Dear Members of the Colorado Republican State Central Committee,
I write in the public interest to start discussion of how Colorado’s election system can be improved. I am one of the lawyers representing Tina Peters in U.S. District Court case no. 23-cv-03014-NYW captioned Peters v. United States et al, and 10th Circuit Court of Appeals case no. 24-1013 (appeal of Order dismissing DA Daniel Rubinstein). The information herein is part of the pleadings and briefs in the above cases.
Republican officials made statements about Tina Peters in an email published by the Denver Post on February 5, 2024. The authors raise important public issues: Is Colorado’s election system secure and transparent? Does it comply with federal and state law? These questions should be publicly debated.
The authors incorrectly state that Tina Peters made a backup image of the Mesa County computer hard drive “because she believed she was proving election fraud.”
The truth is that Tina Peters made a backup image of the Mesa County computer hard drive because she was required to do so by federal law.
52 USC §20701 requires every county clerk to preserve computer election records for 22 months after a federal election. A clerk who violates this law commits a crime punishable by one year in jail.
On April 30, 2021, the Secretary of State notified Tina Peters that its agents would install new software. She knew that during the installation process, records of the November 2020 vote tabulation would be erased. Peters faced a decision. If she allowed the Secretary of State to erase election records on the computer, without making a backup copy, she would be committing a crime under federal law.
Peters acted to preserve the election records required by federal law. She engaged a consultant to make a backup image of the computer hard drive.
The U. S. Supreme Court has ruled consistently that a person who commits an act in obedience to federal law is immune from prosecution in state court. Ms. Peters’ case involves a straightforward application of the legal doctrine known as Supremacy Clause immunity. Article VI, clause 2 of the U.S. Constitution provides that federal law is supreme over laws enacted by any state. Consequently, state courts lack jurisdiction to prosecute officials who commit an act required by federal law. Here are two of many examples. In re Neagle, 135 U.S. 1, 75, 10 S. Ct. 658, 34 L. Ed. 55 (1890) held that a California state court lacked jurisdiction to prosecute a federal marshal for murder, after he shot and killed a man whom he thought was assaulting a federal judge. In Wyoming v. Livingston, 433 F.3d 1211(2006) the 10th Circuit Court of Appeals held that Wyoming state court lacked jurisdiction to prosecute a contractor for criminal trespass, after the contractor entered a rancher’s private land while helping the U.S. Wildlife Service capture and tag wolves. Following these precedents, Ms. Peters should be immune from prosecution in state court for performing her duty under federal law to preserve election records.
The Secretary of State is elected to ensure that elections are secure, transparent, and comply with federal and state law. Democrats and Republicans agree on these standards. Unfortunately, in my opinion the current Secretary of State, Democrat Jena Griswold, has abused her office to silence the free speech of anyone who questions the security or transparency of elections that she oversees. When people raise legitimate questions about the election system, Griswold labels their concerns “disinformation.”
In August of 2021 an unknown person published on the internet the backup image of the Mesa County hard drive. Secretary Griswold, in my opinion, was afraid of what the computer image would reveal about the voting system. Griswold’s Deputy Secretary of State, Chris Beall, immediately called Mesa County DA Daniel Rubinstein and asked him to investigate and prosecute Peters. On August 31, 2021, Democrat Attorney General Phil Weiser assigned two of his prosecutors to bring charges against Peters in Mesa County. The prosecution was, in my opinion, intended to make other county clerks afraid to ask legitimate questions about the Colorado election system.
Griswold then sued Tina Peters in civil court to remove her from office. In 2022 Griswold also sued Elbert County Clerk, Dallas Schroeder, another Republican, asking the court to prevent the public from seeing a backup image of the Elbert County hard drive. In a legal proceeding involving Mr. Schroeder and Griswold, Deputy Secretary Beall admitted under oath that it was legal for a county clerk to make a backup copy of the computer hard drive.
Q. [By counsel] And you testified that when Mr. Schroeder imaged the hard drives of the Elbert County voting system, it was legal for him to do so, true?
A. [Christopher Beall, Deputy Secretary of State] It was legal under the — excuse me. Legal under the rules — Secretary of State rules at the time, yes.
The authors state, “there was no fraud in Mesa County elections.” This is partly true, but also misleading. It is true there is no proof that ballots in Mesa County were cast by anyone other than a registered voter. However, the statement is misleading because the copy of the Mesa County computer hard drive shows that the vote tabulation system is not secure, it is not transparent, and it does not comply with federal and state law.
Federal law requires computer tabulation of votes to be auditable. Qualified cyber and database experts analyzed the forensic image. They reached three conclusions: (1) the installation of new software erased all election data and software on the hard drive of the Mesa County election computer, which violated 52 USC §20701; (2) normal operation of the voting system during two consecutive elections overwrote records which federal law required to be preserved for future audits; (3) there is supposed to be a single database for tabulating ballots. The Mesa County computer created two databases. Neither database included all ballots. This made it impossible to audit the election.
D.A. Daniel Rubinstein published a report May 19, 2022, claiming that elections manager Sandra Brown caused the creation of the second database during the November 2020 election. However, the same double database re-occurred during the April 2021 Grand Junction municipal election. Mr. Rubinstein has never explained how the exact same anomaly occurred during two consecutive elections. A reasonable person would ask, “Was the computer programmed to create the same double database in both elections?”
Citizens expect that Tina Peters can defend herself by proving that federal law required her to make a backup image of the computer hard drive. They expect that at trial Ms. Peters will be allowed to expose the government’s motive for prosecuting her, by showing that the government is concealing illegalities in the vote tabulation system. However, Mesa County District Court ruled that Ms. Peters may not present evidence about the voting system.
Elections belong to the people. Ballots are secret, but the identity and qualifications of voters is public information. How votes are counted must be transparent. Colorado citizens are entitled to know the truth about our election system.
The authors say that they are “experts in election processes” and that they “administer with integrity, an election system that serves our Constitution and every Coloradan casting a ballot.”
Can the authors prove it? I challenge them to participate in a public debate on the following question:
Is the Colorado election system secure, transparent, and compliant with federal and state law?
I await their answer. Please reply to brief@johncaselaw.com.
Respectfully John Case, Denver CO
