From question to confrontation: Peters’ legal team forces Colorado courts to choose

By Jen Schumann | Rocky Mountain Voice

One day after the constitutional question facing Colorado courts came into focus, attorneys for former Mesa County Clerk Tina Peters moved to force an answer.

Late Tuesday, Peters’ legal team filed an urgent motion asking the Colorado Court of Appeals to determine whether it still has jurisdiction to proceed at all, given a presidential pardon and what her attorneys argue are unresolved violations of federal election law.

The filing marks a shift from explanation to escalation. Yesterday’s reporting centered on the unresolved authority question now hanging over the case. This motion is the defense’s attempt to compel the court to decide it. It follows a Dec. 8 federal court order that declined to resolve Peters’ constitutional claims, citing the need for Colorado courts to address them first.

Appellant’s urgent motion filed Dec. 23 asks whether Colorado courts retain jurisdiction after a federal pardon.

Why file now

Attorney Peter Ticktin, who represents Peters alongside longtime counsel John Case, said the defense could not afford to wait while Peters remains imprisoned.

“We need to get Tina Peters out of prison,” Ticktin said. “She’s been pardoned by the president of the United States, so she should be out of prison. If there’s any doubt or any question, that doubt should be resolved in favor of her release.”

The urgency, he said, is not rhetorical. With oral arguments on the appeal already scheduled, the defense argues that allowing the case to drift forward without resolving jurisdiction risks waiving the practical effect of the pardon altogether.

“They need to let us know what we’re doing,” Ticktin said, “whether we’re going forward with the appeal or not.”

The defense argues that federal election law, not just state statute, governs the conduct at issue in Peters’ case. In short, Peters’ attorneys argue that when federal election law applies, the state cannot prosecute actions required by that law. 

That argument—grounded in record-preservation requirements and the Supremacy Clause—forms the backbone of the motion now before the court.

Ticktin said the Supremacy Clause matters here because federal law does not operate alongside state law in federal elections.

“You couldn’t have equal partners here,” he said. “That’s why it’s a supremacy clause. Federal law has supremacy.”

Why this case is different

Ticktin said the legal conflict at the center of the filing is not a routine dispute between state and federal authority. In his view, the same conduct Colorado prosecuted as a state crime is treated as a federal offense under federal election law.

“It’s exactly the same law, unlike any other case that I’ve ever seen,” Ticktin said. “The federal law says that a violation of the state law is a violation of the federal law.”

The motion cites federal statutes governing federal elections that incorporate state election rules into a single legal framework. Under that structure, Peters’ attorneys argue, alleged violations of Colorado election law tied to a federal election are treated as offenses against the United States.

Federal statute excerpt cited in Peters’ appeal linking state election law violations to federal criminal law in federal elections.

In practical terms, Ticktin said, that created a situation where Peters had no lawful path that did not expose her to prosecution.

“She was damned if she did and damned if she didn’t,” he said. “If she didn’t preserve the records, she would have been in violation of federal law. If she followed federal law, she was prosecuted by the state.”

The filing argues Peters was required under federal law to preserve election records following the 2020 election and that a state-approved software update would permanently erase those records. 

In the motion, attorneys describe the update—known as a “Trusted Build”—as a process that, by design, deletes all existing software and digital election records before installing a new version.

The Secretary of State’s office refers to the process as a “Trusted Build,” the filing states. It should be called “THE WIPE,” because it erases all records of prior elections, including records that federal law requires clerks to preserve for 22 months after a federal election.

That factual sequence, the defense argues, placed Peters in an unavoidable conflict between state direction and federal obligation.

Defense motion excerpt referring to the “Trusted Build” as “THE WIPE.”

Preserved versus erased

The defense isn’t asking the appellate court to referee the record-erasure dispute here. They’re asking whether Colorado can keep her locked up at all, given their claim that she preserved records federal law required and the state is refusing to honor a presidential pardon connected to that conduct.

Ticktin alleged that state officials and a voting system vendor erased federally required election records during the Trusted Build process, while Peters was prosecuted for attempting to preserve them.

“They wiped 62 drives and then overwrote on those drives so that the data could never be found again,” Ticktin said. “They did this knowing that it was against the law, the federal law.”

The defense argues that contrast matters now because it explains why federal authority is implicated and why jurisdiction must be decided before the appeal continues. And while Peters remains imprisoned.

The Attorney General’s office has told her counsel the state will not recognize the presidential pardon and will continue to hold her.

The filing also documents that the presidential pardon was formally served at the La Vista Correctional Facility and that Peters’ release was requested and refused.

The chilling effect on other clerks

Ticktin said the prosecution sent a message that extended well beyond Mesa County.

“To pursue Tina Peters as an example to all of the other county clerks,” he said, “not just in Colorado, but in the country—do not dare preserve the evidence.”

In the defense’s view, the case established a boundary for local election officials: preserve records at your own risk. Ticktin said that message matters now because it explains why federal law and federal authority cannot be separated from the prosecution.

Similar concerns have surfaced elsewhere. RMV has reported on pressure placed on county clerks and associations to discourage independent scrutiny of election systems.

What Ticktin said Coloradans should understand

Asked what he wanted Coloradans to understand beyond the immediate filing, Ticktin placed the case within the broader debate over election integrity that has followed the 2020 election.

“So, as crazy as it may seem, the fact that the election was stolen in 2020 is not a big lie,” Ticktin said.

He immediately clarified that “stolen” was not the most precise term. “They didn’t steal the election,” he said. “They fixed the election. They made it a crooked election. They cooked the results of the election. But what they stole was America.”

Ticktin tied that claim to the destruction of election records and the prosecution of Peters for preserving them, arguing that evidence suppression—not just election outcomes—sits at the heart of the dispute.

Those broader election integrity issues are not before the Colorado Court of Appeals in this motion. Ticktin said they explain why the Peters case matters beyond one defendant and why, in his view, federal law must take precedence when election records are at stake.