Identity of attorney should be public, secretary of state argues in Elbert County election security case

The Colorado secretary of state is asking a judge to allow the name of a private attorney who was in possession of an Elbert County election system hard drive copy to be made public.

The name of the private attorney was among the information Secretary Jena Griswold was seeking when she sued Elbert County Clerk Dallas Schroeder after he, with the help of election conspiracists, made full copies, or “forensic images,” of the election system hard drives in his own office.

One of the copied hard drives was stored at Schroeder’s office in Kiowa, and the other was stored in an undisclosed location with a “private attorney.” Schroeder, saying he wanted to ensure preservation of 2020 election records and avoid subjecting the attorney to harassment, had refused to name the attorney. But Elbert County District Court Judge Gary Kramer recently ordered Schroeder to supply to Griswold material, including the private attorney’s identity, that she sought as part of an election security investigation. 

Kramer ruled that this material should be “suppressed.” But on Monday Griswold asked the judge to make much of it public, including the attorney’s name.

“The public has a right to know who is participating in the campaign to push discredited conspiracy theories aimed at destabilizing Colorado’s elections,” Griswold wrote through lawyers with the Colorado attorney general’s office.

She notes in her motion seeking to unseal the information that Schroeder has suggested the private attorney “could be subject to harassment” if they were to be identified publicly.

“Mr. Schroeder’s conclusory concern does not outweigh the public’s right to know who was working with Mr. Schroeder and keeping potentially unauthorized mirror images of secure voting system hard drives,” Griswold wrote.

The motion says “There is a policy and presumption that court records are open to the public,” and it quotes the Colorado Rules of Civil Procedure as authorizing a district court to limit access to files only “upon a finding that the harm to the privacy of a person in interest outweighs the public interest.”

Other suppressed material Schroeder, a Republican, turned over to Griswold, a Democrat, includes a chain-of-custody log for each hard drive copy, answers to questions related to Schroeder’s hard drive-copying activities, communication between Schroeder and two people who helped him make the hard drive copies, and the hard drive copies themselves.

The chain-of-custody logs and answers to questions are among the items Griswold wants unsealed, but not the hard drive copies.

The two people who helped Schroder make the copies, according to his own account, were Mark Cook and Shawn Smith. Smith participated in the Jan. 6 insurrection and is head of the Mike Lindell-funded “election integrity” group Cause of America.

Schroeder said in court documents that before a state-led election system software update in August 2021 he made the election system copies on an external hard drive to preserve records of the 2020 election, which he claimed the update, known as a “trusted build,” erased. Griswold had deemed the copies “unauthorized” and opened an investigation to determine if Schroeder had violated state election rules.

Claims that the 2020 election was fraudulent or compromised have been debunked by experts, courts and election officials from both parties.