DENVER – Colorado Secretary of State Jena Griswold filed a lawsuit Thursday against Elbert County Clerk and Recorder Dallas Schroeder seeking more information about the alleged illegal copying of the county’s voting system hard drives and who is in possession of the copies after those questions went unanswered in his responses to previous orders.
Griswold’s office filed the lawsuit after Schroeder failed to fully answer questions posed in orders issued on Jan. 19 and Jan. 24 about the hard drive images copies, which came to light in an affidavit Schroeder signed on Jan. 7 as part of a lawsuit, which claimed the election software used by Colorado counties in 2020 was not properly certified.
The lawsuit filed Thursday compels Schroeder to comply with the previous orders and answer questions about the locations of the hard drive copies and who has access to them.
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.”
Another order issued by Griswold said Schroeder had to provide more information about those people, information on how he knows the images haven’t been accessed by or given to anyone else, and what the chain of custody for the copies was.
According to the lawsuit filed Thursday in Elbert County District Court, 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.
“Critical information regarding the unauthorized imaging of Elbert County’s voting system hard drives has not been disclosed by Clerk Schroeder and the copies of the hard drives still are in the hands of unauthorized people,” Griswold said in a statement Thursday. “That is why I am moving forward with this legal action.”
The responses Schroeder has provided so far, according to the suit and attached exhibits that include responses from Case and Schroeder, do not include answers about where the hard drive image copies are located.
The lawsuit filed by Griswold also says that the images might potentially contain unredacted scans of voted ballots.
“It appears likely, based on the description of the method by [which] the images were made, that the copies of voting system hard drives also contain scans of voted ballots,” the suit says, which would be a violation of Colorado statute and potentially a violation of citizens’ constitutional rights.
The suit says responses from Schroeder and Case were “very limited,” “incomplete,” or “insufficient.”
In a Feb. 3 response, Case included “proposed stipulations” that the Secretary of State’s Office would be able to come inspect copies of the copies of the hard drives and other voting system components. The Secretary of State’s Office rejected those offers, according to a Feb. 7 letter, and said other assertions made in the Feb. 3 response were “incorrect.”
The Secretary of State’s Office also again asked for the name of the private attorney to whom Schroeder said he provided a copy of the hard drive. In a Feb. 10 response, Case flatly said Schroeder would not provide the attorney’s name or the location of either external hard drive used to copy the voting system hard drives.
One of the reasons he cited was “because of the danger of seizure of equipment such as occurred in Mesa County.” The Secretary of State’s Office removed Mesa County’s equipment, and the county had to replace it, after it was found to have been compromised by the office of Mesa County Clerk and Recorder Tina Peters.
Case also contends that the hard drive images are “evidence that must be preserved” and that “lawyers can be trusted to preserve evidence without undergoing a background check” and hoped Griswold’s office would comply with the “proposed stipulations” and not move ahead to litigation.
But that will not be the case. The Secretary of State’s Office said the lawsuit filed Thursday “is necessary to ensure compliance with state law, election security rules, and the continued security of the county’s voting system.”
“As noted in the lawsuit, Clerk Schroeder’s failure to fully comply with the pending Election Orders has created a risk that the copies of Elbert County’s voting system hard drives may be exploited to undermine confidence in Colorado’s secure elections,” the office said in a news release.