Referred by election board to county prosecutor, state attorney general: Residency questions about District 6 Bloomington city council candidate

David Wolfe Bender’s name was the only one that appeared on the May 2 Democratic Party’s primary for the Bloomington city council’s District 6 seat.

So Bender is currently the party’s nominee for that council position. All other things being equal, he will appear on the Nov. 7 ballot as the party’s nominee.

But on Thursday, Monroe County’s three-member election board voted unanimously to refer two potential felony election law violations by Bender to county prosecutor Erika Oliphant. The vote came after a hearing that lasted around an hour and 20 minutes.

It was election board member John Fernandez who made the motion to refer the matter to the prosecutor, saying, “I just think we ought to, frankly, just move this process along—without any kind of prejudice one way or another.”

Fernandez added that he wanted to “go ahead and recommend this over to the prosecutor’s office so that they can make that judgment and let this young man get on with his life, if that’s the determination.”

The hearing had been scheduled  after an Indiana Daily Student (IDS) article was published on Feb. 17, 2023, which questioned whether Bender actually lived in District 6: “City Council candidate David Wolfe Bender is running in District 6, residents say he doesn’t live there”

It was based on that article, that GOP county vice chair William Ellis filed a complaint with the election board.

Also after Thursday’s hearing, on a separate motion, which was made by election board chair Donovan Garletts, the board voted to refer the question of Bender’s eligibility as a candidate to Indiana’s attorney general.

Garletts is the Republican Party’s appointee to the election board.

As Garletts put it, “It’s my understanding that [the AG] can’t do anything on the criminal side—but they can take care of the potential unverifiable candidacy or whatever the word is that you’d like to use.”

The motion to refer the matter to the AG passed on a 2–1 vote.

Dissenting was Fernandez, the former mayor of Bloomington, who was serving on the election board as David Henry’s proxy—just for the purpose of the hearing. Henry is chair of the Monroe County Democratic Party, who appointed himself to the election board on an interim basis, after Shruti Rana resigned in order to run for Bloomington city council District 5— a race that she won.

Voting with Garletts on the motion to refer the matter to the AG was Democrat Nicole Browne, who serves on the election board as Monroe County’s elected clerk.

In declining to support the referral to the AG, Fernandez said, “I don’t think it’s up to the board to challenge the credentials [of Bender to stay on the general election ballot].” Fernandez continued, “At this stage of the game, that’s kind of up to the Monroe County Democratic Party chair, whether they want to take some action, so I will leave it to them, and just keep this simple.”

Reached by The B Square, MCDP chair David Henry texted a statement: “The MCDP appreciates the work of the election board today as we all try to understand the circumstances in District 6. Mr. Bender certainly is owed his due process.” Henry’s statement continues, “As a party, we will have to assess what options there may be for the party and our voters as this potential case unfolds.”

The potential Level 6 felonies weighed by the election board were violations of two state laws:

[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

In simple terms, the accusation against Bender is that he filed documents stating he lived in a place where he knew he did not live.

At the center of Bender’s defense on Thursday was a document that he described as a sublease that he signed with “a friend” of his, to rent the property at 304 East 16th St. That is an address in District 6 where Bender registered to vote. The address was the basis of the candidacy he declared on Jan. 31, 2023.

The sublease document, which Bender provided to the election board on Thursday, called for him to pay a lump sum of $3,000 on May 1 for three months of occupancy, from May 1 through Aug. 1.

The key requirement that Bender needed to satisfy by the Feb. 3 candidate filing deadline was a voter registration in District 6—that is, residency in the district.

There is also six-month residency requirement before “the election” that is spelled out in IC 3-8-1-27.  But Matthew Kochevar, who is co-general counsel for Indiana’s State Election Division, confirmed to The B Square in November 2022, well before the District 6 controversy emerged, that “the election” in IC 3-8-1-27 refers to the November election, not the primary. Kochevar provided a relevant citation from Indiana State Code:

IC 3-8-1-1 Candidates must be registered voters
Sec. 1.

(a) This section does not apply to a candidate for any of the following offices:
(1) Judge of a city court.
(2) Judge of a town court.

(b) A person is not qualified to run for:
(1) a state office;
(2) a legislative office;
(3) a local office; or
(4) a school board office;

unless the person is registered to vote in the election district the person seeks to represent not later than the deadline for filing the declaration or petition of candidacy or certificate of nomination.

In November 2022, Kochevar analyzed the requirement like this: “Under this section, when it comes to a city council candidate wanting to run in the May primary election to win the Democratic or Republican nomination for that office, the candidate must be a registered voter of the election district, in this case the city council district, by the candidate filing deadline to be eligible to be a candidate for that office. The candidate filing deadline for the May 2023 primary election is noon, Friday, February 3, 2023.”

