Two doors and an insurance policy: Inside the legal backstops in Tina Peters’ October 16 hearing

By Jen Schumann | Rocky Mountain Voice

After more than four years of courtroom battles and appeals, former Mesa County Clerk Tina Peters’ fight now hinges on a single federal question: whether Colorado courts violated her constitutional rights by denying her bond pending appeal. 

The Oct. 16 motions hearing was part of a broader federal proceeding stemming from Peters’ Application for a Writ of Habeas Corpus filed in February. That petition asks the U.S. District Court to determine whether her ongoing detention violates the Constitution. It argues that the state’s denial of bail pending appeal punished Peters for her speech, violated her First and Fourteenth Amendments, and ignored the federal obligations that she says guided her actions as Mesa County Clerk under the Supremacy Clause. 

During the Oct. 16 hearing, Judge Varholak briefly noted that the federal government had once intervened in the case but was no longer involved. He recalled that a previous “Statement of Interest” from the U.S. Department of Justice had been denied months earlier, and that the United States had not participated since. 

The motions hearing served mainly to define the scope of what the court could review—an essential step before addressing the constitutional claims raised in Peters’ habeas petition. The judge struck witness testimony from a Venezuelan election insider, denied a request for judicial notice of a Dominion sale—and accepted an amicus brief filed on behalf of 3,057 citizens. 

The question now is sharply defined—whether Colorado’s denial of Peters’ bond pending appeal was a lawful exercise of discretion or a violation of her constitutional rights.

The evidentiary “insurance policy”

Attorney John Case described the two sworn witness transcripts his team filed as an “insurance policy”—a safeguard against the possibility that the federal court might adopt the state judge’s conclusion that Peters’ statements were “lies” that made her a danger to the community.

The filings included sworn testimony from two confidential witnesses. The first, a former Venezuelan election official, testified that he participated in the country’s national voting system and later examined digital election records from Mesa County. He said the Dominion software used in Colorado shared the same structural vulnerabilities as Smartmatic programs he had seen in Venezuela, including system-access flaws and audit logs that could be overwritten. His statements appear in a Rumble video and in two corresponding transcripts—70-1 and 70-2.

According to the second witness—who identified himself as the former security chief to President Hugo Chávez—Smartmatic founders met with Venezuelan officials behind closed doors to develop software meant to deliver reliable victories. He said he saw vote totals altered live during the 2013 presidential contest and alleged that comparable methods later appeared outside Venezuela. Those claims are set out in Exhibit 76-1, which also references coordination with China, Iran and Serbia on election technology.

Peters’ notices of filing for witness one and witness two argued that these statements showed her own claims about voting systems were true. 

The State responded in separate motions to strike with supplemental filing—arguing that Peters conducted an unauthorized deposition, citing Shinn v. Ramirez and the narrow limits on new evidence under 28 U.S.C. §2254(e)(2). The Attorney General’s office argued that whether her claims were true or false did not matter under habeas review.

Judge Varholak agreed. 

He ruled that the statements were procedurally barred and irrelevant to the First Amendment question, ordering both witness notices stricken. His minute order granted the State’s motions to strike, denied judicial notice and accepted an Amicus Curiae filing.

The accepted amicus brief

While the court excluded new evidence from Peters’ defense, it allowed a novel filing from the public. The court accepted an amicus curiae brief—Latin for “friend of the court,” meaning a filing from outside parties who seek to offer legal or constitutional perspectives that may help the judge’s decision. 

It was submitted on behalf of Terpsehore Maras and 3,057 additional American citizens, represented by Louisiana attorney Grant Guillot.

The group’s motion for leave portrays them as ordinary citizens from across the country who believe they share Peters’ experience of being threatened or ridiculed for speaking openly about election integrity. In their brief they say they come from “all 50 states” and that they “share with Ms. Peters the experience of being threatened, ridiculed, or subjected to retaliation for exercising their constitutional right to question and speak openly about election integrity.” 

They argue the case transcends one individual dispute, asserting that Peters’ situation “extends beyond her individual circumstances,” and raises systemic constitutional questions about the punitive use of bail and political speech suppression. 

As part of their rationale, they point to continuing public controversies—including statements by then-Director of National Intelligence Tulsi Gabbard about misplaced 2020 election files—and warn that “subsequent reports of election impropriety continue to surface,” reinforcing their belief that citizen speech on election matters must remain protected.

Their brief argued that Colorado’s denial of Peters’ appeal bond violated four separate constitutional protections. 

Under the Eighth Amendment, they said, bail was transformed into a form of punishment rather than a safeguard—a direct violation of the Supreme Court’s holdings in Stack v. Boyle and United States v. Salerno. The amici noted that the sentencing judge described Peters as a “charlatan” whose words were “as dangerous as violence,” evidence, they said, that she was punished for her speech rather than her conduct. 

They also invoked the Ninth Amendment, asserting that the state’s action represented government overreach into unenumerated rights retained by the people, including the right to express dissenting political opinions without fear of retribution.

Citing the Fourteenth Amendment, the amici framed the denial of bail as an arbitrary deprivation of liberty that effectively nullified her right to a meaningful appeal. “If Ms. Peters serves her sentence before her appeal is decided,” they wrote, “the right to appeal ceases to exist in practice.” 

Finally, they claimed that jailing Peters violated the First Amendment by functioning as a form of prior restraint: removing her from public discourse and silencing a viewpoint on an issue of public concern. The brief warns that by doing so, the court not only censored Peters—but also deprived citizens of the ability to hear and debate her position.

Two doors for release

When the hearing turned to remedies, Case laid out two paths for how Peters could be released if the court grants her writ of habeas corpus.

The first, which he called “door number one,” would have the judge order Colorado to produce Peters to the U.S. Marshals and direct the Marshals to release her immediately under the same bond she already posted in state court. The second, “door number two,” would bring her before a federal bond hearing, requiring a new $25,000 bond and more jail time.

“We think door number one is the preferred method because it gets her out immediately,” Case said. He argued that the second option would “just harm the petitioner,” forcing her to spend another week or two in custody while raising additional money for bail.

Where the case now stands

Once the filings and arguments were complete, attention turned to the mechanics of decision-making and timing. Judge Varholak placed the case under advisement, saying it would proceed directly to a written order. He described the habeas petition as fully briefed and procedurally complex, with questions that must be settled before any ruling on free speech or bond rights. 

While refraining from signaling an outcome, he said he was mindful that the petition concerns an individual in custody and that the case will remain a priority until the court’s order is issued.