The Colorado Secretary of State is asking the U.S. Attorney’s Office to investigate alleged voter intimidation surrounding residency-based challenges to voter registrations in the town of Pitkin, which previously led to prosecutions.  Affected voters spoke of feeling intimidated by the threat of being charged if they voted in Pitkin.

The District Attorney’s Office says, however, it was doing its job in responding to violations of Colorado’s voting regulations. It denies the substance of the SOS’ Tuesday declaratory order concerning four residents — possibly more — of the small Gunnison County town.

The DA prosecuted eight of 10 people who voted in recent Pitkin elections whose legal residency others in the town challenged. Prosecutors secured pleas in seven of the cases. In an eighth, Marie Rossmiller was convicted at a July bench trial. She has since filed a notice of appeal.

But on Tuesday, Deputy Secretary of State Suzanne Staiert found Rossmiller, along with Brian Holt, Kevin Brophy and Douglas Bower, in fact met the residency requirements.

In a final agency decision, Staiert determined the four consider their habitation to be fixed in Pitkin, where their vehicles are registered and which their driver’s licenses list as their hometown.

“Petitioners have stated facts to show the nature of the controversy or uncertainty facing them — that is, the fear of challenge and/or prosecution for registering to vote and voting using their Pitkin address,” the decision states, going on to find them properly registered to vote Nov. 6.

“In talking with some of the voters, we’ve been told they have told them they cannot vote in the November election,” Staiert said Thursday. “That’s a violation, to interfere with our state and federal elections.”

The 7th Judicial District Attorney Dan Hotsenpiller said that is not the case.

“I don’t believe that occurred. This office does not determine whether people are properly registered at any given time. We wouldn’t tell people and did not tell people if they were registered to vote in an election or not,” he said.

“This is about dual residency… The question is simply, do they get to vote in more than one place because they own property in one place?”

Rossmiller had voted in Arapahoe County in 2015, but, after filing for a senior tax exemption there in which she attested to Aurora being her primary residence through the 2017 calendar year, went on to vote in the Pitkin municipal election in 2016, according to trial records.

Her extensive ties to and community involvement in her birthplace of Pitkin notwithstanding, Rossmiller was a resident of Aurora at the time, Gunnison County Judge Ashley Burrgmeister found.

“Actions and undisputed facts do not demonstrate it was Ms. Ross’ intent to make Pitkin her primary home at the time she voted in the 2016 Pitkin election,” the judge said, finding Rossmiller guilty.

Rossmiller was sentenced to unsupervised probation. Those who pleaded out their cases received deferred judgments. Hotsenpiller said the goal behind the prosecutions was compliance with voter regulations.

Staiert’s Tuesday declaratory order not only covers the four named individuals, but also “any similarly situated” persons seeking to vote in the upcoming election.

“The four I named, they were the people who had made complaints. But we believe there are many more,” Staiert said.

Holt, who has a home in Colorado Springs, but who is a resident of Pitkin and does not vote in Colorado Springs (El Paso County), said people in the town were challenging others because they didn’t think people with more than one home could vote there.

“That’s not what the law says,” said Holt. His registration was challenged in 2016, but he hasn’t heard whether the DA’s Office will prosecute him.

He did watch what such prosecutions did to others, he said.

“Most couldn’t afford to fight it, so they pled out. I made up my mind that I had done everything right. I wasn’t going to allow it to continue,” Holt said.

“I contacted the Secretary of State and gave them packets and packets of information. They have since reviewed that and made their judgment.”

In her order, Staiert said when she visited Pitkin earlier this month, she heard “several troubling stories from voters about contact” with the DA’s office, including its investigators going onto properties to photograph homes, cars and inside windows; subpoenas to monitor their utility usage; townspeople being encouraged to keep tabs on one another, and of people who felt threatened in pretrial conferences being told tapes of the conferences had been “misplaced.”

Hotsenpiller said his office was investigating possible crimes and that gathering information was a basic function of the investigation. Additionally, he denied misplacing tapes.

