Fourth Judicial District Attorney Michael Allen said this week he will not pursue criminal charges against the Colorado secretary of state or the El Paso County clerk and recorder following allegations they interfered with a recount of the June 28 primary election.

Allen said in a Dec. 5 letter of review released to the media Tuesday that after his office completed a “thorough investigation” of the complaints lodged against Secretary of State Jena Griswold, El Paso County Clerk and Recorder Chuck Broerman and his staff “there are no reasonable grounds to pursue criminal charges based on the allegations” raised, which “are not supported by evidence.”

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Hugh Goldman submitted an affidavit to Allen’s office on Oct. 4 alleging Griswold interfered with the recount in El Paso County by “rewriting” state statutes governing recounts “into rules that materially and substantially misrepresent the statute, then officially distributed said rules to the El Paso County Clerk and Recorder’s Office.”

He also claimed Broerman and his staff broke the law by following election rules issued by Griswold instead of state law. 

2022DA200 Goldman Notorized Affidavit and Supporting Docs

Broerman and a spokeswoman for the secretary of state denied the claims.

In the affidavit, Goldman referenced Colorado regulation requiring election officials to randomly test voting devices used in the races subject to the recount.

Officials “shall use the voting devices it has selected to conduct a comparison of the machine count of the ballots counted on each such voting device … to the corresponding manual count of the voter-verified paper records,” the statute says.

Broerman said Wednesday Goldman lodged his complaint based on a “flawed interpretation” of the law. 

The statute is outdated and doesn’t apply to El Paso County, or most Colorado counties, Broerman said, because they have not used voting devices – such as machines with levers or touch-screens residents use to cast their votes – since 2017.

El Paso County uses paper ballots, which are then counted with automatic tabulation devices, he said.

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“I think (Goldman) saw a reference in a state statute for a process that has not existed in our county for a number of years and thought that it was a requirement for our tabulators,” Broerman said.

Broerman said Goldman’s allegations were similar to claims leveled at him and Griswold in two lawsuits filed in El Paso and Denver district courts this summer by a group of Republican candidates who unsuccessfully sought hand counts in the recount process after losing their primary races.

Judges in both district courts dismissed those cases.

Many of those candidates, including embattled Mesa County Clerk Tina Peters, had criticized Colorado election processes as unreliable and vocally supported former President Donald Trump’s claims the 2020 election was fraudulent.

Election officials in Colorado and elsewhere have repeatedly refuted those claims.

In his Dec. 5 letter, Allen said the same statute Goldman referenced allows the secretary of state to announce and provide county clerks with “necessary rules to conduct the recount in a fair, impartial and uniform manner” and that those rules “must take into account the type of voting system and equipment used by the county in which the recount is to be conducted.”

Broerman said before the recounts could get underway his office conducted a public logic and accuracy test, required by state election rules, on all its ballot counting equipment to ensure each machine processed and tabulated ballots correctly.

DAO Press Release 2022-029

The test gave voting machines a batch of 4,200 test ballots, of which officials knew the outcome, and passed with 100% accuracy, Broerman’s office reported during the recount.

Election rules also require recounts be conducted using the same form of tabulation used to count the original votes – in this case, by machine.

The rules Griswold provided county clerks for the recount complied with Colorado law, Allen wrote. 

“Issuance of those lawfully promulgated rules does not constitute interference with the recount process,” he said.

The Gazette was unable to reach Goldman Wednesday via a phone number believed to be his, which was out of service.

Secretary of State’s Office spokeswoman Annie Orloff said by email this week the accusations were “meritless.”

“The Secretary of State’s Office will always fight to protect every eligible voter’s right to choose their elected officials,” she said.

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Allen also wrote that Broerman’s office was required to follow state statute and the election rules Griswold issued for the recount.

Broerman said Wednesday his office did that, “to the letter of the law.”

Even if the secretary of state’s rules were unlawful the clerk and recorder “would have a complete defense to any criminal liability” in following them because they would have been issued by the official authorized to “administer, enforce or interpret a statute, ordinance, regulation, order or law,” Allen said.

Broerman said Allen’s decision not to pursue charges in this investigation validates the work his staff does to conduct local elections.

“Once again, this should give confidence to our voters that we adjudicate our elections per state law, and we do it properly,” he said.