Democratic Colorado Secretary of State Jena Griswold outlined conditions in January for Peters, a Republican, to act as Mesa County’s designated election official this year. When Peters refused to abide by those rules, Griswold’s office asked the court to issue an order barring Peters from overseeing the 2022 primary and general elections.
“Clerk Peters must follow the secretary of state. The idea that it’s a two-way street and clerks can run elections how they want hasn’t been the case since 1963,” Assistant Attorney General LeeAnn Morrill said during testimony.
“I would suggest to the court that both history and the law have a term for public officials who swear by an oath and don’t abide by it,” she said. “That term is faithless.”
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A similar lawsuit last year successfully blocked Peters from participating in the 2021 coordinated general election.
Peters is in a web of legal troubles following her alleged facilitation of a security breach into the county’s election system during a 2021 software update. She allowed images to be made of election machine software and secure passwords to be leaked online, which led to the decommissioning of the county’s election machines. She faces a grand jury indictment of multiple felony and misdemeanor charges related to that conduct.
“We are seeking injunctive relief here. Injunction means equity, and equity means public interest,” Morrill said in closing arguments Thursday. “The public interest is: in the role of DEO, who is best positioned to best serve the voters of Mesa County in conducting the 2022 elections?”
The state argues that person is Brandi Bantz, an elections official who also has the support of the Mesa County commissioners.
Lawyers for the state are asking Robison to bar Peters, Deputy Clerk Belinda Knisley and Second Chief Deputy Clerk Julie Fisher from acting as the county’s main election official. On Thursday, Fisher testified that she gave Knisley access to secure areas of the office after Knisley was placed on administrative leave in August. Peters named Fisher as a second deputy in December. Attorneys for the state argued that Fisher does not have enough relevant experience to successfully run an election and engaged in misconduct for helping Knisley.
The attorney for Peters, Scott Gessler, a former Republican Colorado secretary of state, argued that the current case is a repeat of last year’s lawsuit ahead of the 2021 election and questioned whether similar litigation will be brought up every year in a never-ending cycle.
“This should not be a case where the cake is baked already in advance. In other words, the secretary and the county litigated this stuff in 2021. They said there were all kinds of problems, and the court agreed with their request for relief with the declaration that Peters was untruthful. The secretary invites the court to simply rinse, wash and repeat,” he said.
“Is there no end to this court’s jurisdiction over the actions of 2021?”
Morrill, however, argued that Peters’ refusal to sign the secretary’s order in January created new facts in the case. She said the state did not ask the court last year to bar Peters from this year’s elections because it gave Peters an opportunity to change her behavior.
Question of free speech
One of Giswold’s conditions for Peters to run this year’s elections was for Peters to repudiate comments she made about the county’s Dominion Voting Systems election machines. In a Facebook Live broadcast from January, Peters said “We’ve got to get those machines so . . . they’re not able to do what they’re designed to do.” Griswold asserted those statements proved a willingness to compromise equipment.
Gessler said those statements, however, amounted to free speech and were no more than public criticism. He said that none of her statements show her intention to break the law.
“She’s entitled to criticize election procedures if she thinks they are wrong,” he said. “I understand people may dislike that and there’s certainly a lot of polarization in this country about that issue … and this case is squarely in the middle of that. But she still has that right, not only as an elected official but as a private individual under her First Amendment rights.”
In rebuttal, Morrill said Peters’ elected position limits her speech rights.
“Clerk Peters does not stand before you today in this proceeding as a private citizen, as an individual resident of Mesa County. She is named in her official capacity. As a result of that, it’s exactly right that the secretary of state is putting words in (her) mouth and making her repudiate certain public statements made to date,” she said.
She noted that the so-called government speech doctrine asserts that the government has its own rights as a speaker.
“It’s very clear that the state can put words in its political subdivisions’ mouth or it can take them out,” she said.
In the two days of testimony, the court heard from witnesses including Fisher, Mesa County Commissioner Scott McInnis, Deputy Secretary of State Christopher Beall and former Secretary of State Wayne Williams. Peters did not herself testify.
Robison said she will issue a decision by mid-May. Primary elections are June 28, and county election workers have already begun preparing for them.
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