Indiana Supreme Court Justices, left to right, Geoffrey Slaughter, Mark Massa, Loretta Rush, Derek Molter, Christopher Goff (Supreme Court Flickr)
A yearslong legal battle over a Columbus City Council member’s candidacy sparked a sharp exchange Thursday between Indiana’s Supreme Court justices and Bartholomew County Democratic Party Chair Ross Thomas.
At issue in the underlying case was Thomas’ 2023 challenge against Republican Joseph “Jay” Foyst, which alleged Foyst’s candidacy in that year’s municipal election was invalid because the Bartholomew County GOP missed the deadline to file notice for a party caucus with the clerk’s office.
Foyst was initially selected as the Bartholomew County Republican Party’s nominee during a party caucus in July 2023. The caucus was convened after no Republican filed to run for the office in the party’s May primary, leaving a vacancy in the general election.
After the county election board upheld the challenge, the Bartholomew County Republican Party held a second caucus — again selecting Foyst to fill the vacancy.
Thomas’ repeated attempt to challenge Foyst’s candidacy was denied by the Bartholomew County clerk because the deadline had passed for him to file a challenge, prompting Thomas to file a lawsuit.
Despite the pending litigation, Foyst was ultimately elected to the Columbus City Council in November 2023 — beating out his Democrat opponent, Bryan Muñoz. A trial court judge upheld the Republican’s candidacy shortly after.
But Thomas appealed, and the Indiana Court of Appeals agreed that the GOP caucus and certificate of candidacy were filed late, meaning Foyst was never a legal candidate. The decision reversed the election result and declared Muñoz the winner of the 2023 general election.
Foyst petitioned the Indiana Supreme Court last August to take up the case and reinstate him as the race winner.
His attorney, George Hoffman III, held Thursday that Thomas has no standing to bring the lawsuit because he has no injury. Muñoz, for example, would be better suited to bring a case, Hoffman said.
The lawyer affirmed, too, that the appellate ruling unconstitutionally “disenfranchised 454 voters” who voted to elect Foyst.
Thomas, meanwhile, maintained that Indiana’s election laws “give a special purpose to county chairs in filling the ballot and in making these challenges.” The case is clear, he argued: “Late filers are void … if you miss a deadline, you’re finished.”
Thomas is an attorney and argued the case himself.
But the high court justices appeared skeptical, grilling Thomas for much of his allotted time before them. Contention largely centered around any injury — or lack thereof — that Thomas has personally suffered, and whether or not he was the appropriate party to seek legal remedy. The justices also questioned whether the overall issue was moot, given that the election in question already happened.
“An agency isn’t a court. You may have statutory right to bring a claim in an administrative proceeding — whether it’s the (Indiana Utility Regulatory Commission) or the local election board — that’s a very different matter from having judicial standing to seek and obtain judicial relief,” said Justice Geoffrey Slaughter. “When you go to a court of law, you’ve got to have an injury.”
It’s now up to the court to decide whether they will take up the dispute. If they don’t, the appellate court decision in Thomas’ favor would be final.
Candidacy challenge
Foyst, the Republican candidate for the Columbus City Council’s District 6 seat, argued in court documents that his county GOP substantially complied with election law.
While the notice of the initial caucus was filed one day late, the meeting was still held — and Foyst was properly selected as the party’s candidate, his counsel wrote.
The Bartholomew County Circuit Court Clerk accepted the late filing, opining that the delay was minor and should not invalidate Foyst’s selection. Foyst further noted he was actively campaigning and publicly recognized as a candidate throughout the election cycle.
After Thomas successfully challenged the first caucus, the Bartholomew County Republican Party held a second caucus, invoking a state law that allows for a vacancy to be filled even after a “successful challenge.”
The county election board allowed Foyst’s second candidacy to proceed, and he bested Muñoz’s 309 votes with 454 votes.
Hoffman maintained Thursday that overturning the election would be unfair to the electorate and set an unfair precedent for courts to override local election outcomes based on technicalities.
Justice Christopher Goff questioned whether the court should weigh in at all. He pointed to a 1985 decision in which the Indiana Supreme Court ruled that “if you miss a deadline like this … that (candidate) is void.”
