Would-be GOP candidate can’t run on Republican ballot after party ban, 7th Circuit affirms

A longtime Indiana Republican who found himself at odds with the state’s Republican Party and was eventually banned from the GOP for at least a decade will have to stay off the Republican ballot, the 7th Circuit Court of Appeals has affirmed.

Joseph Hero of St. John has been a member of the Republican Party since the mid-1980s, voting as a Republican in every primary election and holding numerous positions within the party. He also supported Republican candidates for every office and usually voted for Republican candidates in the general election.

His allegiance was questioned, however, following a polarizing local debate in 2015 about pursuing eminent domain over lower-income households for commercial development in his community. Hero, who disapproved of the measure, backed independent candidates to replace two incumbent Republican St. John Town Council members.

When the state Republican Party caught wind of Hero’s efforts to oust Republican incumbents, party officials determined he could not retain his position as St. John precinct committeeman and delegate to the Republican State Convention. The party sent him a letter declaring he was barred from seeking elected office in Indiana as a Republican for 10 years.

Regardless, Hero declared his candidacy for an at‐large seat on the St. John Town Council in 2019. The Lake County Republican Party chairman and a member of the Lake County Council challenged Hero’s candidacy, but he maintained that he met the requirements under Indiana law to be a Republican in the upcoming primary election.

When the Lake County Election Board ultimately removed him from the ballot, Hero sued the election board in the Northern Indiana District Court. But the federal court dismissed the appeal for lack of standing, finding that the 2019 election “has been held and decided,” and there were no “continuing, present adverse effects” of the past illegal conduct.

The 7th Circuit Court affirmed in Joseph Hero v. Lake County Election Board, 21‐2793, but on a different reasoning than the district court.

At the outset, the 7th Circuit found Hero had standing to bring his declaratory judgment claim because it easily meets the “actual” injury requirement of standing and falls within the “capable of repetition, yet evading review” exception.

It described Hero’s case as being distinguishable from Tobin for Governor v. Illinois State Board of Elections, 268 F.3d 517 (7th Cir. 2001), noting that Hero never pursued a state remedy or committed “procedural missteps,” but he did show a “reasonable expectation” to run for office again and alleged that the state denied him complete ballot access, a different argument than that alleged in Tobin.

It also determined that federal-question jurisdiction could be granted under 42 U.S.C. § 1983, noting Hero’s “well‐pleaded complaint” raised a federal question by alleging a deprivation of his First and 14th Amendment rights.

On the merits of the case, however, it concluded the election board did not violate Hero’s First and 14th Amendment rights.

“The decision to strike Hero’s name from the ballot imposed only a minor restriction on his ballot access. Indiana law provides alternative means to access the general‐election ballot,” Judge Amy St. Eve wrote. “Although Hero cannot run in the Republican primary — undoubtedly his first choice — he can either run as an independent by obtaining two percent of the total vote cast in the last election or as a write‐in candidate. … As an independent, he can tout his Republican virtues, tell voters he supports Republicans, put up yard signs to that effect, and run on a platform identical to any political party. The only limitation is that he cannot appear on the Republican Party’s primary ballot.”

It also found the restriction to be “reasonable” and “nondiscriminatory,” adding that the state has an interest in protecting a party’s right to determine its own membership and limit its candidates to those party members. It rejected Hero’s attempts to wield the First Amendment “as a sword” to demand a certain degree of influence in the party.

“‘[P]olitical parties may accordingly protect themselves ‘from intrusion by those with adverse political principles,’’ … so too can a state protect the First Amendment rights of a political party, as the Election Board did here by allowing the Republican Party to determine its own membership and restrict its standard bearers to members in good standing,” St. Eve wrote.

The court cited Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996), and Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992), as support for its decision to affirm the district court’s dismissal.

“Both times, the interests of the party prevailed over that of a single candidate attempting to dictate an organization’s speech,” it concluded. “While Hero is by no means advocating similar beliefs as Duke, he also cannot define the Republican Party’s message.”

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