outline rust brief
cover
toc
needs expanded
table of cases
Anderson v Celebrezze,
Norman v Reed,
Harman v Forssenius
Term Limits
Burson v Freeman
Dale
Hurley.
Elrod v Burns.
Burdick
Norman v Reed
Trump v. Anderson, 601 U.S. ___ (2024) .
interest of amicus
certifications: horning claims to be an individual. no party paid for this brief. word count.
summary of argument
1.
The court below failed to set out any standard in its review of the 17th Amendment claim. Retroactively removing Rust in 2024 ex post facto because of his votes in 2014 and his failure to vote in 2018, violates any norms of fairness and is not some minor burden. It is arbitrary and capricious. In a case of first impression, Trump v Anderson, Anderson v Celebrezze, Norman v Reed, and Harman v Forssenius may provide guidance. This case presents a good vehicle to explicate the 17th Amendment.
2.
The court below erred in following Burdick v Takushi's permissive review rather than using either Anderson, as clarified in Crawford v Marion County, or Norman v Reed. Arbitrarily kicking Rust off the ballot because of his votes in 2014, under rules not enacted until 2021, is a severe burden not just on Rust but on the GOP rank and file who are deprived of an election for senate. 2 of the 5 dissented, finding that the legislation could not be applied to Rust even if it were facially valid. They were correct.
3. The court below also erred in using the Salerno standard for facial challenges, in a First Amendment case.
4. the court should apply strict scrutiny, or the upper section of the Anderson v Celebrezze balancing test.
The Norman and Celebrezze cases may be directly controlling on their facts. Trump v Anderson is not directly controlling, because it is a section 3 case, but is the court's most recent decision in a federal election ballot access case, and provides guidance. and see Term Limits.
Deciding to apply strict scrutiny would not be the end of the case. In cases such as lopez-torres and Burson v Freeman, the court balanced the competing compelling interests of different groups of voters. Here, the court might want to strike a blow for the party's right to exclude, as in Dale or Hurley. But it should do so under a proper standard of review.
5. The procedural posture of the case at the moment is [emergency motion for a stay?]
Here, plaintiff has a moderate chance of success on either claim. The public interest strongly favors holding a free and equal election. The burden falls far more heavily on Rust than on Morales. The harm is irreparable. Elrod v Burns. If Rust eventually loses, perhaps on remand, after the election has taken place, any votes for him can just be discarded. But if the election is not held, Banks and Morales could be seen as having rigged the election, with an appearance of corruption, which is not fair to either of them.
Here there is a mild burden on the asocciational rights of the GOP bosses, who would prefer to exclude Rust. But there is no valid mechanism to do so. Rust has qualified under the old statute, and the new statute cannot yet be applied to him.
The court should grant a stay and allow the May primary to take place with Rust's name included. Later the case could be GVR'd, summarily reversed, or given full briefing and argument. This court could reach the merits, or could establish the correct legal standard and remand.
argument
1.
The court below failed to set out any standard in its review of the 17th Amendment claim. Retroactively removing Rust because of his votes in 2014 and his failure to vote in 2018 violates any norms of fairness, and is not some minor burden. It is arbitrary and capricious. In a case of first impression, Trump v Anderson, Anderson v Celebrezze, Norman v Reed, and Harman v Forssenius may provide guidance. This case presents a good vehicle to explicate the 17th Amendment.
2.
The court below erred in following Burdick v Takushi's permissive review rather than using either Anderson, as clarified in Crawford v Marion County, or Norman v Reed. Arbitrarily kicking Rust off the ballot because of his votes in 2014, under rules not enacted until 2022, is a severe burden not just on Rust but on the GOP rank and file who are deprived of an election for senate. 2 of the 5 dissented, finding that the legislation could not be applied to Rust even if it were facially valid. They were correct.
3. The court below also erred in using the Salerno standard for facial challenges, in a First Amendment case. By this formulation, a statute that only infringed the voting rights of 99% of the population would be ok.
4. the court should apply strict scrutiny, or the upper section of the Anderson v Celebrezze balancing test.
talk about Crawford and its discussion of Anderson. reread Trump v Anderson look for a quote.
look for any case where indiana loses at SCOTUS. hess v Indiana, hudnut v aba booksellers, what else? Edmond v Indianapolis yick wo v Hopkins.
any case that talks about strict scrutiny.
the Indiana Supreme Court identifies both lines of cases. on the one hand there is Burdick, Jenness v Fortson, Clingman v Beaver, Timmons v New Party, Munro v (Washington?)
on the other there is Norman, Williams v Rhodes, Anderson v Celebrezze, Crawford v Marion County Election Board
N.Y. State Bd. of Elections v. López Torres, 552 U.S. 196, 202 (2008)
citing Democratic Party of U.S. v. Wisc. ex rel. La Follette, 450 U.S. 107, 122 (1981))
The Framers of the United States Constitution "conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by the States, but by the people." U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 821 (1995) Morales.
lie list item: 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).
