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2 Colorado county clerks sue secretary of state for election server access

Last year, the Colorado Secretary of State's Office approved emergency rules limiting who can access voting machine servers.

DENVER — A lawsuit questioning the integrity of Colorado's elections had its day in court on Friday.

Sort of.

The hearing was, actually, about Colorado Secretary of State Jena Griswold (D) trying to get the lawsuit tossed.

Two Republican County Clerks -- Elbert County Clerk Dallas Schroeder and Douglas County Clerk Merlin Klotz -- along with a few Republican County Commissioners from Park and Rio Blanco counties, want access to election servers.

They want to see if the election equipment software update, known as a "Trusted Build" deleted election data.

"What we're asking the court to do is allow us to get an image of the system as it exists today," said John Case, the attorney representing Schroeder, Klotz and the county commissioners.

Schroeder admitted in an affidavit last month that he made his own copies of his voting machine services before the Trusted Build.

"I made a forensic image of everything on the election server, and I saved the image to a secure external hard drive," Schroeder wrote.

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"He, personally, with (deputy clerk) Rhonda Braun took the hard drives out of the election voting system server, put it into a copying device that he had borrowed and that was a read-only device, to get the image off the hard drive, and then it writes that image onto an external hard drive, a portable hard drive that Mr. Schroeder had purchased. And he had imaged the two hard drives that were in the voting system server, and then he imaged the hard drives that were in the adjudication computer and in the two scanning computers," said Case.

Schroeder and Klotz now want a copy of the servers after the Trusted Build.

"Let's see if the update erased records, that's all we want to know," said Case. "The Secretary (of State) is preventing that audit from taking place. She won't allow the county clerks to hire their own experts to look at the system."

Last year, the Colorado Secretary of State's Office approved emergency rules limiting who can access voting machine servers. They have to pass a criminal background check and be an employee of the clerk's office, Secretary of State's Office, voting system provider or an election judge.

"This is a policy disagreement. Certain county officials disagree with what the state agency has done," said Emily Buckley, attorney for the Colorado Attorney General's Office who is defending the Secretary of State's Office.

Those emergency rules were in response to the actions by Republican Mesa County Clerk Tina Peters. She is accused of allowing a non-employee access to her county's election computers.

"What happened in Mesa is, the county clerk and recorder Tina Peters, hired a consultant to image the system before the Trusted Build was done and then image it again after the Trusted Build," said Case. "(Griswold) prosecuted the county clerk, had her removed for making this image, and now there's a criminal prosecution because, in order to get the image, (Peters) unfortunately introduced her consultant as an employee, which he was not. Mr. Schroeder did it the right way. He perfectly, lawfully imaged his system so that he would have an image of what was there before the Trusted Build."

RELATED: Douglas County Clerk denies election security breach, says he used 'wrong terminology'

Peters faces multiple felony charges over her actions in accessing her election equipment.

Denver District Judge David Goldberg said it would be more than a week before he decides if this case continues.

"Politics has no place in this courtroom and we will look at it from a legal standpoint," said Goldberg.

Outside of court, Schroeder declined to comment. In May, Schroeder verified his county's election equipment produced accurate election results. He conducted a hand recount of the 2020 Elbert County election results and found three discrepancies that he said were human error, not machine error. He said in a news release in May 2021 that two of the errors were election judge errors and one was a voter not making a clear identifying choice.

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