Mike Wolanin | The Republic Columbus City Council District 6 candidate Joseph Jay Foyst, from left, watches as attorneys Ross Thomas and and Peter King, representing the Bartholomew County Election Board, talk after a pretrial hearing for Thomas’ lawsuit against Joseph Jay Foyst and the Bartholomew County Election Board at the Bartholomew County Courthouse in Columbus, Ind., Monday, Oct. 16, 2023.
A lawsuit regarding the validity of a candidate for city council will not be resolved before next week’s municipal election.
An evidentiary hearing was held in Johnson County Superior Court 4 on Wednesday for Bartholomew County Democratic Party Chairman Ross Thomas’s lawsuit against Joseph Jay Foyst, the Republican candidate for Columbus City Council District 6.
Special Judge K. Mark Loyd said that he plans to schedule the next hearing for Nov. 28, with a Dec. 12 backup date. He will once again look for a Johnson County courtroom to host the session and will set it for a full day. While he doesn’t expect the proceedings to last that long, he said that he wants to provide plenty of time to resolve the matter.
However, as Tuesday is Election Day, it is possible that the question of Foyst’s validity as a candidate could become a moot point, if he were to lose the race.
Foyst 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. The Democratic nominee for District 6, who ran unopposed in the primary, is Bryan Munoz.
Thomas filed a formal challenge against Foyst, arguing that his candidacy was invalid because the GOP 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 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 allows parties to fill a vacancy within 30 days under certain circumstances.
Thomas attempted to challenge Foyst’s candidacy again, but his request was denied by Bartholomew County Clerk Shari Lentz because the deadline had passed to file a challenge, prompting Thomas to file the lawsuit in early September.
In his complaint, Thomas requested a declaratory judgment that Foyst is ineligible to appear as a candidate on the ballot and a preliminary and permanent injunction prohibiting him from appearing on the ballot and directing the Bartholomew County Election Board to remove his name from the ballot.
Thomas included the election board — which includes Lentz — as defendants in his complaint, writing that complete relief could not be provided in their absence.
However, he has since changed his mind.
“I would dismiss my request for injunction and I would dismiss my case against the election board,” Thomas said at Wednesday’s meeting.
He is still seeking a declaratory judgment against Foyst’s candidacy, however.
Thomas’s amendment came after Peter King, an attorney representing the election board, questioned Lentz about early voting procedures, including in-person voting and absentee-by-mail ballots.
When King asked for the number of voters who had cast ballots as of Oct. 31, Thomas initially objected, stating that the validity of Foyst’s candidacy is not determined by whether he appears on the ballot or whether anyone votes for him.
However, King replied that Thomas’s request for a injunction has to meet certain criteria, including whether the injunction serves the public interest. He added that it’s important to discuss “how difficult and chaotic” the process of removing Foyst’s name from the ballot would be.
Thomas then said that the point was well taken and indicated his intention to amend the nature of his complaint.
“We have gotten to the point where it would be impractical to remove (Foyst’s) name from the ballot,” he told The Republic.
The parties took a recess to discuss the matter. Upon their return, Loyd said that they would finish the hearing and then reset for a conclusion of the evidentiary presentation. He added that he hopes to resolve the case as soon as possible.
Lentz told The Republic that 2,064 ballots had been cast through Oct. 31. This figure includes both absentee-by-mail ballots and those cast in person, she said.
Wednesday’s hearing largely revolved around both King and Thomas asking questions of Lentz about her duties and actions as both the county clerk and an election board member.
As part of his case, King noted that Lentz had relied on the Indiana Election Calendar, as provided by the Indiana Election Division, to provide her with the appropriate deadlines for filing.
The document in question states that June 23 was the deadline file with the clerk a copy of the notice sent to precinct committeemen “concerning a caucus to be held by noon, July 3, 2023, to fill a vacancy existing on the municipal election ballot resulting from a vacancy on the primary election ballot.”
Lentz said that, as a result, she understood June 23 to be the deadline to file this document.
However, Thomas argued that June 23 was only the deadline for a caucus held on July 3, as Indiana statute, as well as the form itself, state that the notice of caucus must be filed by noon 10 days before the caucus.
In the case of Foyst’s original filing, the party set the caucus for July 1 and filed their notice of caucus with the clerk’s office on June 22.
Loyd questioned certain points of Thomas’s arguments, such as his interpretations of statutes, views on Lentz’s responsibilities and the emphasis he put on the caucus notice deadline, stating that he did not see how the latter would help him resolve this case.
“You and I are not on the same page,” Loyd said.
