Gessler: 141 voters are illegally registered

Scott Gessler

Attorneys for embattled Mesa County Clerk Tina Peters have filed a direct appeal to the Colorado Supreme Court, asking its seven justices to overturn an order by District Judge Valerie Robison barring Peters and her deputy from overseeing this fall’s elections.

In his request for appeal filed late Monday, former Secretary of State Scott Gessler, who is representing Peters and Deputy Clerk Belinda Knisley, wrote that Robison overstepped her authority in removing the clerk as the county’s designated election official.

Called a Section 113 filing, Robison ruled last week that Peters had “committed a breach and neglect of duty and other wrongful acts.”

Gessler said the law doesn’t allow Robison to declare a vacancy in such matters, which spurred the Colorado Secretary of State’s Office and the Mesa County Board of Commissioners to replace Peters as the chief election overseer in the county for the fall election, voting for which has already begun.

“This case presents a radical departure from both statute and controlling case law, and if left to stand it will allow the secretary to use Section 113 in a manner never intended by the legislature or approved by this court,” Gessler wrote to the high court.

“Under Section 113, only a private individual — candidate, party representative, nominator or eligible elector — may bring a Section 113 action,” he added. “Yet here, the secretary brought an action in her official capacity.”

Robison also ruled that Peters and Knisley were “unable or unwilling to appropriately perform the duties of the Mesa County Designated Election Official,” agreeing with the secretary of state and county that former Secretary of State Wayne Williams and Mesa County Treasurer Sheila Reiner should take on that role.

Gessler wrote that, too, is incorrect.

“The lower court did not have authority to declare an absence and remove and replace a clerk or deputy clerk,” Gessler wrote. “No statute gives a lower court this authority, and (declaratory judgment laws) likewise does not constitute sufficient procedural authority for a district court to make a declaration of inability or unwillingness to serve.”

The Secretary of State’s Office filed a lawsuit against Peters and Knisley after determining that both played a role in compromising the county’s Dominion Voting System election equipment, which the county and 61 others in the state have long used to tabulate election results.

As a result, Peters and Knisley, among others, are the subject of local, state and federal criminal investigations.

Those investigations were launched after state passwords unique to the county’s election equipment, which were decertified and since replaced, appeared on a voter-fraud conspiracy theory social media network.

Gessler wrote that Peters never authorized public release of those passwords, but attorneys for the state have repeatedly said she made it possible by allowing an unauthorized person access to the county’s voting equipment in violation of state-ordered security protocols, something Gessler has acknowledged in his court filings.

Soon after that release, Peters appeared at a election conspiracy event sponsored by MyPillow CEO Mike Lindell, a fervent supporter of former President Donald Trump and a believer that the 2020 election was stolen from him.

After that South Dakota event, Peters remained out of state for about a month, saying she did so because she feared for her safety, although there is no evidence she was ever in any danger. She claimed she was working remotely, but county commissioners said they had little to no contact with her during that time.

She returned shortly after criminal charges were filed against Knisley for ignoring a county order to have no contact with anyone in the clerk’s office. That order placed Knisley on paid administrative leave pending the outcome of an internal investigation that she had created a “hostile work environment,” allegedly for telling employees not to cooperate with those criminal investigations or a separate Human Resources probe into her actions with clerk employees.

Gessler’s filing makes no mention of the reasons behind that internal investigation, nor that Knisley was charged after twice defying county orders to stay away.

“When Clerk Peters directed Deputy Knisley to retrieve necessary documents from a county work computer at the clerk’s office, Mesa County kicked Deputy Knisley out of the building and filed criminal charges,” Gessler wrote.

Actually, it was Mesa County District Attorney Dan Rubinstein who filed those charges, which included a class 4 felony charge of second-degree burglary, and a class 2 misdemeanor charge of cyber crime. If convicted on both charges, Knisley could face up to seven years in prison and more than $500,000 in fines. Her first hearing on the matter is scheduled for next month.

In his filing, Gessler argues that the only penalties courts could impose over who should oversee elections are limited to appointing someone to supervise Peters and Knisley to ensure they adhere to Colorado election laws.

“The authority is confined to supervising the ‘conduct’ of elections, not removing or replacing officials,” Gessler wrote.

“The word ‘supervise’ does not include the power to remove or replace personnel. It is limited to ‘coordinate, direct and inspect continuously,” he added. “Accordingly, the secretary may oversee clerks to ensure that they comply with election laws and regulations. But this is a far cry from removing and replacing a DEO in contravention of a mandatory statute.”

Gessler goes on to attack Reiner. The two often clashed when Gessler was secretary of state from 2011 to 2015 and Reiner the county’s clerk, primarily over Gessler’s repeated, and still unproven, claims that thousands of illegal ballots had been cast in the 2010 election.

While state laws allow for appeal on district court rulings directly to the Supreme Court in certain circumstances, bypassing the Colorado Court of Appeals, there are no laws or rules governing when justices must act, according to the Colorado Judicial Branch.

As a result, the county and the Colorado Attorney General’s Office won’t file response briefs unless the court agrees to take the case.

It takes a majority of justices to agree to hear an appeal.