“I’m concerned that we might be doing damage to our own precedent by injecting ourselves into this citywide election,” Goff said. “This challenge was known at the time of the election.”
Jenna Lorence, with the Indiana Attorney General’s Office, additionally spoke on Foyst’s behalf and cited existing state law for pre-election challenges.
“If you have a pre-election challenge where someone remains on the ballot that is ultimately found to be improper, there are standards for what to do in order to fill that seat. Essentially, it’s viewed as a vacancy. The remedy is never to (make) the person who won the fewest number of votes … the winner of the election,” Lorence said. “The times in which the results of an election will be reversed, the only instances we see of that in Indiana law is when there’s a tabulation error.”
High court justices grill Thomas
Thomas reiterated, however, that Foyst was never a legal candidate because the county Republican Party failed to meet a key legal deadline.
A section in Indiana election law requires a caucus notice to be filed with the county clerk at least 10 days before the gathering. The Bartholomew County Republican Party filed the notice one day late. Thomas said that meant the clerk was legally barred from accepting filing, making Foyst’s initial selection invalid.
But Thomas also maintained that Foyst’s second candidacy should not have been allowed.
Although Foyst was renominated in the second caucus under the “successful challenges” exception, Thomas argued that exception did not apply because Foyst was never legally a candidate in the first place.
If the clerk had followed the law, (Foyst) would have been sent away. He would not have been a candidate. There would have been no challenge, and he would not have been a candidate removed from challenge. He would have been a candidate who missed the deadline and wasn’t on the ballot.
– Bartholomew County Democratic Party Chair Ross Thomas
As the only legally eligible candidate, Muñoz remains the rightful winner, Thomas said.
Justice Mark Massa asserted that “there are a myriad of ways to challenge a candidate.”
“So, why are we carving out this one special defect regarding deadlines?” he asked.
Thomas said the law is plain. He said Foyst’s candidacy was never valid and should not have qualified to be challenged in the first place.
“If you miss a deadline … the statute says the clerk may not accept the late filing — not that we can accept some of them, and if it was no big deal, we’ll think about it. It says may not,” Thomas responded. “So, what is being suggested is that if you can get the clerk to make a mistake, that makes you a candidate on the ballot subject to challenge. … If the clerk had followed the law, (Foyst) would have been sent away. He would not have been a candidate. There would have been no challenge, and he would not have been a candidate removed from challenge. He would have been a candidate who missed the deadline and wasn’t on the ballot.”
Slaughter repeatedly probed Thomas about injuries and questioned if Muñoz or the county Democratic Party would be better positioned to file a lawsuit. When Thomas remarked that he was, in fact, “representing the party,” Slaughter pushed back.
“You’re here on your own behalf, as a pro se litigant. And that’s the question,” the justice said. “Why is this not brought by the party with you, perhaps, as its lawyer? That fixes all the standing problems in the world, doesn’t it?”
Thomas continued his position that “the county chair is the person who is best equipped to bring these kinds of challenges — even more so than a candidate.”
“The county chair is given the authority to put people on the ballot, to decide who gets to be a candidate,” Thomas said. “A county chair can tell a person, ‘I’m sorry, you don’t fit the criteria, I’m not letting you on the ballot.’ That’s the county chair’s role.”
Still, Justice Derek Molter seemed to doubt that Thomas’ post-election challenge could result in any resolution.
“The only relief you asked for in your complaint that you haven’t abandoned was a declaratory judgment that Foyst should not appear on the general election ballot, but the election already happened. He already appeared on the ballot,” Molter said. “We can’t give you that relief.”
Thomas told the justices he wants the same relief he “unanimously received from the Court of Appeals, which says that a candidate who misses a deadline is never a candidate, and if you’re not a candidate, you can’t win an election.”
“The only thing available to me as the chair and the party is to seek declaratory judgment,” Thomas continued. “It is not moot. … The pre-election challenge that was pending could have been decided before the election. But for numerous delays, many of which were from Mr. Foyst to push the case past the election … it was a pre-election challenge that was decided after the election.”
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