Court of Appeals of Indiana | Opinion 23A-PL-142 | June 29. 2023 Page 1 of 14

APPELLANT, PRO SE

Thomas J. Herr

Herr & Phillips, LLC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General

Natalie F. Weiss

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Thomas J. Herr,

Appellant-Plaintiff,

v.

State of Indiana,

Appellee-Defendant

June 29, 2023

Court of Appeals Case No.

22A-PL-142

Appeal from the 

Tippecanoe Superior Court

The Honorable

Randy J. Williams, Judge

Trial Court Cause No.

79D01-2207-PL-63

Opinion by Judge Vaidik

Judges Mathias and Pyle concur.
Court of Appeals of Indiana | Opinion 23A-PL-142 | June 29. 2023 Page 2 of 14

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 legislative 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 constitutions. The trial court 

found no constitutional violation. We agree and affirm. 
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Facts and Procedural History

[3] Indiana Code chapter 3-10-1 governs the procedures for primary elections that 

occur in general-election years. A primary election is held in May of each 

general-election year. Ind. Code § 3-10-1-3. Most counties in Indiana hold 

“closed” partisan primaries, wherein each political party’s nominees are 

selected only by those affiliated with that party. See Common Cause Ind. v. 

Individual Members of the Ind. Election Comm’n, 800 F.3d 913, 915 (7th Cir. 2015) 

(“Indiana uses a closed primary system”); Cal. Democratic Party v. Jones, 530 

U.S. 567, 570 (2000) (defining closed partisan primary as one “in which only 

persons who are members of the political party . . . can vote on its nominee”).1

Each political party “whose nominee received at least ten percent (10%) of the 

votes cast in the state for secretary of state at the last election” selects nominees 

to be voted for in the general election. I.C. § 3-10-1-2. Eligible political parties

have separate tickets containing that party’s candidates, and voters select one

ticket and vote only among that party’s candidates. I.C. § 3-10-1-15. To vote in 

a party’s primary, the voter must be registered to vote and have “at the last 

general election, voted for a majority of the regular nominees of the political 

1

Indiana’s primary system may be more akin to a “semi-closed” primary, in which a political party’s primary 

is open not only to members but also to independent voters, given that under Indiana’s system no formal 

membership, enrollment, or registration with the party is required. See Clingman v. Beaver, 544 U.S. 581, 584

(2005) (defining a semi-closed primary as one in which a party’s members and, if the party wishes, voters 

registered as independents, could vote in the party’s primary). However, given that both parties, as well as the 

Seventh Circuit, refer to Indiana’s system as a “closed primary,” we will do the same. And notably, our 

analysis would be the same for either system, as Herr’s arguments hinge on the fact that he must choose a 

particular political party’s ticket to vote for judicial candidates, which he must do under either a closed or 

semi-closed system. 
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party holding the primary election” or intend “to vote at the next general 

election for a majority of the regular nominees of the political party holding the 

primary election.” I.C. § 3-10-1-6. 

[4] In primary elections, political parties nominate candidates for United States 

Senator, Governor, United States Representative, legislative offices, and local 

offices, which may include local judges. I.C. §§ 3-10-1-4; 3-5-2-29. Most 

counties in Indiana, including Tippecanoe County, have partisan judges who 

are elected using the closed primary system described above—each political 

party selects candidates, voters affiliated with the parties (based either on their 

voting history in the previous general election or their intent in the next) vote

among those candidates for that party’s nominee, and the winner of each 

party’s primary then runs in the general election. I.C. § 33-33-79-3. However, in 

Allen and Vanderburgh Counties, the elections for judges are nonpartisan. 

Therefore, candidates for judicial office are not on the primary ballot and 

instead appear on the general-election ballot without party designation. I.C. §§

33-33-2-9; 33-33-82-31.

[5] In 2022, Herr, who lives and works as a practicing attorney in Tippecanoe 

County, filed suit seeking a declaratory judgment that its primary-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 
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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.C. ch. 3-10-1, and we review the constitutionality of statutes de novo. Himsel v. 

Himsel, 122 N.E.3d 935, 945 (Ind. Ct. App. 2019), reh’g denied, trans. denied. 

“Statutes come before us ‘clothed with the presumption of constitutionality 

until clearly overcome by a contrary showing.’” Id. (quoting Zoeller v. Sweeney, 

19 N.E.3d 749, 751 (Ind. 2014)). “The party challenging the constitutionality of 

a statute bears the burden of proof, and all doubts are resolved against that 

party and in favor of the legislature.” Id. (citation omitted).

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 
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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 to “all First and Fourteenth 

Amendment challenges to state election laws” and applying it to an equalprotection claim). There, the Court acknowledged that although the rights of 

voters were “fundamental,” there must also “be a substantial regulation of 

elections if they are to be fair and honest.” Anderson, 460 U.S. at 788. And these 

regulations, whether they govern “the registration and qualifications of voters, 

the selection and eligibility of candidates, or the voting process itself, inevitably 

[affect]—at least to some degree—the individual’s right to vote and his right to 

associate with others for political ends.” Id. To subject every voting regulation 

to strict scrutiny “would tie the hands of States seeking to assure that elections 

are operated equitably and efficiently.” Burdick v. Takushi, 504 U.S. 428, 433 

(1992). Therefore, we apply a “more flexible” standard: 

