Foyst attorneys respond to appeal challenging candidacy


Attorneys representing Republican Joseph “Jay” Foyst, who was elected to the Columbus City Council in November amid a legal fight over his eligibility, have urged a panel of judges to reject an appeal in a lawsuit seeking to declare his candidacy “null and void.”

The appeal, filed Jan. 31 in the Indiana Court of Appeals by Bartholomew County Democratic Party Chair Ross Thomas, seeks to overturn the Jan. 17 decision by Special Judge K. Mark Loyd, who ruled that an additional Republican caucus in which Foyst was elected to fill a vacancy for the party’s nomination for Columbus City Council District 6 met requirements under state law.

Thomas has argued that Foyst’s candidacy for Columbus City Council District 6 “should be declared null and void” and that Bryan Muñoz, the Democratic nominee for District 6, “should be declared the winner of the 2023 election.”

While the lawsuit was pending before the special judge, Foyst won the Columbus City Council District 6 seat in the 2023 municipal election, defeating Muñoz with 59.5% of the vote.

Earlier this week, Foyst’s attorneys filed a brief with the Indiana Court of Appeals, arguing that Thomas “has failed to establish any proper basis” for nullifying Foyst’s candidacy and declaring Muñoz the winner of the election.

Foyst is being represented by Anderson attorney David W. Stone IV and Franklin attorney George Hoffman III.

“(Thomas’) argument, if accepted, would serve only to thwart the will of the 454 voters who chose Mr. Foyst to represent them on the Columbus City (Council),” Foyst’s attorneys argue in their brief. “The result of the election was fair, and the decision of the trial court declining to overturn it should be affirmed.”

The brief filed by Foyst’s attorneys is latest action in a legal battle over Foyst’s candidacy that started this past summer, when Thomas filed a formal challenge against Foyst, arguing that his candidacy was invalid because the Bartholomew County Republican Party had failed to follow state election laws in the run-up to a caucus in which he was selected as the party’s nominee for District 6.

Foyst was selected as the Bartholomew County Republican Party’s nominee during a party caucus this past 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.

In his initial challenge, Thomas argued that local GOP officials failed to file a required notice of the party caucus with the Bartholomew County Clerk’s Office before a state-imposed deadline. In August, the Bartholomew County Election Board upheld Thomas’ challenge and removed Foyst from the ballot.

However, 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 following “the successful challenge of a candidate.”

Thomas then 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 a lawsuit against Foyst and all three members of the Bartholomew County Election Board, including Lentz.

The case was initially assigned to Bartholomew Circuit Court Judge Kelly Benjamin, who recused herself. The case was later turned over to Loyd, the special judge. In November, Loyd dismissed the claims against the Bartholomew County Election Board, leaving Foyst as the lone defendant.

While the lawsuit was pending before the special judge, Foyst won the District 6 in the general election.

In January, Loyd upheld Foyst’s candidacy, finding that the second Republican caucus in which Foyst was elected to fill a vacancy for the party’s nomination for District 6 met requirements under state law. Thomas then appealed the special judge’s decision.

In their brief, Foyst’s attorneys argue, among other things, that the special judge’s decision should be upheld because Indiana “has a long history of declining to disenfranchise voters after an election has taken place.”

The attorneys further argue that “the statue on which (Thomas) relies … does not expressly provide that compliance is essential to a valid candidacy” and that “the statutes in force at the time of the decisions on which (Thomas) relies (as precedent) have been repeatedly amended.”

“Such amendments show a desire to change the law and diminish and at times destroy any value of those decisions decided under them as precedent,” Foyst’s attorneys argue in their brief.

Foyst’s attorneys also attempt to draw parallels between the challenge to Foyst’s candidacy to an effort to challenge the candidacy of a Republican candidate for the Indiana House of Representatives in 2010.

In that case, a Warrick County Democratic delegate challenged the candidacy of Sue Ellspermann, a Republican primary candidate who had checked the line on her candidacy filing indicating that she had voted in the previous Republican primary even though she had actually voted in the Democratic primary.

Ellspermann, who wound up winning the Republican primary for Indiana House District 74 that year, had testified in court that selecting the wrong option on her candidacy filing “was a genuine oversight, not intentional.”

The delegate, Charles Wyatt, had argued that the error invalidated her candidacy and asked for her name to be removed from the general election ballot.

After unsuccessfully challenging her candidacy with the Indiana Election Commission and Marion Superior Court, Wyatt appealed to the Indiana Court of Appeals, which refused to remove her from the ballot, arguing that “if we were to determine that Wyatt’s challenge to Ellspermann’s candidacy has merit and that Wyatt is entitled to injunctive relief, we would effectively nullify the primary election results.”

“‘In the absence of fraud, election statutes generally will be liberally construed to guarantee to the elector an opportunity to freely cast his ballot, to prevent his disenfranchisement and to uphold the will of the electorate,’” the appellate judges found, citing a previous decision. “’To disfranchise (voters) because of a mere irregularity or a mistaken construction of the law by a party committee or election commissioner would defeat the very purpose of all election laws.’”

Foyst’s attorneys, for their part, argue in their brief that “the same reasoning applies to the general election in this case which Mr. Foyst won.”

“(Thomas) is attempting to overturn the will of the majority in the council election for District 6. His wish must be rejected,” according to the brief. “…The county chairman expends much verbiage claiming that the vacancy could not be filled by Mr Foyst because his original candidacy filing was a day late. The obvious question is why not? There was a vacancy. There is no claim he did not meet the qualifications for the post.”

The dispute in Foyst’s case largely centers around the interpretation of Indiana Code 3-13-1-7(b)(7) and the extent to which it applies to Foyst. The law states that a political party may take action to fill a ballot vacancy within 30 days following “the successful challenge of a candidate,” provided that the vacancy is filled more than 13 days before the election.

Thomas, for his part, filed his own brief last month, arguing that the provision does not apply to Foyst because he was “never a valid candidate.”

Thomas points to a 1985 decision in a dispute over a Republican candidate for Clay County recorder. In that case, Republicans attempted to fill a ballot vacancy for the general election but missed the filing deadline.

However, the Clay County clerk accepted the late filing, and the Republican candidate, Ruth Mohr, ended up defeating the Democratic candidate, Harold Gene Wilhite. After the election, Wilhite filed a lawsuit, and a judge ruled that Mohr was ineligible due to missing the filing deadline and awarded the election to the Democrat.

The judge ruled that “failure to comply with the time frames specified in (Indiana election law) makes the nomination void and of no effect. Mohr was never a candidate for the office of recorder. …The candidacy never existed in the eyes of the law in the first instance.”

Thomas also highlighted an Indiana Supreme Court decision in 1985 in which the high court found that a Republican who won the 1984 election for Brown Circuit Court judge was ineligible to hold the office due to missing a filing deadline.

“Missing the deadline ends the game,” Thomas states in the brief. “(Foyst) was not a candidate validly on the ballot, and he is not a candidate. Like Mohr, ‘the candidacy never existed in the eyes of the law.’ Clearly then, a ‘successful challenge of a candidate’ would only apply to someone that was at some point a valid candidate on the ballot, not a ‘candidacy that never existed’ because it was untimely.”

As of Friday morning, the lawsuit was still pending before the Indiana Court of Appeals.