At its meeting last week, Monroe County’s election board voted to set a hearing for May 18 on the matter of Democrat David Wolfe Bender’s residency, as a Bloomington city council candidate for District 6.
This week on Friday, the board revised the list of specific Indiana state election laws that it wants to cite for its determination “that there is substantial reason to believe an election law violation has occurred.”
A list of four statutes that the board had previously cited was revised to two different laws that are the basis of the board’s determination:
IC 3-14-1-13 Filing fraudulent reports
IC 3-14-3-1.1 Procuring or submission of false, fictitious, or fraudulent registration application; procuring, casting, or tabulating false, fictitious, or fraudulent ballot
Both are Level 6 felonies.
The board’s investigation into Bender’s residency, is based on a complaint that 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.
Bender has indicated to the board through his legal counsel that he intends to withdraw as the Democratic Party’s nominee after the primary election. He’s the only candidate on the ballot, so there’s no question he will be the nominee.
This Friday, after some line-by-line wrangling over the exact wording, the board also settled on the text of invitations to the May 18 hearing.
The invitations are to be sent by certified mail to Bender and to the landlord of the property where Bender claimed residency—on his candidate filings and his voter registration paperwork.
The two election statutes that the board decided to cite are not the only laws that election board chair Donovan Garletts has scrutinized.
Garletts said that in addition to those two laws, Bender could violate additional election laws—if Bender casts a ballot in the primary election, with the same voter registration he used to try to qualify a candidate. City council primary candidates have to be registered voters in the district they seek to represent, by the deadline for declaring a candidacy.
If Bender participates in the May 2 primary, using the same voter registration, with its disputed address, then he could violate four other election laws, according to Garletts:
IC 3-14-2-10 Voting by ineligible persons
IC 3-14-2-9 Unregistered or unauthorized voting
IC 3-14-2-11 Voting in other precincts; making false statements concerning certain voter information
IC 3-14-2-16 Ballots; fraudulent application, showing, examination, receipt, possession, completion, or delivery sec
At the May 18 hearing, which comes two weeks after the primary, Garletts said the board would be able to determine if Bender participated in the primary and with which voter registration address.
About the possibility that the board were to determine at its hearing that Bender voted using the same voter registration address that’s at issue for his candidacy, Garletts said, “We will be forced, at least in my eyes, doing our due diligence, to add these additional things to forward to the prosecutor, should we find that he’s guilty of all this.”
The election board’s only role in all of the proceedings would be to forward its conclusions to the county prosecutor, who will have the responsibility of deciding whether to file charges and if so, what those charges should be.
On Friday, the board looked at every line of the letters to be sent to Bender and the landlord. Their energetic deliberations over some of the points meant the meeting lasted over an hour and a half.
But some issues didn’t take long. A proposal by Garletts to delete the phrase “as a Democrat running” got quick agreement—the three board members saw no reason why Bender’s status as a Democrat would be relevant.
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.
It was Loftman who attended Friday’s meeting, not Henry.
Taking a bit longer to resolve was a sentence that Garletts understood to mean that the board was inviting Bender’s attorney as an alternative to appearing in person. Garletts wanted to invite Bender, not Bender’s attorney. Loftman took the view that the sentence expressed what Bender has a right to do—be represented by counsel.
The arc of the conversation covered some of the same ground as the board’s meeting last week, which reached the conclusion that it makes little sense to try to force Bender to appear in front of the board through a subpoena.
If the board chooses 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. And even if Bender appeared at the hearing under a subpoena, he could still refuse to testify under the Fifth Amendment.
Garletts reduced the board’s wishes for the hearing to just two items. The board wants, if possible, to hear from Bender. And they want, if possible, to see the lease that the IDS reported he claimed to have for an address in District 6, but had refused to show to the IDS.
“We want David, and we want a copy of the lease that he talked about. That’s what we want,” Garletts said.
Assuming Bender does withdraw as the Democratic Party’s nominee after the primary, the Democratic Party could place an alternate candidate on the November 8 city election ballot. The nominee would be decided by a vote of the chairs of precincts that make up District 6—it comprises just six precincts.