A decision to withdraw: Democratic Party city council candidate under investigation over residency

“David [Wolfe Bender] has decided to withdraw his candidacy for Bloomington Common Council District 6.”

That’s the opening line of a letter received by Monroe County’s election board from Bender’s attorney, Manny Herceg, with the Taft-Jaffe law firm.

An Indiana University student, Bender is the sole Democrat for District 6 who appears on the May 2 primary election ballot. District 6 is centered around the university campus and downtown—its entire area is north of 3rd Street.

The letter was read aloud by Monroe County clerk Nicole Browne at Thursday afternoon’s meeting of the three-member election board.

The board’s meeting this Thursday was a continuation of its meeting last week, when the board started an investigation into whether Bender’s candidacy broke any election laws.

The investigation was based on a complaint made by vice chair of the Republican Party, William Ellis, which in turn was based on an Indiana Daily Student article published on Feb. 17, 2023.

The headline to the IDS piece describes the basic idea of the complaint: City Council candidate David Wolfe Bender is running in District 6, residents say he doesn’t live there.

The election board did not decide much on Thursday, but did make some incremental progress, and agreed to resume meeting on the topic in two weeks, on March 23.

It’s not clear what impact the letter from Bender’s attorney will have on the board’s approach to its investigation. The board voted to acknowledge receipt of the letter. But for now at least the board is forging ahead with the investigation.

The letter’s description of Bender’s decision to “withdraw” is apparently about a future withdrawal—from the general election ballot, after the primary election is over.

As a practical matter, the Feb. 10 deadline for withdrawing from the primary has passed. That’s also the deadline for someone to challenge a candidate’s residency claim.

So Bender will appear on the ballot as the sole candidate for the Democratic Party’s nomination for District 6 city council, which means he will win the May 2 primary election.

The deadline for a nominee to withdraw from the November ballot is July 15, which this year is a Saturday. That means the deadline for withdrawal this year is July 17. [IC 3-8-7-28]

The B Square has confirmed with Indiana Election Division co-counsel Matthew Kochevar that if Bender were to withdraw from the November ballot after the primary election, the Democratic Party could caucus some other candidate onto the ballot. The same goes for the Republican Party, which has not fielded a primary election candidate for District 6.

At least two of the three election board members do not appear to be persuaded that Bender’s apparent future intent to withdraw is sufficient grounds to put their investigation aside.

About the letter, Republican Party appointee Donovan Garletts said, “I think there’s a lot of fluff in that letter.” He continued, “Let’s just say that…there’s no admission of a mistake.”

Garletts added, “It’s an incredibly accusatory letter.”

The text of the letter, as read aloud by Browne, is as follows:

Dear Monroe County Election Board,

David [Wolfe Bender] has decided to withdraw his candidacy for Bloomington Common Council District 6.

David wanted to run to help his community, but since the Republican Party signaled it would pursue a challenge to David’s candidacy, that distraction would take away from the good David aimed to do.

He needs to focus on his studies, and we’ll find other ways to help the city. Please confirm David’s withdrawal in writing on behalf of the Monroe County election board and confirm that the board will not take any action on this issue moving forward. Any communication on this matter should be directed to me, or my partner Tracy Betz who is copied here.

Thank you,

Manny Herceg
Taft-Jaffe Law Firm

Responding to the letter’s apparent implication that the board should give the assurance that it would take no further action against Bender, Garletts said, “They don’t dictate what we do. We dictate what we do.”

Browne, who serves on the election board as Monroe County’s clerk, said there had been plenty of time for Bender to produce a lease and to show that he really does live where he said he lives, in his declaration of candidacy. Browne said that we’re living in a “very critical time period where everything is being questioned as to the integrity of candidates—whether they are registered to vote,… how legitimate an election is.”

Browne added, “And the optics here are not good. I feel we would be doing Monroe County a disservice to not pursue this.”

The third member of the election board is David Henry, who is the Monroe County Democratic Party’s appointee. Henry is at the same time the county’s party chair. He’s serving in that role on an interim basis until a more permanent appointee can be found.

At last week’s election board meeting, Henry had floated the possibility of Bender’s withdrawal, and asked what the legal impact would be on the board’s investigation.

On Thursday, Henry pointed to the practical consideration of conducting an investigation with the county election division’s currently diminished capacity, especially given the fast-approaching May 2 primary.

After election supervisor Karen Wheeler’s departure, deputy clerk Tressia Martin has been performing the duties of election supervisor. The election division has also just recently received two-weeks notice from another one of its staff.

Henry floated the idea of putting off the board’s as yet unscheduled hearing on the complaint against Bender until after the primary election. That led to a discussion of the word “expeditiously” in the state statute that lays out how election boards have to conduct investigations.

After speaking with Indiana Election Division co-counsel Matthew Kochevar during a recess of Thursday’s meeting, county attorney Molly Turner-King said that the word “expeditiously” was up to the election board to interpret. But she recommended that the board put on the record the reasons for whatever scheduling it follows.

Also up to individual board members to determine is whether they are neutral decision makers, Turner-King said. That’s the third element of procedural due process, she said. The first two elements of procedural due process are due notice and the opportunity to be heard.

If a board member feels they cannot be a neutral decision maker, Turner-King said, then a proxy could be assigned.

Turner-King gave some examples: “It may be advisable for board members who conducted their own investigation, who spoke directly to the candidate, or have information outside of what has been presented at a public meeting, to consider appointing a proxy for future hearings on this matter.”

Based on last week’s meeting, Garletts did some investigative work on his own, by visiting the address that Bender recorded on his declaration of candidacy, and obtaining a letter from the property owner stating that he had no knowledge of Bender living at the property, now or in the future.

At Thursday’s meeting, Garletts stated that he is a neutral decision maker in the matter.

Turner-King laid out three items the board needs to consider: (1) Are proxies needed? (2) What is the hearing date? (3) And what documents and individuals need to be subpoenaed?

Henry thinks it will take longer than Garletts does to determine who should be compelled to come and testify at the hearing.

Henry told Garletts, “In terms of subpoenas, I think that there are several to consider, and may require more time to work through who—and with all due respect—would include you as well, given that you conducted an investigation, on your own accord, of the residents.”

Garletts told Henry, “You’re welcome to go down that road, but don’t think for one second I won’t as well.” Henry responded by saying, “That’s fair, and it’s not a threat.” Garletts added, “I also take exception to your even bringing it up.”

On the question of whether he and Henry could be neutral decision makers, Garletts said at one point: “I would argue that neither of us would not be considered a neutral party.” Garletts added, “I don’t have any issue with anything that took place, especially on my behalf.”

After telephonic consultation with Kochevar at the Indiana Election Division, Turner-King said it is up to each individual election board member to decide the question of whether they can be a neutral decision maker on the matter.

The first hour of Thursday’s meeting was taken up with a clarification of the previous week’s motion, which expressed the election board’s belief that there is a substantial reason to believe an election law violation took place.

Turner-King told the board that they needed to clarify specifically which election law or laws they mean. The outcome of that discussion was to specify the following sections of state election law:

• [IC 3-5-5-2] standards for determining residency
• [IC 3-8-1-27] standards for residency within a district for common council
• [IC 3-14-1-1] falsification of declaration of candidacy
• [IC 3-8-1-1] requirement that candidates be registered voters

The separate roll call votes by the election board on adding the specific laws to the list were unanimous except for the fourth one. Henry dissented on the fourth item.