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Colorado Democrats look to crack down on insider election threats

A ballot drop box outside the Mesa County clerk and recorder's offices in Grand Junction, Colo., on Aug. 26, 2021.
Hart Van Denburg
CPR News
A ballot drop box outside the Mesa County clerk and recorder's offices in Grand Junction, Colo., on Aug. 26, 2021.

Updated March 25, 2022 at 4:14 PM ET

Update on March 25: The controversial provision that would have barred those who oversee elections from knowingly or recklessly making false statements about the process has been dropped from the legislation.

Eight months after a Colorado clerk allegedly compromised her county's election machines while searching for proof of fraud in the 2020 election, Democratic lawmakers in the state want to make it illegal for those who run elections to do much of what she's accused of.

A new bill in Colorado would add more training requirements for election staff and officials, bar counties from copying voting machine hard drives without state permission, mandate full-time video monitoring of equipment and increase penalties for security breaches.

The legislation would also ban anyone overseeing elections from knowingly or recklessly making false statements about the process.

The attempt to prevent insider threats and misinformation from further eroding public trust in elections has led to concerns about potential First Amendment violations and some to question the motives behind the entire effort.

"I don't think it's too much to ask to say, 'If you're running our elections you can't lie about our elections,' " said Democratic state Senate President Steve Fenberg, who is the main sponsor of the bill.

While the measure had been in the works for a while, it was officially introduced earlier this month, just two days after Mesa County Clerk Tina Peters was charged with breaching the security of her county's voting equipment.

In the words of the grand jury's indictment, Peters and her deputy Belinda Knisley allegedly "devised and executed a deceptive scheme" to give an unauthorized person access to the county's voting machine hard drives and to sit in on a software update. Photos of passwords and copies of data were later leaked online by election conspiracy theorists.

Peters has called the charges "politically-motivated accusations" by Democrats.

Clerks back increased training, security requirements

The sweeping legislation would require counties to store all voting equipment in a secure area only accessible by key card and under constant, year-round video surveillance. It also would ban anyone, even election office employees, from going into that area alone. Currently, cameras only have to be on for a set number of days around each election, and only on certain pieces of election equipment.

The proposal also aims to speed up the legal process when a potential security breach occurs. It would make it a felony to tamper with voting equipment or publish information like passwords, and would add whistleblower protections for employees who reveal misbehavior.

"It's important for Coloradans to hear ... that we won't stand for this kind of thing. Insider threats have no place in our elections," said Matt Crane, the head of the Colorado County Clerks Association and a former Republican county clerk.

Clerks from both parties overwhelmingly support the legislation, according to Crane. He noted it would expand training and certification requirements for election workers, clerks and certain employees within the secretary of state's office.

"I think what we saw in Mesa County was a low-information clerk, which made her susceptible to grifters and bad actors," said Crane. Peters did not have experience in elections administration before being elected clerk in 2018.

But despite broad support in the election world, it passed its first legislative hearing last week on a party-line vote.

"Seeing a bill like this being run immediately, in response to what happened in Mesa County, is troubling," said Republican Rep. Matt Soper, who represents most of the county in the House. "Quite frankly [it] angers me because I don't think we ought to be writing legislation for just one particular element that has occurred out in society, knowing that the law that's currently on the books has been playing out."

Soper said he's open to voting for the bill, if it's amended to address some of his concerns. But he also noted that it's hard for Republicans to embrace a proposal when Democratic Secretary of State Jena Griswold is championing it.

"She's made the office incredibly partisan, and it didn't have to be that way," he said. "It makes the politics around this very difficult to vote for, even if reading through the bill there's a lot of things that Republicans and Democrats could agree with here."

Griswold is running for reelection and her fundraising emails have routinely highlighted her investigation of Peters, who also recently entered the race. She has also developed a national profile as a critic of Republican-led voting policies.

The Colorado GOP is already organizing against the legislation. At the same time the party leaders have asked Peters to suspend her campaign for secretary of state in the wake of the criminal charges.

Misinformation ban raises constitutional concerns

What's shaping up to be the most controversial element of the bill is a section that would ban those who oversee elections from knowingly or recklessly disseminating misinformation or disinformation about elections.

Peters has long maintained she was well within her authority to investigate what she came to believe was voter fraud in the 2020 election — doubts which she said started with simply trying to answer questions many of her constituents had.

"They just kept bringing it to me and bringing it to me," Peters told CPR last November. "I get emails and people wanting to meet with me. I tried to defend that we were, we had pure and fair elections."

Peters said she could no longer defend the system. "I can't unsee what I've seen and it's disturbing to me."

Peters has also participated in events and broadcasts hosted by prominent purveyors of false claims about the 2020 election, including Steve Bannon and Mike Lindell.

But for one prominent First Amendment attorney, this aspect of the bill is problematic, no matter what the motives of its backers are.

Steve Zansberg heads the Colorado Freedom of Information Coalition. He also provides legal representation to members of the Colorado Broadcasters Association, including CPR. He said he wonders who would get to decide whether a statement was knowingly or recklessly false.

"It raises serious constitutional questions because of the ambiguity in how it could be enforced," said Zansberg. He added that it's "incredibly disconcerting" for the state to potentially use the things someone says as a condition and qualification for overseeing elections.

He said if lawmakers do pass this provision, it should require a high standard of evidence and a clear process for determining whether someone actually broke the law.

For supporters, though, the idea is just common sense. Sen. Fenberg told a Senate committee that he is fully aware that false information about election fraud will continue to spread on social media, talk radio and other platforms.

He said his bill isn't trying to curtail that kind of speech.

"That's why, in a lot of ways, our democracy is so great and frustrating and messy. But for people who administer the elections, there should be some basic standards," he said.

As effects of 2020 linger, Democrats move to pass new laws

This measure is part of a package of voting bills Democrats have introduced this session that they say are needed to respond to baseless claims around the 2020 election. Those include legislation to ban the open carry of firearms within 100 feet of voting locations, and a bill that would increase penalties for threatening and harassing election workers.

But Secretary Griswold said Colorado is the first state she knows of to propose this action on insider threats. She said she recently briefed other secretaries of state on the bill and hopes states across the country follow Colorado's lead.

"I do believe that we'll see further insider attacks, as a way to destabilize American elections and push disinformation. So every state should be getting ready for this evolving threat, " she said.

County clerks say public scrutiny, and in some cases outright distrust, has increased their workload and the urgency they feel to make sure the public has a better understanding of how elections work.

Fremont County Clerk Justin Grantham, a Republican, said fighting disinformation in his conservative part of the state is more important than ever right now.

"It's like, come to the trusted source, come and talk to the person who is actually doing the job and not someone who wants to do the research on the internet," said Grantham. "And if you're not part of the process, you tend not to see the checks and balances you have in place in elections."

Copyright 2022 CPR News

Bente Birkeland
Bente Birkeland has been reporting on state legislative issues for KUNC and Rocky Mountain Community Radio since 2006. Originally, from Minnesota, Bente likes to hike and ski in her spare time. She keeps track of state politics throughout the year but is especially busy during the annual legislative session from January through early May.