He said pretrial conferences are not taped and his office informed Staiert they were not custodians of any such recordings, on tape or otherwise. “We never indicated they were misplaced, because they never existed,” Hotsenpiller said.

Staiert also wrote in her order: “Finally, (there were) people who were told by your office they could not exercise their fundamental right to vote in upcoming elections.”

She issued her order to protect voters’ rights.

“…We have a November election coming up and it’s interfering with their fundamental right to vote,” Staiert said Thursday, of the affected parties in the case.

“They don’t have anywhere else to register. They believe Pitkin is their home. By initiating this action, they’ve stripped them of those rights.”

Hotsenpiller rejected that.

“We filed this because the facts, the evidence, showed us that in fact these individuals violated Colorado law by voting in the wrong precinct,” he said.

Seven of the eight acknowledged doing so in plea agreements; Rossmiller was convicted after a fair trial, and all litigation afforded ample opportunity to test prosecutors’ case, Hotsenpiller said.

“A criminal prosecution does not alter the outcome of an election. A criminal prosecution is brought to ensure people comply with the rules regarding voting that have been passed and set forth by the Legislature,” he said.

The SOS order won’t affect the Rossmiller verdict specifically.

“We believe the declaratory order will protect them in the November election, but it will not protect them from prosecution in the past,” she said.

In July, prior to trial, Staiert said she discussed “politically motivated” voter challenges with the Assistant District Attorney and told her Rossmiller was indeed a properly registered voter.

Hotsenpiller said he doesn’t know what motivated the SOS to intervene on behalf of the four people; he noted a staffer had even been permitted to testify at the Rossmiller trial, yet she still was convicted.

Juliet Serrato, Pitkin’s volunteer commissioner who takes care of the town hall, said animus over short-term rentals dating as far back as 2014, which led to different town board members being elected, fueled the voter challenges, which further were allegedly inconsistent in who they targeted.

“It’s pettiness and jealousy… Watching people trampling other people’s rights is bothering me. This whole thing has been so ugly, and such a mess,” Serrato said.

Staiert said she issued her Tuesday order to try to protect voters from future prosecution and included all similarly situated electors because the DA’s Office would not release “a single record” related to prior challenges and investigations.

“They refused to give me a single document,” she said Thursday. But such documents could be discoverable if the USAO takes action or if a federal civil case is brought, she said.

“We are not required to by law,” Hotsenpiller said, of the SOS request. “We are profoundly concerned that these records will be misused. She has assumed and concluded that this office has acted improperly, that we are, quote ‘targeting’ voters, so until the law requires me to release information to her, or a court orders me to, I am not.”

Staiert repeated the substance of her order in a Tuesday letter to the U.S. Attorney’s Office, which requests a formal federal investigation.

Hotsenpiller reiterated the cases were filed because there was evidence to support them.

“This office will not be intimidated from doing its statutorily required job of investigating voting irregularities, voting law violations and election law violations in the 7th Judicial District, even if we are threatened with federal investigations,” he said.

“What concerns me is apparently, investigating and prosecuting people who are guilty of violating our election laws is considered to be voter intimidation by our Secretary of State.”

If investigating is intimidation, how then can the laws be enforced, Hotsenpiller questioned.

The intimidation is not coming from the SOS, Holt said.

“Pitkin is a small town. There were 61 people voting in the 2018 (municipal) election. From the 2016 election and challenges, they eliminated via plea bargain 11 people. Eleven people voting in an election where only 61 people voted could be a huge difference and it was,” he said.

“We’re still working with the Secretary of State to get something for the other people that were challenged and pled, the ruling that they can vote, if they so choose, in Pitkin and they meet the qualifications set forth by the Secretary of State.”

Katharhynn Heidelberg is an award-winning journalist and the senior writer for the Montrose Daily Press. Follow her on Twitter @kathMDP.

Montrose Daily Press | September 28, 2018
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