Mike Wolanin | The Republic Republican Joseph Jay Foyst speaks at a hearing over a challenge to his candidacy for Columbus City Council District 6 in the Bartholomew County Clerk’s Office at the Bartholomew County Courthouse in Columbus, Ind., Friday, Aug. 18, 2023. Thomas’s challenge asserted that the Bartholomew County Republican Party had not filed the paperwork for Foyst’s candidacy on time. The board upheld the challenge and Foyst will be removed from the ballot.
The Bartholomew County Democratic Party has filed a lawsuit in Bartholomew Circuit Court against the GOP’s candidate for Columbus City Council District 6 in the hopes of getting him removed from the ballot.
Democratic Chairman Ross Thomas said he chose to file the civil suit Wednesday after Bartholomew County Clerk Shari Lentz refused to accept his second challenge to Joseph Jay Foyst’s candidacy. He told The Republic that she had said the deadline had passed to file a challenge.
“It’s unfortunate that the clerk could use the rules in that way to come to a ridiculous conclusion that a person who files late under dubious authority simply cannot be challenged,” he said. “And I guess her goal was to allow him — and the other thing, of course, is the only reason he was on the ballot is because she broke the law by allowing him to file late. It’s a little ironic that she allowed his late filing, which caused all of this, and then refused to allow us to file a challenge.”
Lentz declined to comment on the matter.
The defendants in the lawsuit are Foyst, James Holland, Mark Kevitt and Lentz, with the latter three cited in their official capacities as members of the Bartholomew County Election Board. Thomas wrote that the election board members are included in the case because “in their absence complete relief cannot be accorded to (the) plaintiff.”
The relief sought by Thomas and the Democratic Party is a declaratory judgement that Foyst is ineligible to appear as a candidate on the general election ballot, as well as a preliminary and permanent injunction prohibiting Foyst from appearing on the ballot and directing the election board to remove his name from the ballot. Thomas also requested a speedy hearing and “such further relief as the Court may deem just and proper.”
Foyst, 60, previously a salesman for 25 years and now a dump truck driver, was initially selected as the Bartholomew County Republican Party’s nominee during a party caucus in July. The caucus was convened after no Republican filed to run for the office in the party’s May primary, leaving a vacancy in the Nov. 7 general election.
Thomas initially filed a challenge against Foyst on July 26, arguing that his candidacy was invalid because the Republican party had failed to file its notice for the July caucus with the clerk’s office by the required deadline.
While the election board upheld this challenge, there is a section of Indiana Code that allowed the GOP to fill the subsequent vacancy within 30 days, Lentz said in a previous interview.
The Bartholomew County Republican Party held another caucus for District 6 on Aug. 29, and Foyst was once again selected to fill the vacancy.
In his suit, Thomas wrote that Foyst is presumably using IC 3-13-1-7(b)(7) as his basis for filing again.
This section of Indiana Code states that while a party must typically fill a vacancy on a general or municipal election ballot by no later than noon on July 3, there are exceptions for candidate vacancies that exist before the 30th day before the election and are due to certain reasons.
One of these reasons is “the successful challenge of a candidate under sections 16.5 and 20.5 of this chapter.”
“What the Defendant, Joseph Foyst, apparently asserts is that he was a ‘candidate’ who was removed from the ballot after a successful challenge under Indiana Code §3-13-1-16.5(b),” Thomas wrote.
Section 16.5 pertains to situations where there are questions regarding the “validity of a certificate of candidate selection.”
Thomas, however, claimed that Foyst was not a candidate “as contemplated in IC §3-13-1-7(b)” because his paperwork was not filed on time.
“A candidacy which is not perfected in a timely manner is null and void and was never a candidacy under the law,” he wrote. “… Further, the original challenge to his candidacy did not concern the validity of his CAN-49 form filed with the Circuit Court Clerk as referenced in I.C.§3-13-1-16.5 because 1) no allegation was made about the content of the form, and 2) his form was never validly ‘filed with the Circuit Court Clerk’ due to its untimeliness.”
The challenge, instead, was filed pursuant to Section 3-13-1-9, which contains the requirements and deadlines for filling a vacancy by caucus, Thomas argued.
He wrote that while he attempted to challenge Foyst’s latest filing through a formal complaint to the election board on Wednesday, Lentz refused to accept the challenge, meaning that he has “exhausted all administrative remedies.”
Thomas told The Republic that Lentz said that the deadline to file a challenge was Aug. 25; however, he asserted that this deadline was for filing challenges against candidates who were “rightfully on the ballot” by the original July deadline.
According to the state’s 2023 election calendar, the deadline to file a “sworn statement questioning the validity of a certificate of nomination to fill an early candidate vacancy” with a county election board is noon on Aug. 25. This applies to IC 3-13-1-16.5 and the CAN-1 form for challenges, which is what the Democratic Party used to file its initial challenge against Foyst in July.
“That clearly doesn’t apply to someone who filed on the 30th (of August),” Thomas said. “What she’s trying to say is he can’t be challenged, which obviously benefits the Republican candidate and the Republican Party. Not only can he be challenged, he should be challenged. He’s not a lawful candidate.”
The council seat at stake is a new one. City council’s District 6 was recently created due to the city’s decision to adopt second-class status and includes portions of central and north Columbus. The Democratic candidate for District 6 is Bryan Muñoz, who ran unopposed for his party’s District 6 nomination in the primary.
In addition to the new District 6 seat, city voters in November also will elect three at-large members instead of the current two, bringing the total number of city council members up from seven to nine.
The general election is Tuesday, Nov. 7, and the deadline for voter registration is Oct. 10. According to indianavoters.in.gov, early in-person voting will begin on Oct. 16 in Columbus.