Rust's First and Fourteenth Amendment challenges fail because the Affiliation Statute imposes a minor, reasonable and nondiscriminatory restriction that advances a litany of important state regulatory interests.
The Norman and Celebrezze cases may be directly controlling on their facts. Trump v Anderson is not directly controlling, because it is a section 3 case, but is the court's most recent decision in a federal election ballot access case, and provides guidance. and see Term Limits.
A s the court below points out, Term Limits v Thornton is not directly controlling, because here Indiana has not added a qualification. But the Term Limits case is relevant for its discussion of the roles of the states in carrying out federal elections .
Deciding to apply strict scrutiny would not be the end of the case. In cases such as YuLee and Freeman v Burson, the court balanced the competing compelling interests of different groups of voters. Here, the court might want to strike a blow for the party's right to exclude, as in Dale or Hurley. But it should do so under a proper standard of review.
5. The procedural posture of the case at the moment is [emergency motion for a stay?]
Here, plaintiff has a moderate chance of success on either claim. The public interest strongly favors holding a free and equal election. The burden falls far more heavily on Rust than on Morales. The harm is irreparable. Elrod v Burns. If Rust eventually loses, perhaps on remand, after the election has taken place, any votes for him can just be discarded. But if the election is not held, Banks and Morales could be seen as riggers, and corrupt, which is not fair to either of them.
Here there is a mild burden on the associational rights of the GOP bosses, who would prefer to exclude Rust. But there is no valid mechanism to do so. Rust has qualified under the old statute, and the new statute cannot yet be applied to him.
The court should grant a stay and allow the May primary to take place with Rust's name included. Later the case could be GVR'd, summarily reversed, or given full briefing and argument. This court could reach the merits, or could establish the correct legal standard and remand.
argument
conclusion: this court should grant a stay and grant certiorari because of the importance of the case, and the need to act quickly.
Rust v Morales is a dispute about the 2024 Indiana GOP primary for US Senate.
Amicus Andrew Horning is the Libertarian Party candidate for US Senate from Indiana this fall. He will be severely burdened if Rust is removed from the ballot, and Banks is selected rather than elected. Horning expects to come in third, and runs primarily to discuss and impact issues. This is different than Rust's interests. Rust was a long shot to win the GOP primary, and would not be a shoe-in in November, but he was running to win, not merely to emote. Horning has standing to intervene, but chooses to participate as an amicus instead.
Horning has run several times before, and has a significant following in Indiana. quote results from ballot pedia. he is likely to continue to run.
Horning is a frequent candidate, having run as a Libertarian for senate, house, governor, mayor, and county office beginning in 1996. He typically comes in third. He got 5% for senate in 2016, 4% for house in _, 45% for Congress district 7 running as a Republican in __, I want to say 20% for mayor, maybe 10%.
2016 See also: Indiana's 8th Congressional District election, 2016
Andrew Horning 4.6% 13,655
2012 See also: United States Senate elections in Indiana, 2012
Horning ran in the 2012 election for the U.S. Senate, representing Indiana. He won the nomination on the Libertarian ticket.[8]
According to the website Daily Kos, this race was one of nine top-ballot 2012 races that contained Libertarian candidates who received more total votes than was the difference between the Democratic winner and the GOP runner-up. In this case, Horning took in over 4,800 more votes than the number that separated Donnelly and Mourdock.[9]
PARTYCANDIDATEVOTE %VOTES
Democratic 
Joe Donnelly 50% 1,281,181
Republican Richard Mourdock 44.3% 1,133,621
Libertarian Andy Horning 5.7% 145,282
Candidate, Indiana State Governor, 2000, 2008
Candidate, United States House of Representatives, Indiana, District 7, 2002, 2004
Candidate, Mayor of Indianapolis, 1999
Candidate, Marion County Recorder, 1998
Candidate, Indiana State House of Representatives, District 96, 1996
Rust is a Republican, and while he wants to be the nominee, he will support the winner of the primary. Thus the idea of running as an independent or Libertarian would be counter to his interests, and would be an unwanted burden on the Libertarians, and not a minor one. The Libertarian Party is not a graveyard for excluded major party candidates. It is not an adequate alternative, in the way that plaintiff Burdick had several options and thus overall was not severely burdened by not being able to write in Mickey Mouse.
Rust is a Republican, and while he wants to be the nominee, he will support the winner of the primary. Thus the idea of running as an independent or Libertarian would be counter to his interests.
