(Promoted by Colorado Pols)
Much of the media coverage of the Colorado Attorney General's decision not to prosecute Jon Caldara, President of the libertarian/conservative Independence Institute, for voter fraud featured a quote from Caldara that the Attorney General's non-action proved his innocence.
For example, there's this memorable Caldara quote from The Denver Post's Lynn Bartels' story: "I told you what I did was legal," Caldara said Thursday, adding "neener-neener-neener."
Bartels and others reported that the AG's letter did not "condone" Caldara's stunt, but no journalist corrected Caldara's mistaken belief that AG letter is proof of his innocence.
While the letter did say there is "arguable ambiguity within some of the new legislation," and Caldara should not be brought to trial, it certainly did not say Caldara's actions were legal, and reporters should have said so categorically.
I asked Luis Toro, Director of Colorado Ethics Watch, for his comments on whether the Colorado Attorney General's letter was proof of Caldara's innocence.
Toro: The AG’s office did not declare Caldara innocent. The prosecutor correctly noted the ethical obligations of a prosecutor when making a charging decision. These include an obligation not to file charges without sufficient evidence to support a conviction. Evidence that could raise reasonable doubt included signing a lease at an address in the district, changing his driver’s license to the Colorado Springs address, and actually staying at the address where he claimed to reside when he voted through Election Day. Caldara’s lawyering up and extensive preparation to raise reasonable doubt only proves that gaming the system is not as easy as he pretends. His attempt to prove that anyone in Colorado can show up anywhere on Election Day, claim to reside in a district, and legally vote ended up proving the opposite…"
The real reason not to charge is, in the prosecutor’s words, Caldara’s “choreographed actions that were designed by him to create a record that he used to support his stated intention that at least on September 7, 2013 through September 10, 2013 he was an El Paso County resident and thus was permitted to be a registered elector.” Caldara only proved that without elaborate “choreographed actions” and top-notch legal representation, someone who shows up on Election Day and falsely claims residence in a given district will be charged and convicted.
I asked Caldara if he thought that he inadvertently proved the opposite of what he intended, that, in fact, you can't just show up on election day and vote.
Caldara: "You can read that into it, if you like, but you would be reading in your own wishes," he told me. "It doesn't say that at all. It says that for what I did, prosecution would be unwarranted and not viable. That's all it says. Now, the AG's office can opine about anything they wish, and that doesn't change the fact that the conclusion is, that prosecution is unwarranted and not viable. And I knew I would be under extra scrutiny, so I took the extra step of simply signing a simple little lease and changing my driver's license address online. It doesn't take a lawyer to do any of that. And I know that there are those who say this can only be done with top legal work, I think the AG's work has given us a very tight blueprint of what becomes unwarranted and not viable to prosecute. It doesn't take a lawyer to do any of that."
Toro had this to say about the Attorney General's reference to "arguable ambiguity within some of the new legislation":
Toro: The “arguable ambiguity” line doesn’t mean much. If something is “arguably ambiguous” it is also arguably not ambiguous. Defendants often argue that a criminal law is ambiguous, with mixed results.
The AG's letter in its entirety:
John W. Suthers Attorney General
Cynthia H. Coffman
Chief Deputy Attorney General
Daniel D. Domenico
STATE OF COLORADODEPARTMENT OF LAWCriminal Justice Section Ralph L. CarrColorado Judicial Center1300 Broadway,-9th FloorDenver, Colorado 80203
Phone (720) 508-6000
Wm. David Byassee, Esq.
Jackson Kelly PLLC
1099 18th Street, Suite 2150
Denver, CO 80202
RE: Caldara Election Complaint
Dear Mr. Byassee:
The purpose of this letter is to inform you of my decision regarding a complaint that was made in September 2013 against your client, Jon Caldara. Following my office’s three-month investigation into the allegations that Mr. Caldara violated one or more statutes, I have determined that no criminal charges will be filed against him at this time. This decision is being made after a comprehensive review of the currently known facts and after an examination of the applicable state statutes. It is important to note that this decision is being made based on the specific known facts in this matter when compared to the applicable state law. Furthermore this decision, which follows the above referenced factual and legal review, is being made in accordance with the ethical standards required of prosecutors who administer the prosecutorial function.
As you might be aware on or about September 9-10, 2013 the Office of the Attorney General and two separate District Attorney offices received a citizen complaint. The citizen’s complaint alleged that Mr. Caldara, a long time Boulder County resident and elector, violated one or more Colorado statutes when he participated as a newly registered elector in an El Paso County recall election on Saturday, September 7, 2013, during an early voting period. The day of the actual election was Tuesday, September 10, 2013. Based on the fact that the complaint named Mark Barker, a current Deputy District Attorney in the El Paso County DA’s Office, as being an individual who was supposedly involved with Mr. Caldara and his alleged behavior, the District Attorney for the 4th Judicial District (El Paso and Teller Counties) requested that the Attorney General’s Office investigate the complainant’s allegations.
Regarding the events surrounding this particular election the investigation most clearly demonstrates that Mr. Caldara had multiple goals leading up to and through the election on September 10, 2013. One of Mr. Caldara’s key goals was his intent to make a public statement about one or more issues that he perceived to exist regarding new election related legislation which resulted from the passage of HB 13-1303.
