soapbox

 Notes on Rust v Morales.

This is the rare 17th Amendment case. I have not gotten to that part of the ruling yet. 

The trial court found that  John Rust had a right to ballot access under the first and 17th amendments and under Article I section 23. I tend to agree on the first two, and disagree on the state claim; I am confident the 3-2 majority will cite Collins v Day, which has eviscerated section 23.

The Supreme Court took jurisdiction and stayed the ruling, so Rust has been removed from the ballot.

Ooh! I wonder if Trump  has any comment.

Then a few weeks ago they formally ruled that Rust is off the ballot, but the written opinions were only announced yesterday (as I write this first draft anyway, it was yesterday.) And I should be doing chores right now instead of diving into this case, but I'm finding it intellectually interesting. More later as Maron would say.

The opinion begins by citing Term Limits v Thornton, which it then fails to follow.

Standard of Review  Here, the Affiliation Statute is cloaked with “the presumption of constitutionality until clearly overcome by a contrary showing.” Horner v. Curry, 125 N.E.3d 584, 588 (Ind. 2019). 

I think that is error. That's not the  Anderson v Celebrezze standard, relied on in Trump v Anderson. And that error contaminates all the reasoning that follows. The Anderson test was also used in Crawford v. Marion County Election Board. I have not read the briefs, but a reasonable argument can be made for strict scrutiny due to the severe burden on voting rights.

Splintered parties and unrestrained factionalism may do significant damage to the fabric of government.” storer v brown. Here, the Court acts to splinter the party and remove a restraint on factionalism. Instead of a primary, Hoosier GOP voters such as myself face a coronation. I personally would prefer to vote for a queer egg farmer than one of our incumbent congressmen. 

 As it happens, the remaining candidate is affiliated with a twice-impeached former president who is continuing his attempt to overthrow the government. Very recently in Trump v. Anderson the US Supreme Court reversed the state of Colorado as to Trump's ballot access. Because these cases were being written at the same time, the Indiana case does not reference the Trump case at all. Yet the Trump case is now the controlling authority, and the Indiana case may need to be re-written.

It does have some good parts.

We start with first principles of free association. The First Amendment, “applicable to the States through the Fourteenth Amendment,” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), prohibits the government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,” U.S. CONST. amend. I. 

It's going to take me hours to work through this, and I have pressing chores and it's already past noon. Is there any way to make this time billable? I don't think so. I could move to intervene.

add an interests of amicus paragraph here later.

I suspect that procedurally the right thing to do is a motion for reconsideration in light of Trump v Anderson.