Neither the Colorado Secretary of State nor the Mesa County Board of Commissioners have the authority to remove Tina Peters as county clerk, or Belinda Knisley as her deputy, Scott Gessler wrote in his opening statement on a lawsuit to prevent both from overseeing the fall election.
Gessler, a former secretary of state who now practices election law, wrote that the entire matter against Peters and Knisley is nothing more than political.
“The petition seeks an ill-informed rush to judgment — a request consistent with a whirlwind of media attention, dramatic replacement of an elected official, criminal investigations, and charged political accusations,” Gessler wrote late Wednesday to District Judge Valerie Robison, who is reviewing the lawsuit.
“In short, there is no legal basis to declare a fictional ‘absence,’ remove an election clerk and recorder (or her deputy) from her duties, and give the secretary (or intervenor) the power to choose a replacement,” Gessler added.
Colorado Attorney General Phil Weiser, along with Mesa County Attorney Todd Starr, countered that neither the secretary of state nor the commissioners are attempting to remove the two from their elected and appointed positions.
Instead, Secretary of State Jena Griswold and the commissioners are enforcing their authority to put someone else in charge of the county’s elections temporarily because Peters and Knisley are incapable of doing their jobs, in part, because they both failed to follow proper election security protocols or comply with lawful orders to do so, the two attorneys said.
“Petitioners (the Secretary of State’s Office) and the board are in agreement as to the relief the court should order here: finding that respondents are both absent and unable to perform their required duties, and that (Wayne) Williams should be appointed as the designated election officer, and (Sheila) Reiner as the election supervisor,” Weiser wrote in his brief.
“Mesa County had no choice but to recognize the actions of the Secretary of State and, thus, take remedial action by exercising its authority to appoint a DEO (designated election official) to best ensure a successful coordinated election,” Starr added. “Respondent Peters has played no role in any of the activities of the election division, thereby acquiescing to the Secretary of State’s Order (to refrain from doing so).”
Essentially, Weiser is arguing that for various reasons — ongoing criminal investigations, Peters’ staying away from the county for more than month, her repeated failures to comply with state orders, and an internal harassment complaint that led to Knisley being placed on paid administrative leave and criminal charges filed against her — both women are absent from their jobs.
As a result, Starr is arguing that under Colorado law, the board has the authority to appoint a new designated election official when there is a vacancy in that position.
Gessler, however, wrote that the two have put the cart before the horse, writing that all of those actions occurred as a result of improper steps from the Secretary of State’s Office to block Peters and Knisley from doing their jobs.
“This court should take a step back from the emotionally charged atmosphere, apply the law, and decline the secretary’s unlawful acts to remove an elected official from her duties,” Gessler’s brief says.
This all began more than a month ago when the Secretary of State issued three orders to Peters calling on her to verify that the county’s election equipment had not been compromised after images of secure pass codes were taken by an authorized person who wasn’t a county employee, and that hard drives were copied at a time when security cameras were turned off.
Those actions led to that sensitive information being posted online, in violation of security protocols, Weiser said in his brief.
Weiser’s brief also said those orders were issued only after Peters failed to comply with orders to verify that equipment was secure, and instead flew off to a voter-fraud conspiracy theory event in another state in early August, returning to Colorado only a week ago.
Gessler, however, said Peters was trying to act within state and federal election laws, saying she acted appropriately.
“After hearing multiple reports and concerns about fraud, Clerk Peters also authorized the images in order ‘to prevent fraud and corruption in elections,’” Gessler wrote. “In short, her goal was to follow the law; she did not intend to mislead the electorate.”
Gessler said that at the time, there was no state rule or regulation that bars someone access to sensitive election equipment who is not a county employee, as Griswold’s office contends.
He also argues that had Peters not ordered the complete copying of hard drives, that important election information would be lost.
Weiser, however, says protocols require Peters to make backup copies of all election-related results for the past 25 months, but instead she made copies of entire hard drives, including computer operating software.
In his brief, he wrote that many of the files that had been deleted were numerous log files that have nothing to do with past elections.
“Despite making the audacious claim that the secretary is responsible for destroying election records, nowhere in Peters’ counterclaim or in the 80-page ‘report’ attached to her counterclaims does she cite the definition of ‘election records,’” Weiser wrote. “A cursory review of that definition makes clear that the purported ‘evidence’ she obtained in violation of the election code and rules did not consist of ‘election records’ required to be maintained. Log files do not constitute election records.”
A hearing on the case has been set for next Monday. It is unknown when Robison will rule.