In Norman v Reed, the court said that when an election law severely burdens rights, strict scrutiny must be used. Unfortunately "severe burden" was left undefined. However, in that case, 25,000 extra signatures on a ballot access petition was found to be a severe burden. Here, to appear as an independent would take over 25,000 signatures, and thus be a severe burden under the controlling precedent of Norman. The difference is even without the extra 25000 + signatures, being on the ballot as an independent would be a consolation prize, not the desired objective. So Rust would be doubly severely burdened.
summary of argument
a stay should be granted. p has some likelihood of success on either of two claims, irreparable harm to the integrity of the election process, balance of the burdens, and the public interest favor a stay.
this case presents a rare 17th amendment case, and is important for that reason.
in this case a state supreme court allowed state officials to remove a candidate for senate, leaving the gop primary uncontested for his opponent. meanwhile this court, under a different section of the 14rh amendment, refused to allow Colorado to remove ex-president Trump from the ballot.
without a ruling from this court carefully explaining how these cases are legally distinct, it might seem to the public that the indiana court is just imposing its own personal preferences, rather than acting according to rules of law.
the facts here are complex. to participate in the gop primary, a would-be candidate must obtain 4500 signatures, which it is undisputed Rust has done, and qualify as a republican by one of two routes, either by obtaining the consent of the county chair, or by having chosen GOP in the most recently voted primary. In 2022 a statute now requires the two most recent primaries, not just one. The state is attempting to enforce this retroactively against Rust. While Rust has not cited to the ex post facto clause of either the federal or state constitution, he has cited to the 14th amendment, which requires due process, equal protection, privileges or immunities, and incorporates the First Amendment. Due process, and its state analog due course of law, incorporate fundamental fairness, such that the new statute cannot be held against Rust until 2026. The state court did not seem to notice this problem. Barring Rust from the ballot because of choices he made in 2014 is a severe burden.
The court below erred in two important ways. First, the court seems to have applied a deferential Burdick v Takushi test in its 14th A analysis, rather than Anderson or Norman v Reed. This conflicts with Trump v Anderson, which regarded Anderson v Celebrezze as influential or controlling. It also conflicts with Crawford v Marion County Election Board, which required the Anderson test. In Crawford, the district court in Indianapolis and the 7th circuit had erred in applying deferential review under Takushi, in a case about voter ID. The Supreme Court split 3-3-3, with the controlling opinion upholding the ruling below but not its reasoning. This case could be similar.
This court might prefer to emphasize the GOP's interests in not being forced to affiliate with someone they don't like, as in Dale, Hurley, 303, Masterpiece Cakeshop. You wouldn't know it from the opinion below, but this is a gay panic case; the gop is trying to exclude Rust at a time when his race could serve as a referendum on the state GOP's allegedly anti-lgbtq legislative agenda.
But here the gop can point to no bylaw, as in Tashjian, and its attempt to apply the statute retroactively violates due process equal protection privileges or immunities and the First Amendment.
There is no supreme court case on the 17th A. Does the phrase "of the people" count for anything? In Harmon, the court interpreted the 24th A as preventing paperwork obstacles to voting, even if they were not literally a poll tax. More recently, the court has tried to adhere more closely to the text of the constitution. We know that the intent of the progressive era reform of the 17th A was to allow parties to be controlled by the rank and file rather than the bosses. But perhaps this is not sufficiently spelled out in the text. Using either a tiers of scrutiny approach or text history and tradition, the 17th should require some meaningful standard, not simply the announcement of a conclusion. Here, it is difficult to see what 17th Amendment standard would allow the state to apply the new statute retroactively.
In Anderson v Celebrezze, Ohio had set an unconstitutionally early deadline for ballot access. Here, Indiana has done the same thing. This is not a minor trivial burden.
Second, in its 17th Amendment analysis, it failed to set out any standard of review, so a future court is left with no guidance.
(I made a few edits in the emailed version)
Thursday did / didn't
1 hr meet w lawyer
took load to scotties
got load wood chips
donated lettuce
club coffee toast fries
trash out. food bank run.
wednesday paid $1100 on card
zoom. loaded van. cleaned back yard.
to do
x $75 bank of America
x duke 300 at Kroger 301.50. also groceries $10.
x more wood chips, gravel. filled pothole in alley.
outline 2 briefs
- did outline for one brief. tomorrow I hope to start the other. before that I should do chores for 20 minutes. it is 11:18 pm Friday night, so i'm home working, which suits me fine.
started this one at brad's 5 -6 pm. $17.
did 2 loads of dishes. need to refill pot. need to find my timer.
brown brown and his Mexican friend are back and will stay in the front room. he will do $500 a month of work. I will show him scotty's place.
stuff to do next: stairs, front porch, front stoop, back yard, buckets. find timer.
plan: onion potato leaves/wood chips
find Carroll county complaint