Judge orders Elbert County clerk to turn over election system hard drive images

Clerk Dallas Schroeder will also have to answer questions, show chain of custody for images
dallas schroeder elbert county clerk and recorder hard drive images
Posted at 6:41 PM, May 02, 2022
and last updated 2022-05-03 10:26:41-04

DENVER – An Elbert County District Court judge on Friday ordered Elbert County Clerk and Recorder Dallas Schroeder to turn over all copies of election hard drive images he made by 5 p.m. Wednesday and overruled objections his attorneys made in court last week about why he should not be required to.

Additionally, Schroeder and his attorneys will have to file answers to questions posed to him in election orders from Colorado Secretary of State Jena Griswold about the copies of the county’s election system hard drives made last year and their chain of custody, among other things, in written responses by 5 p.m. Tuesday, ordered District Judge Gary M. Kramer.

Judge Kramer's order was obtained by Denver7 on Monday. According to it, Schroeder will also have to give Griswold a complete chain-of-custody log for each of the hard drives or images he made of them.

The judge’s orders were issued hours after he heard testimony from both parties last Friday about Schroeder’s ongoing refusal to comply with Griswold’s election orders issued earlier this year, and after the public release of video of Schroeder making the copies, which was first obtained and reported last week by Reuters.

Judge orders Elbert County clerk to turn over election system hard drive images

Griswold sued Schroeder in February seeking more information about the alleged illegal copying of the hard drives and who is in possession of the copies after Schroeder failed to answer questions posed in orders issued on Jan. 19 and Jan. 24.

The details that Schroeder had made images of the hard drives came to light in an affidavit Schroeder signed on Jan. 7 as part of a lawsuit that claimed the election software used by Colorado counties in 2020 was not properly certified.

In the affidavit from January, Schroeder said he “made a forensic image of everything on the election server” ahead of a “trusted build” of the county’s election system ahead of the 2021 election.

Schroeder’s attorney, John Case, sent responses to the questions from the secretary of state’s office sent to Schroeder, which said Schroeder copied images of the election server hard drives, two image cast central computers and the adjudication computer to an external hard drive – using a high-speed hard drive imaging machine.

Two others not employed by the clerk and recorder’s office gave Schroeder instructions over the phone on how to make the hard drive images. They were identified in the filling as Shawn Smith and Mark Cook, though no other information about their connection to Schroeder was released.

The affidavit says the images were kept on an external hard drive “under lock and key in the election office.” But on Sept. 2, Schroeder made another copy of the images, according to the filing, and delivered it to the unidentified “private attorney.”

According to the lawsuit filed in February, Schroeder and Case failed to answer many of those questions in subsequent responses and are willfully withholding the name of the “private attorney” cited in the affidavit.

In Friday’s order, Judge Kramer wrote that the two election orders Griswold issued were within her statutory rights as secretary of state and that Schroeder must comply with both.

“The fact that the Clerk and Recorder does not trust the Secretary of State to perform her official duties does not excuse his duty to comply with her orders,” Judge Kramer wrote.

At question in this part of Kramer’s ruling was primarily whether Griswold has the authority to make the orders which she has – not most of Schroeder’s counterclaims against her. Their attorneys have each testified during hearings that neither trust one another, and Schroeder’s attorneys have tied that distrust back to what happened in Mesa County last year when Clerk and Recorder Tina Peters allegedly helped breach the county’s election system and hard drive images were leaked on far-right websites.

Judge Kramer wrote in Friday’s order that by law, Schroeder “unquestionably” must comply with Griswold’s orders.

“Because the Colorado Election Code places the Secretary of State in a position superior to the county Clerk and Recorder, Griswold’s right to the information she seeks is superior to Schroeder’s right to withhold the information from her,” Kramer wrote in the order.

The judge also overruled most of the objections and counterclaims Schroeder and his attorney have made in court and in filings.

Kramer shot down the argument that the hard drive images are not components of the voting system, saying both that Schroeder’s argument “misperceives the law and his own pleading” and that his allegations “undermine his argument.”

“The Court concludes that Schroeder’s copying of the Elbert County election management server, two scanning computers, and the adjudication computer falls within the broad authority granted to Griswold to inspect Schroeder’s practices in the conduct of elections and the registration of electors,” Kramer wrote.

He also wrote that even if Schroeder acted lawfully in making and disseminating the images, Griswold still has the authority to issue orders and require Schroeder to comply with them.

Judge Kramer also denied the notion that handing the copies of the hard drives over to Griswold would keep him from doing his duty to preserve election records, as Griswold is the chief election officer and that records “may be delivered to another officer of election,” as federal statute states.

Schroeder and his attorneys had also argued that the court should not enter judgment in the case because Fox News had subpoenaed one of the hard drive images he made. But Judge Kramer said Schroeder had not demonstrated his relationship to the news organization and that Fox News is not a party and had not moved to intervene, and thus had no standing to object.

“And even if Fox News were a party, Schroeder has not demonstrated that he has been granted authority by Fox News to represent it in this Court,” Kramer wrote in Friday’s order.

Finally, the judge wrote that Schroeder had shown no evidence that Griswold would not preserve and protect the images despite their distrust of one another to uphold their respective official duties.

“Accordingly, because Schroeder has presented no evidence that Griswold cannot and will not perform her obligations to preserve and protect the hard drives and the information in them, the Court cannot and will not presume that she will not do so,” Kramer wrote. “Griswold has the obligation and the authority to determine how to preserve and protect the hard drives at issue.”

Griswold said in an interview Monday she maintains that private, unidentified attorneys should not have images of the election hard drives. She maintains that like Peters, Schroeder breached election rules and continues to fail to follow orders.

Peters and her ilk have become among the national faces of the push by conspiracy theorists, including Mike Lindell, to claim Dominion Voting Systems machines used in nearly all of Colorado’s counties are being used to commit voter fraud at the hands of Democrats – none of which have been proven. Those claims and subsequent actions on behalf of those ideas have led to Peters being removed as the designated election official in Mesa County and a grand jury indictment for her and her deputy clerk.

Some Republicans have used these conspiracy theories, and Griswold’s subsequent actions after the alleged breaches, to claim she is politicizing the office as the November election approaches. Most of the conspiracies began after Donald Trump lost the 2020 election.

“It started here in Colorado,” Griswold said Monday, “but across the nation, we're seeing election officials embrace conspiracies and become themselves a security risk.”