Court of Appeals of Indiana | Opinion 23A

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A PPELLANT , P RO S E Thomas J. Herr Herr & Phillips, LLC Lafayette, Indiana A TTORNEY S FOR A PPELLEE Theodor e 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 Ca se No. 22A

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- 142 Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01

- 2207

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- 63

Opinion by Judge Vaidik Judges Mathias and Pyle concur.Court of Appeals of Indiana | Opinion 23A

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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 whi ch each eligible political party (usually the Republic an and Democrat ic p arties ) hold s a separate primar y to choose its nominee s 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 ca ndidates. 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 w ant 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 h old non partisan elections for judicial officers and argues this di sparate treatment between counties also violates the state and federal constitutions. The trial court found no constitutional violation. W e agree and affirm.Court of Appeals of Indiana | Opinion 23A

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# Facts and Procedural History

[3] Indiana Code chap t er 3

- 10

- 1 governs the procedure s 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 nominee s 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

. Democ ratic 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 E ach 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 ” select s nominees to be voted for in the general election. I.C. § 3

- 10

- 1

- 2. E ligible political part ies ha ve separate ticket s containing that party’s candidates, and voters select o ne 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 wishe s , v oters 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 ei ther system, as Herr’s argument s 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.Court of Appeals of Indiana | Opinion 23A

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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 Uni ted 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. M ost counties in Indiana, including Tippecanoe County , have partisan judges who

are elected usin g 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 C ounties , the elections for judges are nonpartisan. Therefore, candidates for jud icial office are not on the pr imary 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 p rimary

- 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 summaryCourt of Appeals of Indiana | Opinion 23A

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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 s ystem is not unconstitutional.

[6] Herr now appeals.


# Discussion and Decision

[7] Herr renews his argument that Tippecanoe County’s closed pr imary system for electing judges is unconstitutional. This system is laid out in state statute, see I

. C. ch. 3

- 10

- 1 , and w e review the constitutionality of statute s 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 s tatute bears the burden of proof, and all doubts are resolved against that party and in favor of the legislature.” Id. (citation omitted). 

## I. F ederal Claims

[8] Herr first asserts Tippecanoe County’s primary vot ing system places an unconstitutional burden on h is federal right to vote and violate s 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 FirstCourt of Appeals of Indiana | Opinion 23A

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and Fourteenth Amendment s
. 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 a n equal

protection 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 lea st to some degree

— the individual ’ s right to vote and his right to associate with others for political ends.” Id. T o 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 p rotected 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.Court of Appeals of Indiana | Opinion 23A

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Id. at 434 ( cit ing 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 gen erally 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 “req uire that [he] express objectionable views and accept unwanted associations” in order to vote , in violation of the First Amendment

. Appellant’s Br. p. 18. T he U.S. Supreme Court seemingly rejected an identical challenge to closed primaries by summar ily affirm ing 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 req uirement 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 protec ting 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) ( c losed primary

- election system did not violate independentCourt of Appeals of Indiana | Opinion 23A

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voter ’ s right s 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 cand idates 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 th e party. See Rosario v. Rockefell e r , 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 e ach 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 it self

— 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

.Court of Appeals of Indiana | Opinion 23A

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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 ) ( q uestioning whether an election law preventing members of other political parties from voting in another party’s primary burdened associational right s 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 , state s have important interest s in the regulation of elections , including the preservation of political parties as viable and identifiable interest groups, the enhance ment 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 th at 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 Fou rteenth 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 . C

leburne 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 Al l en and Vanderburgh Counties areCourt of Appeals of Indiana | Opinion 23A

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not subject to partisan primaries fo r judges

. He argues that th is 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 “ t here 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 Sc h. Bd. of Princ

e Edward Cnty. , 377 U.S. 218 , 230 (1964). Becau se 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 th e 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. A r ticle 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.Court of Appeals of Indiana | Opinion 23A

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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 Gener al 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 pr ecinct. “[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 r egulations 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). I n 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 Republica n 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 Tippec anoe County require s him to express loyalty to the Republican or Democratic Party in order to vote. P rimary elections are not limited to Republican or Democratic candidates, but rather to political parties whoseCourt of Appeals of Indiana | Opinion 23A

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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 Part ies 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 provide d that ind ividuals 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 Co m m’n , 800 F.3d 913, 915 (7th Cir. 2015).Court of Appeals of Indiana | Opinion 23A

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require voters to acquire identificatio n 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 In diana Constitution.


### B. Arti cle 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 a ny 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 t hat voters in Allen and Vanderburgh Counties who participate in non

partisan 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 t o 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 wit h 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 . AsCourt of Appeals of Indiana | Opinion 23A

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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) ( r ejecting defendant’s privileges

- and

immunities cla im 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

.