Colorado appeals panel skeptical of sentencing for former county clerk who breached election systems

DENVER (AP) — A Colorado appeals panel on Wednesday seemed skeptical that a judge could use former county clerk Tina Peters' insistence on spreading election conspiracy theories as part of the reason to sentence her to nine years in prison for orchestrating a data breach of election equipment.

The three-judge panel was dismissive of many of the arguments made by Peters' attorneys. But they grilled the state's lawyer over the trial judge reciting Peters' false statements about elections in handing down her sentence.

“The court cannot punish her for her First Amendment rights,” Appeals Judge Craig Welling said.

The remarks are significant because President Donald Trump has embraced Peters, who was trying to find evidence of the fraud that he continues to claim, without evidence, caused him to lose the 2020 presidential election. He's threatened Colorado with “harsh measures” if it does not release her and even issued a pardon of her last month, although she was convicted on state crimes that he cannot erase.

Peters’ lawyers have argued the president has a right to pardon people who committed crimes to carry out federal duties, such as preserving election information. But that argument did not even come up during oral arguments as they appealed her sentence Wednesday.

A member of her legal team, Peter Ticktin, said they didn’t have time to argue about the pardon during the 30 minutes allotted by the court. But he also said he thinks Gov. Jared Polis will grant Peters clemency, based on his recent comments. Polis, a Democrat, has said he would consider granting clemency for Peters, characterizing her sentence as “harsh.”

The former clerk in Mesa County, in the far western part of Colorado, was convicted of state crimes for orchestrating a data breach of the county's elections equipment, driven by false claims about voting machine fraud after Trump lost his reelection bid. She is serving a nine-year sentence at a state prison in Pueblo after being convicted in 2024 in her home county, a Republican stronghold that supported Trump.

Prosecutors said Peters became fixated on voting problems after becoming involved with activists who had questioned the 2020 presidential election results, including Douglas Frank, an Ohio math teacher, and MyPillow founder Mike Lindell.

Peters used another person's security badge to allow a former surfer affiliated with Lindell, Conan Hayes, to watch a software update of her county's election management system. Prosecutors said he made copies of the system's hard drive before and after the upgrade, and that partially redacted security passwords later turned up online, prompting an investigation. Hayes was not charged with any wrongdoing.

Peters didn't deny the deception but said she had to do it to make sure election records weren't erased. She claims she should not have been prosecuted because she had a duty under federal law to preserve them — a contention that drew sharp skepticism from Wednesday's panel.

Instead, the three judges all expressed concern about District Court Judge Matthew Barrett's statements during Peters' sentencing. He called her a “charlatan” and said she posed a danger to the community for spreading lies about voting and undermining the democratic process.

The courtroom was filled with Peters' supporters, who waited in line for as long as two hours to get a spot inside. Some said “yes, yes” when Judge Lino Lipinsky turned the discussion to her sentence and questioned whether Barrett made a mistake by bringing up Peters’ election conspiracy activism during sentencing.

Senior Assistant Attorney General Lisa Michaels said Barrett was responding to a lengthy presentation Peters had just concluded during the sentencing hearing, repeating the debunked conspiracy theories that she was trying to prove.

“She made it relevant,” Michaels said of Peters. “She had a slideshow. She had pages and pages going on about this.”

Michaels contended that Barrett made clear in the sentencing that he was imposing a sentencing her for the specific crimes she was convicted of at trial. But the elements of one of those, a felony conviction for criminal impersonation, was improperly presented to the jury with language for the misdemeanor version of the crime, another element of her case that alarmed the panel's judges.

Last month, Peters lost an attempt in federal court to be released from prison while she appeals her conviction.

Her lawyers say she also is entitled to at least a new sentencing hearing because Barrett based his sentence partially on a contempt conviction in a related case that the appeals court threw out last year. They also are asking the appeals court to recognize Trump's pardon and immediately set Peters free.

It is unclear when the panel might rule. If it finds problems with the ways Peters was sentenced, it can send the case back for resentencing.

Peters’ release has become a cause celebre in the election conspiracy movement.

Trump has lambasted both Polis and the Republican district attorney who brought the charges, Dan Rubinstein, for keeping Peters in prison. The Federal Bureau of Prisons tried but failed to get Peters moved to a federal prison.

The Trump administration recently took actions that threaten to hurt Colorado, including freezing federal funding for some social safety net programs and announcing the dismantling of the National Center for Atmospheric Research in Boulder.

Jake Lang, who was charged with assaulting a police officer during the Jan. 6, 2021, attack on the U.S. Capitol and was later pardoned by Trump, announced on social media last month that “January 6er Patriots” and U.S. Marshals would storm a Colorado prison to release Peters unless she is freed by the end of this month.