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 State 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.
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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 elections 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 
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voter’s rights under First or Fourteenth Amendments); Balsam v. Sec’y of N.J., 

607 Fed. 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 Tippecanoe County’s primary election, a voter 

must have simply voted for the majority of that party’s candidates in the 

previous general election or intend to do so in the next. This is not particularly 

burdensome. Unlike other systems the U.S. Supreme Court has upheld, it does 

not even require prior action on the part of the voter or formal enrollment with 

the party. See Rosario v. Rockefeller, 410 U.S. 752, 758 (1973) (upholding closed 

primary-election law that required voter to formally enroll as a member of a 

party several months before the primary). Nor does it “lock in” voters, who are 

free to decide at each primary which party’s ticket to choose. See id. at 759 

(noting the closed primary system allowed voters to easily vote in a different 

party primary each year if they chose to do so). The only burden Herr points to 

is the closed nature of the primary itself—that he must choose a party’s primary 

to participate in and vote only among that party’s candidates. But this burden, if 

any, is minimal, as Herr does not have a strong interest, let alone a right, to 

choose the nominee for a party he does not belong to. See Cal. Democratic Party, 

530 U.S. at 574 (“As for the associational ‘interest’ in selecting the candidate of 

2 The U.S. Supreme Court has cited Nader as the controlling precedent when addressing claims made “by 

nonmembers of a party seeking to vote in that party’s primary despite the party’s opposition.” Tashjian, 479 

U.S. at 215 n.6. 
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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 not 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 

Fourteenth Amendment, which states that “[n]o State shall deny to any person 

within its jurisdiction the equal protection of the laws,” which is “essentially a 

direction that all persons similarly situated should be treated alike.” City of 

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Herr challenges

the requirement that he must participate in a partisan primary in order to vote 

for a judicial candidate, while voters in Allen and Vanderburgh Counties are 
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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 premised 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 equal-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 Article 2, Section 2 of the Indiana 

Constitution, which provides: 

(a) A citizen of the United States, who is at 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.
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(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 provide 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 Article 2, Section 2. League of Women Voters of Ind., Inc. v. 

Rokita, 929 N.E.2d 758, 763 (Ind. 2010). However, the legislature “has power 

to determine what regulations shall be complied with by a qualified voter in 

order that his ballot may be counted, so long as [the regulation] is not so grossly 

unreasonable that compliance therewith is practically impossible.” Simmons v. 

Byrd, 136 N.E. 14, 18 (Ind. 1922). In determining whether a voting regulation is 

constitutional, we look to its “reasonableness and uniformity.” League of Women 

Voters of Ind., 929 N.E.2d at 766. Herr challenges only reasonableness, arguing 

he is required “to express loyalty to the Republican Party or the Democratic 

Party as a condition to [his] effective participation in judicial elections” and that 

this is unreasonable. Appellant’s Br. p. 19. 

[17] As an initial matter, we disagree with Herr’s contention that the closed primary 

system in Tippecanoe 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 
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nominee received at least ten percent of the votes cast in the state for secretary 

of state at the last election, I.C. § 3-10-1-2, although generally only the

Republican and Democratic Parties have met this threshold.

3 Furthermore, the 

statutes do not require an expression of “loyalty.” Instead, a voter merely must 

have voted for the majority of that party’s candidates in the last election or 

intend to do so in the next. See I.C. § 3-10-1-6.

[18] The question here is whether that requirement is a reasonable regulation. Our 

Supreme Court has not had much occasion to address the reasonableness 

requirement of voting regulations under Article 2, Section 2. However, in 

League of Women Voters of Indiana, the Court addressed the reasonableness of 

voter-identification requirements. In finding that the voter-identification 

requirements were reasonable, the Court noted the relatively minor burdens the 

regulations placed on voters—Indiana law provided that individuals may 

receive an identification card after providing some basic information—and 

served a substantial interest of protecting “the integrity and reliability of the 

electoral process.” League of Women Voters of Ind., 929 N.E.2d at 768. This is like

the Anderson analysis conducted above, and we find the primary system 

reasonable under Article 2, Section 2 for the same reasons. The burden on 

voters is low, arguably lower than voter-identification requirements, which 

3

“Since at least 1952, only the Republican and Democratic parties have met this threshold.” Common Cause 

Ind. v. Individual Members of the Ind. Election Comm’n, 800 F.3d 913, 915 (7th Cir. 2015).
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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 Article 1, Section 23 of the Indiana Constitution, 

which provides “The General Assembly shall not grant to any citizen, or class 

of citizens, privileges or immunities, which, upon the same terms, shall not 

equally belong to all citizens.” Similar to his equal-protection claim above, Herr 

argues that voters in Allen and Vanderburgh Counties who participate in nonpartisan elections for judges are receiving a privilege not given to him.

[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 preferential 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 
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such, there is no Article 1, Section 23 violation. See Lomont v. State, 852 N.E.2d 

1002, 1008 (Ind. Ct. App. 2006) (rejecting defendant’s privileges-andimmunities claim because, while other counties may offer diversion programs, 

he was treated no differently than other similarly situated offenders in his

county).

[22] The trial court did not err in determining the closed primary system in 

Tippecanoe County does not violate Herr’s rights under the Privileges and 

Immunities Clause of the Indiana Constitution.

Affirmed. 

Mathias, J., and Pyle, J., concur.