One question is whether a sublease signed on Dec. 9, 2022, which has occupancy starting on May 1, 2023, would meet a residency requirement that has to be satisfied on Feb. 3, 2023.

In an April 6, 2023 letter to the election board from Bender’s attorney, Allison Chopra, she analyzed the subleasing document that Bender signed as demonstrating Bender’s “intent” to reside in District 6, which is one way that state election law [IC 3-5-5-6] defines residency.

For Bender, the matter of the sublease he signed is more complicated—that’s based on Thursday’s testimony from Bender, and from Justin Fox, who is landlord of the 304 East 16th Street property.

Based on their testimony, the person from whom Bender thought he was subleasing the property was apparently not listed on the primary lease. But that sublessor might have himself had an informal subleasing arrangement with someone else who was on the primary lease.

In any case, the wording of the primary lease requires any subletting arrangement to be approved by the landlord, which Fox told the election board he had not done.

Throughout Thursday’s hearing, Bender maintained that he never intended to commit a crime, and believed that he had signed a legitimate sublease—which he believed satisfied the residency requirements of Indiana election law.

At Thursday’s hearing Bender was apologetic, hitting some of the same points he had made in an April 6 letter that he had sent to the election board.

On Thursday, Bender said, “I welcome this hearing, because it is an in-person public forum, where I can apologize both to the members of this board, and staff for my evasiveness over the the first month or so of this process.” He continued, “It also is an opportunity for me to publicly apologize and express regret to the city and the residents of the Sixth District, for the chaos that this has caused. ”

Bender indicated that he did eventually come to understand that the document he had signed was not a legitimate sublease.

Fernandez questioned Bender about his actions after the IDS published its story, which reported that none of the residents at the property on 304 E. 16th Street had ever heard of Bender. Fernandez said, “Just speaking for myself, I guess, I would read that IDS story, pick up the phone and call my friend and say, you know, double-u tee eff [WTF], right?”

Bender replied, “Yeah, I did—there are a couple of records of me calling him. I don’t remember the specifics of the conversation.” Bender added, “I do know that we had spoken before…I had asked him to see a copy of the primary lease of the property. He said he didn’t have one on him.”

Bender’s status as an Indiana University student came up in the context of a state law that Chopra mentioned in her April 6 letter. At Thursday’s hearing, Chopra brought up the same state law [IC 3-5-5-7], which says that college students can choose as the address where they register to vote—either the place where they live while they’re attending the educational institution, or the place they live when they’re not attending the educational institution.

At Thursday’s hearing, Garletts indicated skepticism that two different residences in the same city is the relevant context for the state law giving the two options for college students. Garletts called Chopra’s analysis “an incredibly loose interpretation of that code.” Garletts said the state law was written that way, to allow for students to register at a place where they might live with their parents, when they are not attending classes, or instead at the place where they live when they are attending classes.

Garletts told Chopra, “I would like to believe that you also know that that does not read anything like what you just said.”

Chopra replied, “I would completely disagree with you, sir.” She continued, “You need to look at the black letter language of the law. And there are many types of students.” Chopra added, “Some students don’t go home to their parents. Some students, like I was…I had a husband and two children.”

For some legal observers consulted by The B Square, it’s not clear how the law cited by Chopra would help Bender’s cause. That’s because it applies to situations where there is no dispute that the student does reside in each of two places—at least some of the time. In situations like that, the law says the student can choose either location, but not both, as their residence for the purpose of voter registration.

But for Bender, the 304 E. 16th Street address is disputed as his residence at any time.

During Thursday’s hearing, Bender took pains to distinguish between the issue of his eligibility as a candidate, and the question of whether he had committed a crime. He indicated that he had not filed any documents he knew to be false. “It certainly was never my intent to commit any sort of election fraud or crime,” Bender said.

As for his legal qualifications to be a candidate, Bender said, “But if there are still issues with eligibility, I’ll do anything to fix them. If they’re not fixable under Indiana law, then I’ll leave the race—as a public commitment I’ll make, because I’m not trying to do anything wrong up here.”

Bender indicated at Thursday’s hearing that he has now signed a lease starting May 1, for a place in District 6.

Garletts told Bender he respected him for appearing in front of the election board by invitation, and not under a subpoena, which the election board is empowered to do.

Still, Garletts told Bender, “I do believe with every ounce of my being, that you are not a legal candidate.”

County attorney Jeff Cockerill told The B Square after Thursday’s hearing that he is not aware of any deadline by which either the county prosecutor, or the state attorney general, is required to act, after receiving a referral from the election board.