Mr. Caldara’s stated focus on HB 13-1303 and its potential impact on the election process in Colorado was well documented in the public record during the months leading up to the election in El Paso County in September 2013. It appears that Mr. Caldara’s assertion was, that as of May 10, 2013, the Colorado Revised Statutes (most notably § 1-2-217.7, C.R.S.) permitted him, as a registered Colorado voter, to move from one jurisdiction in Colorado to another jurisdiction in this state and then either update his address or register to vote. Additional relevant statutes at issue that must be read in concert include, but are not limited to, §§1-2-101,
1-2-102(1)(f), 1-2-201(3)(a)(V), 1-2-204, 1-2-205 and 1-2-216(4)(a)(I), C.R.S.. As a result, a reading of these various statutes demonstrates an arguable ambiguity within some of the new legislation. This arguable ambiguity was clearly examined in your client’s specific investigation. In Mr. Caldara’s specific case, which is limited by its unique facts and the applicable statutes, a key issue is present. The issue is what does it mean for a resident of Colorado to demonstrate or assert that his or her intention, as a supposed prospective elector, is to make a new county or precinct a permanent residence at the time that he or she is either updating their address or registering to vote?
With Mr. Caldara voicing his opinions about HB 13-1303 and the laws which arose from the bill, it appears that Mr. Caldara then interpreted the new legislation and began to choreograph a series of calculated actions in preparation of the approaching September 10, 2013 recall election in El Paso County. The evidence acquired by the Attorney General’s investigation includes information that prior to Mr. Caldara actually appearing at the El Paso County Citizens Service Center on the morning of Saturday, September 7, 2013, that he had already taken various actions in an attempt to demonstrate his stated intention of becoming a qualified elector in State Senate District 11 (Colorado Springs, El Paso County), including the following:
- On September 6, 2013 Mr. Caldara entered into a residential lease agreement with Deputy District Attorney Mark Barker to rent a bedroom with access to a bathroom and with kitchen privileges at Mr. Barker’s home, which is located at 2045 Broman Ct., Colorado Springs, CO 80906;
- He had changed his home address for his State of Colorado issued Driver’s License from a Boulder County residential address to 2045 Broman Ct., Colorado Springs, CO 80906.
With Mr. Caldara having created a record of his supposed intention to make El Paso County his sole legal place of residence, he went to the El Paso County Clerk and Recorder’s Citizens Service Center September 7, 2013 while accompanied by members of the media. The evidence then shows that Mr. Caldara apparently was given a registration form that he filled out and self-affirmed by signing. It should be noted that Mr. Caldara failed to fully complete this registration form when he did not list the date that he had supposedly moved to 2045 Broman Ct., Colorado Springs, CO 80906. This particular field on the form was a required field and at the top of the form it stated that if the registrant did not provide all of the required information, the application to register to vote would not be complete. Nonetheless Mr. Caldara was in fact registered to vote by the election staff. After Mr. Caldara provided the election staff with a Driver’s License he was given a Paper Ballot (Ballot #01343) for the Senate District 11 Recall Election. The evidence then shows that while Mr. Caldara did submit a ballot on September 7, 2013 he apparently did not cast an actual vote in the particular election. Furthermore, the acquired evidence shows that Mr. Caldara apparently stayed/resided at 2045 Broman Ct., Colorado Springs, CO 80906 on Election Day, September 10, 2013.
On Wednesday, September 11, 2013, the day after the recall election Mr. Caldara left the Broman Ct. address in Colorado Springs and went to his work in Denver. It should be noted that September 11, 2013 was the beginning of the multi-day series of rains that caused the unprecedented flooding that devastated parts of the Front Range, including in Mr. Caldara’s long time hometown of Boulder. In the subsequent weeks after the floods had occurred Mr. Caldara made a public statement that he was reclaiming Boulder County as his home of record. The additional issues created by Mr. Caldara’s post flood statement about Boulder County again being his home is another obstacle in confirming or disproving the veracity of Mr. Caldara’s self-affirmation that, at least on September 7, 2013, his intention was to use the leased residence on Broman Ct. as his sole legal residence. It should be noted that Mr. Caldara then changed his county of residence for voting purposes back to Boulder County in November 2013.
It is imperative to note that the Office of the Attorney General does not condone Mr. Caldara’s choreographed actions that were designed by him to create a record that he used to support his stated intention that at least on September 7, 2013 through September 10, 2013 he was an El Paso County resident and thus was permitted to be a registered elector. Various factors cause me to hesitate when examining the veracity of Mr. Caldara’s intention of being an El Paso County resident on September 7, 2013. In particular I noted Mr. Caldara’s use of a lease agreement with Deputy District Attorney Mark Barker and the circumstances
surrounding this lease as being questionable. While the legitimacy of Caldara/Barker lease arrangement is suspicious, when the available evidence and the applicable law, including arguable ambiguities, are reviewed and compared to the ethical standards for commencing a prosecution, I have determined that a criminal prosecution is not warranted or viable at this time.
FOR THE ATTORNEY GENERAL
Robert S. Shapiro
First Assistant Attorney General
cc: Dan May, Esq.
Office of the District Attorney
105 E. Vermijo Ave.
Colorado Springs, CO 80903