Federal magistrate hears arguments over whether to free former Mesa County Clerk Tina Peters while she appeals state conviction

Former Mesa County Clerk Tina Peters’ effort to get a federal court to free her on bond while she appeals her state conviction was met with apparent skepticism by a federal magistrate during a hearing Tuesday. 

Last October, a state judge sentenced Peters to nine years on charges stemming from her efforts to help a man gain unauthorized access to Mesa County’s Dominion voting machines in 2021. She’s currently incarcerated at La Vista Correctional Facility, a medium-security facility for women located in Pueblo. 

Peters has filed a federal habeas corpus petition arguing the state court is trying to keep her from speaking out on election security, in violation of her First Amendment rights, while her state appeal is considered.

“We have a person in prison because of a fear that she's a danger to society because of what she might say,” said Peters’ attorney, Peter Ticktin, during the hearing. Ticktin is a constitutional lawyer based in Florida who helped lobby for pardons for participants in the Jan. 6 attack, including Oath Keepers founder Stewart Rhodes.

At Tuesday’s hearing Chief Magistrate Judge Scott T. Varholak said he would only decide on First Amendment grounds, because other arguments her defense has raised, while relevant to challenging the underlying validity of her conviction, don’t necessarily apply to whether she should be released on bond.

He also noted the apparently unique logistical and jurisdictional challenges raised by Peters’ habeas effort. Varholak said that typically with a habeas case, a federal court is being asked to find that a criminal sentence is illegal or unconstitutional and to vacate it. 

“But that's not what you're asking me to do here. You are saying, ‘put her on bond,’ and I don't know that there's anything that authorizes that,” he said.

Varholak said he has not found a single case ever in the history of the United States where a federal court granted habeas on an appeal bond, which leaves him questioning how a potential release would even be managed.

“What if the petitioner violates that bond? Can the state court revoke the bond? Do I revoke the bond? What do we do in that situation?” he asked.

The state judge who oversaw Peters’ case rebuked her during sentencing for continuing to push false claims about rigged voting machines and a stolen election. 

Her attorneys argue those remarks show Judge Matthew Barrett denied her bail to silence her, violating her constitutionally protected right to free speech. 

“Every day that goes by is another day in hell for Tina Peters,” said Ticktin, asking for the magistrate’s decision to be expedited. “We have her in basically maximum security with murderers (and she) doesn't know each day if she's going to survive the next day.” 

Peters continues to argue she did nothing wrong when she helped an unauthorized person use someone else’s identity to access her office’s election equipment and attend a secure software update. And she remains a cause celeb for those on the right who believe election equipment makers conspired with Democrats to sway elections — claims that have never been upheld in any court.

Ticktin said Peters has never claimed to be a hero, but that half the country believes that she is.

“This is a lady who may have helped save America because of the acts that she did, which were in compliance with the laws of the country.”

President Donald Trump has taken an interest in the case. In May he directed the U.S. Department of Justice to help secure Peters’ release, referring to her as a “hostage” that was “being held in a Colorado prison by the Democrats, for political reasons.”

“FREE TINA PETERS, NOW!” Trump wrote to punctuate the message. 

Varholak said if Peters is indeed being held in violation of her constitutional right he intends to act swiftly and would make a recommendation to the federal judge that will ultimately decide the case.