DENVER – A Colorado appeals court ruled Thursday that a former county clerk convicted in a scheme that sought to prove fraud in the 2020 presidential election should be resentenced because a judge wrongly punished her for statements protected as free speech.
Tina Peters is serving a nine-year prison term after being convicted of state crimes for sneaking in an outside computer expert to make a copy of her county's election computer system during a software update in 2021. A photo and video of confidential voting system passwords were later posted on social media and a conservative website.
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Calls for Peters’ release have become a cause celebre in the election conspiracy movement. President Donald Trump has sought unsuccessfully to pardon Peters and pressured Colorado to set her free.
Judges on the Colorado Court of Appeals upheld her conviction in a 74-page ruling that rejected the notion that Trump has authority to pardon her state crimes. But they said a lower court judge should not have considered Peters’ continued promotion of election fraud conspiracies when he sentenced her in 2024.
One of Tina Peters’ lawyers, John Case, said the court’s ruling affirmed the importance of free speech.
“Tina Peters was punished for words that she used to criticize our insecure and illegal voting system,” Case said. “The decision affirms that people are free to speak what they believe in Colorado as well as the rest of the United States of America.”
Case said he would likely ask at resentencing for Peters to receive the approximately 540 days she’s served already. That would allow her to be freed.
Democratic Colorado Gov. Jared Polis, who has been considering granting clemency to Peters, praised the court’s decision for rejecting Trump’s pardon but upholding her free speech rights.
“This case has been very challenging and a true test of our resolve as a state to have a fair judicial system, not just for people we agree with but a fair system for Coloradans that we vehemently disagree with,” Polis said in statement.
Peters was the former clerk in Mesa County, in the far western part of Colorado, and convicted by jurors in the Republican stronghold that has supported Trump.
She was unapologetic when she was sentenced by Judge Matthew Barrett and insisted that she tried to unearth what she believed was fraud for the greater good. He ripped into her, calling her a “charlatan” who had used her position to “peddle snake oil.”
The appeals court found that Barrett violated her rights to free speech by punishing Peters for persistently alleging fraud in the 2020 election. They noted that because Peters is no longer serving as an election clerk, she can no longer engage in the conduct that led to her conviction.
"The trial court obviously erred by imposing sentence at least partially based on Peters’ protected speech,” Judge Ted Tow wrote in Thursday's ruling.
The court sent Peters’ case back to a lower court for a judge to issue a new sentence.
Trump has threatened to take “harsh measures” against Colorado unless the state releases Peters. In February, Trump said Colorado was “suffering a big price” for refusing to release her.
Colorado Attorney General Phil Weiser, a Democrat who is running for governor, has accused the Trump administration of waging a revenge campaign by choking off funds and ending federal programs over the state’s refusal to free Peters.
Weiser said in response to the ruling that the original sentence had been “fair and appropriate.”
“Whatever happens with her sentence, Tina Peters will always be a convicted felon who violated her duty as Mesa County clerk, put other lives at risk, and threatened our democracy. Nothing will remove that stain,” Weiser said in a statement.
The Justice Department inserted itself into Peters’ bid to be released while her state appeal was considered. The federal Bureau of Prisons also tried to get Peters moved to a federal prison. After both efforts failed, Trump in December announced a pardon for Peters.
However, the appeals court judges said they could find no prior example of a president pardoning someone for a state crime. And they rejected her attorney’s claims that Peters actions had been carried out while “defending a federal interest.”
“We have found no instance where the presidential pardon power has been stretched in such a way as to invade an individual state’s sovereignty,” they said, adding that the President’s pardon has “no impact” on the state’s case against Peters.
The Associated Press left messages with the White House for comment.
She was convicted of three counts of attempting to influence a public servant and one count each of conspiracy to commit criminal impersonation, first-degree official misconduct, violation of duty and failure to comply with the requirements of the secretary of state.
Peters’ lawyers didn’t deny that she used the security badge of a local man she pretended to hire to allow the an associate of MyPillow CEO Mike Lindell to make a copy of the Dominion Voting Systems election computer server during an annual software update in 2021.
But they said she only wanted to preserve election data and find out whether any outside actor had accessed the system while ballots were being counted. They said she didn’t want the information made public.