In a move Secretary of State Jena Griswold called a “victory for Colorado voters,” a Denver County judge this week dismissed a case filed by a group of Republican candidates who sought discretionary recounts in the June 28 primaries that alleged El Paso County was not conducting the recount “in a fair, impartial and uniform manner.”

The group is now appealing the decision with the Colorado Supreme Court, court filings show.

The GOP candidates filed a lawsuit in Denver District Court on Aug. 1 and amended it Aug. 5, specifically accusing El Paso County of using “improperly tested and unreliable electronic voting systems” to conduct the recount, completed Aug. 3.

Petitioners initially included failed secretary of state candidate Tina Peters and El Paso County sheriff contender Todd Watkins before they withdrew from the case. Griswold, a Democrat, and El Paso County Clerk and Recorder Chuck Broerman, a Republican, were named as defendants.

Tina Peters, GOP candidates sue to stop recount, alleging El Paso County uses ‘unreliable’ voting machines

The candidates requested Denver District Court Judge Alex C. Myers stop the recount and compel Griswold’s office to conduct it instead. 

In the appeal petitioners filed Wednesday with the state Supreme Court, the candidates asked the court to declare the recount results void and reiterated their request for the Secretary of State’s Office to conduct the recount, paid for by the state.

In a written order issued Monday, Myers said he dismissed the claims because there is no recount to stop. When the petitioners filed their amended lawsuit Aug. 5, the recounts had already been completed and their final results certified in El Paso County and by the Secretary of State’s Office on Aug. 3 and Aug. 4, respectively. 

The “disputes involving recount procedures became moot because … primary election results at this point are final and conclusive,” Myers wrote.

The primary election outcomes remained the same after the recounts. All petitioners – El Paso County coroner candidate Dr. Rae Ann Weber, county clerk and recorder candidate Peter Lupia, county commission candidates Lindsay Moore and David Winney, House District 18 candidate Summer Groubert and Senate District 9 candidate Lynda Zamora Wilson – lost their primary races by double-digit margins, certified results show.

Broerman said Thursday he was “very pleased” with Myers’ decision to dismiss the case.

“Here in El Paso County, we have one of the best election divisions in the state,” he said. “We work hard to deliver the best possible election services to our citizens. We run elections with the utmost integrity and to the letter of the law.”

Tina Peters gains single vote in recount, El Paso County outcomes remain unchanged

In a statement emailed Thursday, Griswold said, “Again and again, judges have dismissed these meritless lawsuits based on election conspiracies. Those who believe in fact and democracy will continue to prevail.”

Neither Weber, Lupia, Moore, Winney, Groubert nor Zamora Wilson responded to The Gazette’s requests for comment.

In court documents, the candidates argued their lawsuit was filed before the recount was completed or the results were certified. They accused Broerman’s and Griswold’s offices of “pushing forward” with the recount instead of halting it to address their concerns in court. 

Myers wrote Monday that Broerman’s and Griswold’s actions were “not surprising … given that the recount was not requested until the end of July and little time remained to complete the recount within the statutory deadline” of Aug. 4. 

Myers accused the petitioners of “dragging their feet” when they did not seek immediate relief on their original and amended petitions. The candidates “bear the burden in this case,” he said.

“It is simply unreasonable and illogical to expect under these circumstances that respondents (Broerman and Griswold) would take the reins and rush into court on an emergency basis …,” Myers wrote.

In their lawsuit, the group claimed a canvass board failed to follow statutory requirements to compare, during an accuracy test, the manual count of ballots with the machine count. Plaintiffs argued election officials were supposed to “compare the manual count of those ballots with the results of machine count that was tabulated by each of the chosen voting devices in the primary election.”

They alleged that didn’t happen.

The group also claimed election officials used “improperly tested and unreliable electronic voting systems,” making the recount “unfair, partial and not in a uniform manner.”

The candidates cited the work of a “computer science expert” who “identified catastrophic failures in the Dominion electronic voting systems used in 16 states, including Colorado” as evidence.

Broerman previously told The Gazette the lawsuit was “categorically false in every way imaginable.” 

The Secretary of State’s Office sets the criteria for the tests completed on the ballot tabulating machines ahead of an election and recounts, and Broerman’s office “follows that (criteria) to the letter,” he has said. 

The Secretary of State’s Office previously told The Gazette the recounts were conducted according to state law.

Some of the group’s members also filed a lawsuit in El Paso County on July 29, asking the district court there to allow the candidates who failed to produce the cash for the recounts to pay an “adjusted amount,” alleging the estimated cost of the recounts included “unreasonable, arbitrary and capricious” charges.

Broerman previously told The Gazette the charges were “usual and customary.” They reflect the work his office did to scan about 153,000 ballots, he has said.

The lawsuit in El Paso County is continuing.