District 6 Bloomington Democrat’s residency: Election board sets May 18 hearing, no subpoenas

A hearing on the matter of Democrat David Wolfe Bender’s residency, as a Bloomington city council candidate for District 6, has now been set by Monroe County’s election board for May 18.

The three-member board set the date on a unanimous vote taken at its Thursday meeting.

The date falls roughly two weeks after the May 2 primary election, which will undoubtedly make Bender the District 6 city council nominee for the Democratic Party. He’s the only candidate on the ballot.

But Bender previously conveyed through his attorney, an intent to withdraw as the District 6 nominee: “David [Wolfe Bender] has decided to withdraw his candidacy for Bloomington Common Council District 6.”

Bender’s name will appear on the primary ballot, because the questions about his residency, which were raised by an Indiana Daily Student article published on Feb. 17, 2023, did not come to light until after the Feb. 10 deadline for challenges to be made.

Assuming Bender does withdraw as the nominee after the primary, the Democratic Party could place an alternate candidate on the November 8 city election ballot.

After the May 18 hearing, the board could refer the matter to the county prosecutor, who could then decide whether to bring charges.

The election board decided two weeks ago to move ahead with an investigation into Bender’s residency, based on a complaint was made by William Ellis, who is vice chair of the Monroe County Republican Party.

Ellis’s complaint was based on an Indiana Daily Student (IDS) 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 goal of this Thursday’s meeting was to set a hearing date and to decide who and what documents to subpoena for the hearing.

The board decided not to issue any subpoenas. Instead, the board opted to invite two people to attend the May 18 hearing—Bender and to the owner of 304 E. 16th St. That’s the address of the rental property where Bender changed his voter registration and recorded on his declaration of candidacy.

The owner of 304 E. 16th St. had previously written to election board member Donovan Garletts that he had no knowledge of Bender living at the property, now or in the future.

The IDS article reported that Bender claimed to have signed a lease, but declined to provide a copy to the newspaper.

The election board’s invitation to Bender, which will serve as his due process notice under state law, will also ask him to bring a copy of the lease that is mentioned in the IDS article.

At the conclusion of the hearing, the election board could decide to refer the matter to the county prosecutor.

Two weeks ago, the election board voted to set a hearing, but not the date, on matters related to four different parts 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 current composition of the three-member election board is: Nicole Browne, a Democrat who serves in the role as the county’s elected clerk; Donovan Garletts, the Republican Party appointee; and David Henry, who is the Democratic Party’s appointee.

Henry is the Monroe County Democratic Party’s chair, who had appointed himself to serve on the election board on an interim basis, after Shruti Rana resigned to run for Bloomington city council’s District 5.

But for the board’s investigation into Bender’s residency, Henry has appointed a proxy, retired local attorney Guy Loftman, to stand in for him.

Loftman serves on the Monroe County board of zoning appeals, and is an executive committee member of the Monroe County branch of the NAACP. Loftman has also previously served on Monroe County’s election board.

Loftman led off Thursday’s board meeting by saying that, based on his review of the record so far, it appears to him that Bender “probably violated” IC 3-14-1-1, which involves making a false statement in connection with a declaration of candidacy, which is a Class A misdemeanor.

Loftman said that unless he became convinced otherwise during Thursday’s meeting, he intended to make a motion to set a hearing date on that specific state code.

At its Thursday meeting, setting the date for the hearing was easy for the election board. It was harder to decide whether to issue a subpoena to Bender.

The consideration that won the day was described by county attorney Molly Turner-King, who advised the board that if they chose to issue a subpoena, then Bender could counter with a motion in circuit court to quash it.

Even if the court decided not to grant Bender’s motion to quash the subpoena, it would mean a significant delay in the election board’s proceedings, Turner-King said. And even if Bender appeared at the hearing under a subpoena, he could still refuse to testify under the Fifth Amendment.

The election board’s role, after the hearing, is either to refer the matter to the prosecutor or not. Loftman and Garletts indicated that if Bender or his attorney did not appear at the hearing to provide some explanation, then they would refer the matter to the prosecutor.

Garletts left no doubt about his intent: “If we invite Mr. Bender as an invitee, to a hearing, and he does not show up, there is no question in my mind that…I will make the motion…to refer him [to the prosecutor].

Loftman responded, “And I would second the motion.”

Browne expressed concern that if no subpoena were issued, and Bender did not appear, and the board made its referral to the prosecutor, the prosecutor could still decline to charge Bender with anything. Browne indicated that the issuance of a subpoena would at least convey that the board considers the issue to be a serious one.

Browne said, “This is not something that should be swept under the rug.” If Bender’s remedy is just to withdraw, Browne asked, ”What incentive would there be for anybody to never think about doing anything like this again?”

Browne said the 2024 presidential election will be “the most scrutinized election in the history of elections, especially Monroe County.”

“Before anybody else is tempted to put an address, in their handwriting, down on three separate pieces of candidacy paperwork, and voter registration paperwork, I want them to understand: That will not happen here in Monroe County—it will not, without there being consequences.”

Browne talked about her own experience as a candidate for county clerk: “I have to put the address where I live. I do have a mailing address—I have a post office box. But where I lay my head, where my physical address is, is what made me a qualified candidate for an office in Monroe County.”

Towards the end of Thursday’s meeting, all three board members responded to a message they’d received from Bender’s legal counsel just a few minutes before the meeting started. [The B Square has made a records request for the message.]

Based on board member commentary, the message included a theme from a previous message—that the board’s pursuit of an investigation was political in nature.

Garletts, who is the Republican appointee to the board said, “This board is comprised of…one appointed Democrat, one appointed Republican, and one elected official, who is a Democrat.” He added, “So I’m pretty sure folks don’t eat their own. So if this is political, that would be news to me.”

The Democrats, Browne and Loftman, concurred that the investigation did not have partisan motivations. “If you rob a bank, and then say, But here I’m giving the money back, after you’ve been caught, that is not a defense to robbing the bank,” Loftman said.

Donovan agreed, telling Loftman, “You stole the words from my mouth!”