The Monroe County Election Board referred the case of David Wolfe Bender, an IU student and Democratic nominee for city council, to Monroe County Prosecutor Erika Oliphant and Attorney General Todd Rokita on Thursday, concluding the board's months-long investigation into Bender's residency.
During the hearing, Bender said he did not knowingly file a fraudulent report when he filled out his declaration of candidacy and voter registration form and apologized for the “chaos” of the past few months. However, board members voted unanimously to send his case to the Monroe County prosecutor.
The violations considered in the hearing were IC 3-14-1-13 and 3-14-3-1.1, which both refer to fraudulent reports. The first refers to a candidate who knowingly files a false report, while the latter refers to filing a false voter registration application. Both are Level 6 felonies, which is the least serious type of felony under Indiana law.
A Level 6 Felony requires a prison sentence, which ranges from six months to two and a half years. However, a court can enter a judgement of a Class A misdemeanor, particularly if it is a first offense. This does not require jail time but has a maximum penalty of a year in jail.
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A history of the investigation into Bender’s residency
In January, Bender changed his voter registration from a residence in District 4 to a house in District 6. On candidate forms, he claimed the District 6 address as his residence, but an IDS investigation found Bender did not live there, according to residents of the address.
In March, the election board granted an official investigation into Bender's residency following a formal complaint from William Ellis, the vice chair of the Monroe County Republican Party. In the months since, questions surrounding Bender’s residency had gone mostly unanswered.
While planning for an official hearing, the board received correspondence from Manny Herceg, Bender’s former lawyer, implying the three-person board, composed of two Democrats and a Republican, had political motivations for investigating Bender. He also told the board Bender intended to withdraw from the race after the primary election.
In a letter to the board on April 6, Bender said he fired Herceg in part due to how the lawyer communicated with the board. Bender hired a new lawyer, Allison Chopra, and said he planned to continue to run by filing paperwork in a recently obtained separate address in District 6.
[Related: City Council candidate David Wolfe Bender is running in District 6, residents say he doesn't live there]
Bender takes the stand
Facing more than an hour of questioning from the board, Bender repeatedly said he believed his sublease was valid and that he complied with the law.
Bender claimed he believed a friend was a tenant for the property when Bender signed the sublease agreement with him. Bender said he found out after the fact – either in late February or early March — that the person was not officially listed on the lease.
Bender called the lease an “informal agreement” but distributed copies with the sublessor’s name redacted to the election board members.
“It’s entirely possible that my understanding of that statute is wrong, but it certainly is never my intent to commit any sort of election fraud or any crime,” he said.
Board members ask questions
Questions from board members ranged from discussions of Bender’s eligibility, the specifics of Indiana Code and the timeline of events over the past few months. Members included Monroe County Clerk Nicole Browne, Republican appointee and board chair Donovan Garletts and former Bloomington mayor John Fernandez, who was appointed as a proxy for Democratic appointee David Henry.
Browne questioned the meaning of residency, asking Bender if he would want important documents from a doctor or a bank to be sent to the place he intended to live or the place where he lays his head.
Bender replied that the documents should be sent to the place he is currently residing in but said he didn’t see the connection with the matter at hand.
“And you wouldn’t change (the address) until you actually moved there,” Browne said.
[Related: Election board continues investigation despite David Wolfe Bender's intent to withdraw]
Chopra interjected to say the situations were different. She referred to IC 3-5-5-7, which allows students to register at the address where the student lives when the student is not attending a postsecondary institution. Bender said the original sublease was from May to August, when he would not be attending college.
When asked by Garletts, Chopra confirmed there is no case law on this subject matter. Garletts said he disagreed with the use of IC 3-5-5-7 for this purpose.
“That is an incredibly loose interpretation of that code,” Garletts said.
He said the code was put in place for people to register at home with their parents or guardian outside of college — not moving somewhere in the same city for the summer where they have never lived before.
Chopra disagreed, saying one had to focus on the “black-letter language of the law.” Black-letter law describes well-established legal rules usually set on prior case law.
“To classify students as one type of person, one type of group, I think is a little misguided,” she said.
Later, Fernandez asked if Bender contacted the friend he signed a sublease agreement with after the publication of the IDS article.
Bender said he called him but couldn’t recall the specifics of the conversations. He said he had asked him to see a copy of the primary lease during one call, but said his friend said he didn’t have it on him.
When asked why Bender did not correct his voter registration immediately after discovering the agreement was invalid, Bender said his former lawyer told him it would be bad optics.
Bender said he plans to move into his new residence in District 6 sometime next week and didn’t want to correct his voter registration until he was fully moved in.
Next, Browne referenced the Indiana Election Division candidate guide, which says a candidate for city council must reside in the district in which they are seeking election for six months prior to the election. However, Bender and his lawyer argued the word “election” referred to the general election, making the residency cutoff land in May.
[Related: David Wolfe Bender announces he will not withdraw from City Council race]
The board then approached the subject of Bender’s CFA-4 form, which documents campaign contributions and expenditures. Garletts took issue with the fact that Bender continued to fill out candidate forms as late as April, at least a month after discovering his residency in District 6 was invalid.
Bender said he had no other option but to fill out the form, but Garletts disagreed.
“To answer your question David, there were a thousand things you could have done other than staying silent,” he said.
Chopra then advised Bender to not answer any more questions about the CFA-4.
An invalid sublease agreement
The IDS obtained a copy of the sublease agreement Bender gave the board members. The document is signed by Bender and his friend, with the initials W.S., dated Dec. 9, 2022.
The document lists W.S., Bender’s friend, as the landlord and Bender as the tenant. It says the tenant must pay a single installment of $3,000 to the landlord before assuming the residence.
The document makes no reference to the actual landlord of that property, Justin Fox, or his company. The language and format of the document is almost an exact copy of several templates available online.
Fox said during the meeting that he did not know Bender and has never had any knowledge of him living at the house or planning to live at the house.
He confirmed the occupancy limit was three and that the person Bender signed a sublease with was not on the lease.
Bender says he will leave the race if unable to correct forms
Throughout the hearing, Bender continually emphasized he genuinely believed everything he was doing was legal and valid.
As for why he decided to seek residence in the sixth district instead of the fourth district, where his Henderson Street address is, Bender said he felt he represents the student-heavy sixth district more than the fourth district.
Ultimately, Bender said he would leave the race if the candidate filings could not be fixed.
As the meeting concluded, Fernandez said while he doesn’t believe there’s enough evidence for the board to prove Bender knowingly filed a fraudulent report, he thought the board should refer the issue to Monroe County Prosecutor Erika Oliphant. He made a motion, which passed unanimously.
[Related: City council approves joint Human Rights Commission with the county]
Garletts said he was also concerned about Bender’s candidate eligibility and suggested the case be referred to Attorney General Todd Rokita as well.
“What I do believe, with every ounce of my being, is that you are not a legal candidate,” he said.
Rokita would not be able to make any criminal judgements, Garletts said, but could issue an injunction to pause the candidacy while evidence was considered.
Garletts made a motion, which passed 2-1, with Fernandez voting no.
After the decision, Bender left the room and said he would not comment at this time.
Bender did not respond to an emailed request for comment by publication. The IDS reached out to the person Bender claims to have signed the sublease with but did not receive a response by publication.
Editor's Note: Bender was previously employed by the Indiana Daily Student.