Colorado court reverses sentence for ex-election clerk Tina Peters but conviction stands

DENVER (CN) — The Colorado Court of Appeals on Thursday reversed former elections clerk Tina Peters’ criminal sentence while affirming her conviction related to a 2021 incident at Mesa County’s election headquarters, finding the trial judge improperly considered statements of free speech in calculating the sentence.

“The division reverses her sentence because it was based in part on improper consideration of her exercise of her right to free speech,” wrote Colorado Court of Appeals Judge Ted Tow in a 73-page opinion.

In the wake of the 2020 presidential election, as President Donald Trump characterized former President Joe Biden’s win as the “Big Lie,” a group of Peters’ conservative constituents in western Colorado started questioning her on the results of the 2021 Grand Junction municipal election, several months later.

When Peters learned a voting machine update would erase the computers’ records, she sought to take action. After the secretary of state’s office rejected Peters’ requests to have an observer present, she instructed her deputy clerk to turn off security cameras and arranged for her associate, Conan Hayes, to photograph evidence of the records.

The Republican-run district attorney’s office investigated and debunked Peters’ theory that illegal votes had been counted. Prosecutors ultimately pursued charges holding Peters accountable for passing Hayes off as Gerald Wood, a local IT expert for whom she obtained county credentials.

Following a 10-day trial in August 2024, a jury found Peters guilty of three felony counts of attempting to influence a public servant and one felony count of conspiracy to commit impersonation, plus misdemeanor counts of official misconduct, violating her duties and failing to comply with the secretary of state’s requirements.

Twentieth Judicial Judge Matthew Barrett sentenced Peters to nine years in prison.

On appeal, Peters claimed Barrett punished her for protected speech and wrongfully calculated her sentence with an eye toward a contempt conviction, which the Colorado Court of Appeals has since vacated.

“Here the trial court’s comments about Peters’ belief in the existence of 2020 election fraud went beyond relevant consideration of her sentencing,” Tow wrote in the opinion. “Her offense was not her belief, however misguided the trial court deemed it to be, in the existence of such election fraud; it was her deceitful actions in her attempt to gather evidence of such fraud.”

Peters also renewed her opposition to the state’s ability to prosecute her for actions taken to preserve election records, acts she argued were protected by federal law.

The court rejected the argument, and questioned why she hadn’t tried to remove the proceedings to federal court.

“Peters cites no case, nor are we aware of any, in which supremacy clause immunity has been extended to a state officer acting pursuant to a federal statute,” Tow wrote in the opinion. “There is simply no authority for extending immunity that far.”

Colorado Attorney General Phil Weiser applauded the decision affirming the conviction.

“Whatever happens with her sentence, Tina Peters will always be a convicted felon who violated her duty as Mesa County clerk, put other lives at risk and threatened our democracy. Nothing will remove that stain,” Weiser said in a statement.”

“Moreover, the court affirmed that the president’s pardon of Tina Peters is meaningless and won’t free her from prison,” Weiser added.

While Peters has struggled to find relief from either state or federal court, she has received attention from the executive branch. Last December, Trump attempted to pardon the 70-year-old Peters. While it’s been commonly understood that the president does not have the power to overturn state convictions, Colorado Governor Jared Polis, a Democrat, said last month he is reviewing whether to grant clemency to Peters due to her age and declining health.

The court found it held jurisdiction over the case, and the president’s pardon did not “reach” the state conviction.

Along with Tow, Colorado Court of Appeals judges Lino Lipinsky and Craig Welling signed the opinion; all three were appointed by Democratic Governor John Hickenlooper.

In sending the case back for resentencing, the court denied Peters’ request to send the case to a different judge.

Dan Rubinstein, district attorney for the 21st Judicial District, told Courthouse News by email he expects the court to reaffirm the length of Peters’ sentence.

“This decision underscores the strength and integrity of the judicial process,” Rubinstein wrote. “The court concluded that the trial was fair, the defendant’s rights were fully protected, and the evidence was sufficient to support the jury’s verdicts, which were affirmed in full."

Follow @bright_lamp