals.
Discussion and Decision
[7] Herr renews his argument that Tippecanoe County‘s closed primary system for electing judges is unconstitutional. This system is laid out in state statute, see
I. Federal Claims
[8] Herr first asserts Tippecanoe County‘s primary voting system places an unconstitutional burden on his federal right to vote and violates equal protection. “Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.” Reynolds v. Sims, 377 U.S. 533, 1377-78 (1964). The U.S. Supreme Court has recognized the right to vote is fundamental and that burdens on voting can violate the First
and Fourteenth Amendments. Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986).
[9] In addressing a challenge to state election laws under both the First and Fourteenth Amendments, we apply the test laid out in Anderson v. Celebrezze, 460 U.S. 780 (1983). See Acevedo v. Cook Cnty. Officers Electoral Bd., 925 F.3d 944, 948 (7th Cir. 2019) (emphasizing Anderson applies
A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the Statе as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff‘s rights.
Id. at 434 (citing Anderson, 460 U.S. at 788-89). Under this standard, a regulation must be narrowly drawn to advance a state interest of compelling importance only when it subjects the voters’ rights to severe restrictions. Id. If it imposes only “reasonable, nondiscriminatory restrictions” upon those rights, the State‘s important regulatory interests are generally sufficient to justify the restrictions. Anderson, 460 U.S. at 788.
A. First Amendment
[10] Herr first asserts that Tippecanoe County‘s closed primaries inflict an unconstitutional burden on his right to vote. Specifically, he argues closed primaries “require that [he] express objectionable views and accept unwanted associations” in order to vote, in violation of the First Amendment. Appellant‘s Br. p. 18. The U.S. Supreme Court seemingly rejected an identical challenge to closed primaries by summarily affirming Nader v. Schaffer, 417 F. Supp. 837 (D. Conn. 1976), summarily aff‘d, 429 U.S. 989 (1976). There, unaffiliated voters challenged a state statute limiting primary voting to those people enrolled in political parties, arguing in part that this requirement infringed on their right to vote. The district court held there was no constitutional violation, finding the enrollment process—filing an application—to be “not particularly burdensome” and noting that the state had a legitimate interest in protecting both the associational rights of party members and the integrity of primary elections. Id. at 847. Other courts have similarly found closed partisan primary еlections do not violate the First Amendment. See Ziskis v. Symington, 47 F.3d 1004, 1006 (9th Cir. 1995) (closed primary-election system did not violate independent
voter‘s rights under First or Fourteenth Amendments); Balsam v. Sec‘y of N.J., 607 F. Appx. 177, 183 (3rd Cir. 2015) (same).
[11] Even assuming, given the “limited precedential effect” given to summary dispositions, Nader is not binding on us, we agree with its conclusion. Anderson, 460 U.S. at 784.2 To vote in
a group to which one does not belong, that falls far short of a constitutional right, if indeed it can even fairly be characterized as an interest.“); Clingman v. Beaver, 544 U.S. 581, 588-89 (2005) (questioning whether an election law preventing members of other political parties from voting in another party‘s primary burdened associational rights and determining that if so the burden was less severe than others the Court had upheld).
[12] Furthermore, as the U.S. Supreme Court has noted, states have important interests in the regulation of elections, including the preservation of political parties as viable and identifiable interest groups, the enhancement of parties’ electioneering and party-building efforts, and in maintaining the integrity of elections against party raiding and “sore loser” candidacies by spurned primary contenders. Id. at 594. Given that the closed primary system here does nоt place a heavy burden on Herr‘s First Amendment rights, the State‘s regulatory interests justify its restrictions.
B. Fourteenth Amendment
[13] Herr also argues this system violates the Equal Protection Clause of the
not subject to partisan primaries for judges. He argues that this is disparate treatment that violates equal protection.
[14] But we see no equal-protection violation here. Herr‘s argument is prеmised on the idea that he is similarly situated to voters in other counties. But “there is no rule that counties, as counties, must be treated alike; the Equal Protection Clause relates to equal protection of the laws between persons as such rather than between areas.” Griffin v. Cnty Sch. Bd. of Prince Edward Cnty., 377 U.S. 218, 230 (1964). Because Herr is treated the same as other voters in his county, there is no еqual-protection issue. See Citizen Ctr. v. Gessler, 770 F.3d 900, 918 (10th Cir. 2014) (“[T]he Equal Protection Clause requires only that each county treat similarly situated voters the same.“).
[15] Herr has failed to show Tippecanoe‘s closed primary system for electing judges violates the First or Fourteenth Amendments. The trial court did not err in denying his motion for summary judgment and granting the State‘s.
II. Indiana Claims
A. Article 2, Section 2
[16] Herr also argues the system violates
(a) A citizen of the United States, who is аt least eighteen (18) years of age and who has been a resident of a precinct thirty (30) days immediately preceding an election may vote in that precinct at the election.
(b) A citizen may not be disenfranchised under subsection (a), if the citizen is entitled to vote in a precinct under subsection (c) or federal law.
(c) The General Assembly may prоvide that a citizen who ceases to be a resident of a precinct before an election may vote in a precinct where the citizen previously resided if, on the date of the election, the citizen‘s name appears on the registration rolls for the precinct.
“[V]oting is a fundamental right of all voters who meet the enumerated qualifications” in
[17] As an initial matter, we disagree with Herr‘s contention that the closed primary system in Tipрecanoe County requires him to express loyalty to the Republican or Democratic Party in order to vote. Primary elections are not limited to Republican or Democratic candidates, but rather to political parties whose
nominee received at least ten percent of the votes cast in the state for secretаry of state at the last election,
[18] The question here is whethеr that requirement is a reasonable regulation. Our Supreme Court has not had much occasion to address the reasonableness requirement of voting regulations under
require voters to acquire identification in advance and bring it to the polls, and the system serves a substantial interest in safeguarding primary elections.
[19] The trial court did not err in determining Tippecanoe County‘s closed primary system does not violate Herr‘s right to vote under the Indiana Constitution.
B. Article 1, Section 23
[20] Herr also argues that the primary system violates the Equal Privileges and Immunities Clause found in
[21] Indiana‘s Equal Privileges and Immunities Clause imposes two requirements:
First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics [that] distinguish the unequally treated classes. Second, the prefеrential treatment must be uniformly applicable and equally available to all persons similarly situated. In addition, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.
League of Women Voters of Ind., 929 N.E.2d at 770 (citations omitted). As noted above, Herr has not shown he was treated differently than other similarly situated individuals. He is treated the same as other voters in his county. As
such, there is no
[22] The trial court did not err in determining the closed primary system in Tippecanoe County does not violate Herr‘s rights under the Privilegеs and Immunities Clause of the Indiana Constitution.
Affirmed.
Mathias, J., and Pyle, J., concur.