The “Thomas Rule” – Indiana Supreme Court Re-Affirms the Divide Between Pre-Election Challenges and Post-Election Contests

Introduction

Ross G. Thomas, chair of the Bartholomew County Democratic Party, mounted a procedural attack on the Republican nominee for Columbus City Council, District 6, Joseph Foyst. Thomas claimed that the Republican Party missed a statutory deadline when it first caucused to fill a ballot vacancy, rendering Foyst ineligible. Although Thomas initiated an administrative–and later judicial–challenge before election day, the litigation remained unresolved when voters elected Foyst on 7 November 2023. After the trial court rejected Thomas’s claim, the Court of Appeals reversed and ordered that the second-place finisher, Democrat Bryan Muñoz, be seated. The Supreme Court accepted transfer, vacated the appellate opinion, and remanded with instructions to dismiss the case as moot.

The decision squarely addresses the statutory architecture of Indiana election disputes, drawing a bright line between:

Article 8 “pre-election challenges” (who may appear on the ballot), and
Article 12 “post-election contests” (who actually wins after votes are cast).

Because Thomas pursued only the first path and expressly disclaimed the second, the majority held that the controversy evaporated once the election occurred – leaving nothing for the courts to decide. Justice Goff concurred in part and dissented in part, urging that the Court deny transfer and address eligibility on the merits.

Summary of the Judgment

The Court unanimously confirmed Thomas’s standing to sue in his official capacity as county Democratic chair.
By a 4-1 vote it declared the matter moot because the only relief Thomas sought (removal of Foyst’s name from the ballot) became impossible after the election.
It refused to “convert” the abandoned pre-election challenge into a post-election contest and emphasized that Article 12 provides the exclusive vehicle for overturning certified election results.
The judgment of the Court of Appeals was vacated, and the trial court was instructed to dismiss the case.

Analysis

A. Precedents Cited

Higgins v. Hale, 476 N.E.2d 95 (Ind. 1985)
• Pre-recodification case holding that a late nomination was “void” and that the second-place finisher should be seated. The majority distinguished Higgins because the Election Code was completely rewritten in 1986, now providing separate tracks for challenges/contests and defining “candidate” broadly.
White v. Indiana Democratic Party, 963 N.E.2d 481 (Ind. 2012)
• Recognized dual avenues (Article 8 vs. Article 12) and the judiciary’s reluctance to overturn elections. The Court relied heavily on White in reaffirming the statutory bifurcation.
Wyatt v. Wheeler, 936 N.E.2d 232 (Ind. Ct. App. 2010)
• Treated a pre-primary eligibility challenge as alive for the general election. Justice Goff invoked this case, but the majority found it inapposite because the general election here had already happened and no contest was filed.
Lumm v. Simpson, 194 N.E. 341 (Ind. 1935)
• Early articulation of the “mandatory before, directory after” doctrine: statutes strictly enforced before an election but construed to preserve results afterward unless fraud or express invalidity exists.
Additional authorities include Burke v. Bennett, Kite v. Curlin, Pabey v. Pastrick, and constitutional provisions emphasizing free and equal elections.

B. Legal Reasoning

Standing clarified. Thomas sued “in his capacity” as county chair – a status the Election Code expressly authorizes to file challenges. Technical caption defects did not bar jurisdiction.
Mootness doctrine applied. After election day, courts could no longer grant the only relief pleaded (removal of a name from the ballot). Under Indiana precedent, advisory declarations are impermissible.
Statutory exclusivity. Article 12 provides the sole remedy for voiding results and seating the runner-up. It requires a verified petition within 17 days of the election, specific pleadings, and particular notice/hearing procedures. Thomas neither followed nor invoked these provisions, and he “expressly disclaimed” any election contest.
Rejection of conversion theory. The Court refused to let an Article 8 challenge morph into an Article 12 contest, emphasizing legislative intent, due-process safeguards for voters and candidates, and the constitutional admonition to respect the electorate’s will.
Distinguishing Higgins. Because the post-1986 Code now (i) defines “candidate,” (ii) creates express challenge/contest mechanisms, and (iii) enumerates strict deadlines, the discretionary common-law remedy used in 1985 is no longer available. The majority also noted a 2024 statutory amendment that expressly classifies someone in Foyst’s situation as a “candidate,” eliminating future disputes.

C. Potential Impact

Procedural discipline. Party chairs, candidates, and lawyers must choose the correct statutory path and adhere to deadlines or forfeit relief.
Reduced judicial interference. Indiana courts will rarely upset certified election outcomes absent a properly perfected Article 12 contest.
Mootness awareness. Litigants seeking pre-election relief must obtain expedited rulings or simultaneously file contingent contests.
Legislative confirmation. The 2024 amendment to I.C. 3-5-2-6(c) largely prevents a reprise of this fact pattern, but Thomas stands as precedent on the procedural consequences of ignoring Article 12.

Complex Concepts Simplified

Article 8 “Challenge”: A pre-election administrative proceeding (county election board or Indiana Election Commission) questioning whether a candidate’s name may appear on the ballot. Must be filed within 74 days before the general election.
Article 12 “Contest”: A judicial action after an election to invalidate the certified result and seat someone else. The petition must be filed within 17 days after election day and follow specific pleading/hearing rules.
Caucus Notice & Certificate of Candidate Selection: When a party lacks a nominee after the primary, precinct committee persons caucus to pick a candidate. Statute requires at least 10 days’ notice to the clerk and filing of a certificate by noon on 3 July (or the next business day if offices are closed).
Mootness: If courts can no longer grant effective relief, the case is moot. Indiana courts generally dismiss moot cases rather than issue advisory opinions.
Void ab initio: “Void from the beginning.” In election law, a nomination is void ab initio when statutory prerequisites (e.g., timely filing) are unmet. Thomas clarifies that, even if a nomination is void, courts cannot disturb election results unless an Article 12 contest is filed.

Conclusion

Thomas v. Foyst cements a critical procedural principle in Indiana election jurisprudence: a pre-election challenge that becomes moot cannot be resuscitated into a post-election contest without following Article 12’s exacting requirements. The decision underscores the General Assembly’s intent to channel ballot-placement disputes and result-changing contests into distinct, time-sensitive tracks, thereby protecting the electorate from late-stage disenfranchisement and safeguarding judicial restraint. Practitioners must now treat this “Thomas Rule” as controlling authority: if you wish to overturn an election result, file a statutorily compliant contest within 17 days of election day; otherwise, the courthouse door will close, and the certified winner will stand.