Mike Wolanin | The Republic Bartholomew County Democratic Party Chairman Ross Thomas addresses members of the Bartholomew Election Board during a hearing about his challenge of Republican Joseph Jay Foyst’s 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.
With early in-person voting set to start in a little over a week and absentee-by-mail voting already underway, the fate of the candidacy of a Republican nominee for Columbus City Council in the upcoming municipal election is still undecided.
The legal battle over the candidacy of GOP nominee for Columbus City Council District 6 Joseph Jay Foyst, which is still pending in Bartholomew Circuit Court under the jurisdiction of a special judge, could have implications for some 4,093 voters in the district, which covers portions of central and north Columbus.
The lawsuit challenging Foyst’s candidacy, filed in September by Bartholomew County Democratic Party Chair Ross Thomas, seeks court orders for Foyst to be deemed ineligible for the Nov. 7 municipal election and removed from the ballot. A special judge on Friday continued a hearing in the case until Oct. 16, the same day early in-person voting begins in Columbus.
The outcome of the legal fight could determine which party wins the District 6 council seat. Should the lawsuit prevail, Democratic nominee Bryan Munoz would have no opponent in the general election. And depending on how long the case drags out, people could wind up casting votes for a candidate who may later be ruled ineligible and ordered removed from the ballot.
As of Wednesday afternoon, 11 voters in District 6 had already requested absentee-by-mail ballots, according to the Bartholomew County Clerk’s Office. Those ballots include Foyst as a candidate.
The Bartholomew County Clerk’s Office, for its part, said that a judicial order to remove a candidate from the ballot this close to the election would be uncharted territory for staff.
Bartholomew County Clerk Shari Lentz, who is named as a defendant in the lawsuit against Foyst, said she would defer to state election officials for guidance should he be deemed ineligible.
“Thankfully, I’ve never been in this situation before,” Lentz said. “I would just be relying heavily on the Indiana Election Division for guidance through that process if that were ever to be the case now or in the future.”
The Indiana Election Division, for its part, told The Republic that state law contemplates several scenarios in which there is a ballot vacancy ahead of an election. But what the clerk’s office and the Bartholomew County Election Board would need to do in this case would largely depend on when the judge hands down a ruling.
“If a judge orders a candidate off of the ballot, then state law would require the county election board to reprint their ballots and perform a new public test of the voting systems,” said Angie Nussmeyer, co-director of the Indiana Election Division.
But if the judge issues that decision within five days of Election Day, the election board would not be required to reprint the ballots or retest the voting system, Nussmeyer said. Nov. 2 would be five days before Election Day.
At that point, however, many voters in District 6 may have already voted, including for Foyst. For instance, in this year’s municipal primary, 22% of all votes had already been cast 12 days before Election Day.
Should Foyst be deemed ineligible by the judge, District 6 voters who had already cast ballots would have the option to request a replacement ballot, Nussmeyer said.
While voters are not required to request a replacement ballot, Nussmeyer said she would “encourage them to do so if they are affected by the judge’s order.”
Any votes cast for a candidate who has been removed from the ballot would not officially count, though “votes cast in other races would be counted, even if the person did not request a replacement ballot,” Nussmeyer said.
“The county election board could not include any votes cast for the former candidate on the final certified results,” she said.
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 filed a formal challenge against Foyst, arguing that his candidacy was invalid because the Bartholomew County Republican Party had failed to file its notice for a party caucus with the clerk’s office by the required deadline.
The election board upheld the challenge in August, but the Bartholomew County Republican Party decided to hold another caucus and selected Foyst once again to fill the vacancy, pointing to a section in the Indiana Code that allowed the GOP to fill the vacancy within 30 days.
Thomas then attempted to challenge Foyst’s candidacy again, but his request was denied by Lentz because the deadline had passed to file a challenge, prompting Thomas to file the lawsuit.
Foyst, as well as the Bartholomew County Election Board, have asked the judge to dismiss the lawsuit. In responses to the lawsuit filed this week, Foyst and the election board rejected several arguments in Thomas’ complaint, claiming, among other things, that Thomas failed to challenge Foyst’s candidacy before a required deadline and that the challenge would “frustrate important objectives of the electoral process.”
“Mr. Thomas, as Bartholomew County Democratic Party Chair, seeks to eliminate competition for the Democrat Party candidate in District 6 so that the Democrat candidate may win by default, thereby depriving the voters of Common Council District 6 a choice,” election board counsel Peter King wrote in the board’s motion to dismiss. “Such is not the result that the General Assembly intended.”
In the meantime, it remains unclear when the fate of Foyst’s candidacy will be resolved.
On Friday, the special judge overseeing the lawsuit pushed back a hearing in the case until the first day of early in-person voting. That decision came a day after Foyst’s attorney moved to delay a hearing set for this coming Wednesday because he “will be out of state on a previously planned vacation,” as well as everyone else in his office, according to the copy of the request.
The judge has rescheduled the hearing for Oct. 16, adding a handwritten note to his order stating “no further continuances absent extraordinary cause.”
Thomas had objected to delaying the hearing, arguing that the lawsuit is “time sensitive as it relates to the defendant’s legitimacy as a candidate to appear” on the ballot in the upcoming election.
