CHICAGO (CN) — The Indiana Green and Libertarian Parties escalated their legal protest against the Hoosier State's ballot access rules on Wednesday, urging the Seventh Circuit to return their lawsuit against State Secretary Diego Morales back to the District Court of Southern Indiana.
The independent political parties argue Indiana law unconstitutionally hampers their ability to get on the ballot and stay there, protecting the Democrat/Republican duopoly from outside challenge. They argued as much when they sued the Indiana Secretary of State's office in March 2022. Despite ruling against them in August 2023, U.S. District Judge James Sweeney II hinted he agreed.
The Greens and Libertarians specifically oppose Indiana's ballot requirement for minor political parties to submit nomination petitions signed by a number of eligible voters "equal to 2% of the total vote cast at the last election for secretary of state in the election district that the candidate seeks to represent."
Voters must be sign these petitions on paper by hand, and minor parties must separate the signatures by county. The parties, as well as independent candidates, then have to deliver the signatures in person to the respective voter registration office in each of Indiana's 92 counties. All of this comes out of their own pockets.
In contrast, parties that received at least 10% of the vote in the prior secretary of state race — effectively only Democrats and Republicans — nominate their candidates for office by publicly-funded primary elections.
"Plaintiffs argue that the 2% requirement, as exacerbated by the 92-county procedure, imposes a burden that outweighs the state interests asserted. The court, were this an issue of first impression, might agree," Sweeney wrote last August.
Sweeny claimed that despite his sympathy to the independent parties' claims, he was bound by higher court precedent, like the Seventh Circuit's 1985 decision in the case Hall v. Simcox, to grant Indiana summary judgment. In Hall, the Seventh Circuit kept the U.S. Communist Party off Indiana ballots by finding the state's 2% nomination threshold for minor parties actually protected "political diversity."
"It may keep off the ballot just those parties so lacking in electoral appeal that they contribute little to the political diversity of the state or nation," then-Judge Richard Posner, a Ronald Reagan appointee, wrote in the Hall decision.
Before a three-judge appellate panel on Wednesday, the parties' attorney Oliver Hall — also the founder of the election reform advocacy group Center for Competitive Democracy — argued it was inappropriate to hide behind prior court decisions like Hall without considering the relevant facts of the issue.
To support his argument he cited the Anderson-Burdick framework, a legal theory that requires courts to weigh restrictions a state places on electoral participation against the benefits it supposedly reaps from instituting those restrictions.
"These cases require fact-intensive analysis. And the Anderson analysis expressly forbids courts from using prior cases as so-called litmus tests," Hall said, later adding that, "In this case, it is undisputed by the secretary that Indiana's ballot-access requirements are so burdensome that volunteer petition drives cannot succeed."
In their appellate brief, the parties also argued that times had changes since 1985, and that Indiana's laws had stifled political diversity in the Hoosier State rather than protect it.
"No independent or minor party candidate has completed a successful statewide petition drive in Indiana in 23 years and counting ... Indiana’s ballot is, for practical purposes, completely closed to these candidates and the voters who support them," the parties argued.
The state secretary office's own attorney Kyle Hunter rebutted these arguments by claiming Indiana had a vested interest in regulating elections. He also waved away the independent parties' complaints that the state ballot restrictions for minor parties were too difficult to overcome, at one point comparing them to other commonplace election rules.
"Indiana's county verification provision is similar to other administrative requirements like notarization that this court has found to be reasonable restrictions and not severe burdens," he said.
Hunter further argued Indiana's ballot access restrictions were typical of, or even less severe than, restrictions found in other states. The secretary's appellee brief and Sweeney's August ruling both highlighted multiple challenges wherein the supreme and appellate courts declared the states' restrictions on independents and minor parties did not violate the constitution.
"In the district court's order, it cites Norman, Rednour, Hall, Tripp, Jenness, Storer, American Party of Texas; all of these cases to create this idea of precedent that places this case far below other requirements in other states that have been found constitutional," Hunter said.
While both attorneys faced criticism and questions from the appellate panel, Ronald Reagan appointee U.S. Circuit Judge Kenneth Ripple had especially pointed comments for Hunter. He was intent on getting beneath Indiana's deferral to precedent, and wanted to know exactly why Indiana sought to restrict minor parties' ballot access.
"I mean really, when you get down to it, in a democracy, the upstart is supposed to have a right to make a little noise." Ripple said. "What is the government's interest in suppressing that?"
Hunter replied that Indiana sought to "prevent voter confusion" by not overcrowding the ballot, an argument Ripple characterized as patronizing on the part of the state.
"I can walk down the streets of South Bend, Indiana today and all I hear around me is, 'we need fresh blood, we need fresh blood.'" Ripple said. "People desperate to have new people in the process, and you know what you're basically saying here is 'no, let it rest.'"
Ripple — joined by Donald Trump appointee U.S. Circuit Judge Michael Brennan and Barack Obama appointee U.S. Circuit Judge David Hamilton — took the case under advisement but did not say when they would issue a ruling.
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