Federal Magistrate Judge Scott Varholak told Colorado on December 8, 2025 that Tina Peters “without question” raised important constitutional questions about whether District Judge Matthew Barrett punished her more severely because of her protected speech. HCA covered Varholak’s finding at the time. Four months later, the Colorado Court of Appeals spent 78 pages reaching the same conclusion about the sentence and never mentioned the federal judge who said it first.
The Court of Appeals found that Barrett did exactly what Varholak flagged. Barrett called Peters a “charlatan” peddling “snake oil.” He said her words were “particularly damaging” because of her position. The court concluded Barrett imposed the nine-year sentence “because Peters continued to espouse the views that led her to commit these crimes.” The court cited United States v. Lemon: “A sentence based to any degree on activity or beliefs protected by the First Amendment is constitutionally invalid.” Barrett punished Peters for what she said, not what she did. Peters is no longer the Mesa County Clerk. She cannot repeat the conduct.
Attorney General Phil Weiser and Secretary of State Jena Griswold spent months defending this prosecution, this trial, and this sentence. Both are running for statewide office. Weiser won 90% at the Democratic state assembly March 28 for governor. Griswold edged David Seligman 42-41% for attorney general.
Weiser called the sentence “fair and appropriate” on April 2 — the day the court ruled it violated the First Amendment. On March 4, he called clemency “a grave miscarriage of justice and dangerous for free and fair elections.” Griswold said comparing Peters to former state Senator Sonya Jaquez Lewis was “not accurate” and that Peters “should get no special treatment by the Governor.”
A three-judge panel just told Colorado the sentence they defended was unconstitutional. The state’s leading candidates for governor and attorney general publicly championed it. Neither has addressed the ruling.
The court also rejected President Trump’s pardon of Peters, ruling that presidential pardon power does not extend to state crimes. The court admitted the phrase “offenses against the United States” is ambiguous. It admitted the Supreme Court has never decided the question. Every case cited is dictum, a lower court, or a state court. No appellate court has litigated presidential pardon power over state offenses to final judgment.
Varholak’s absence from the pardon analysis is not a minor omission. A federal judge found a federal constitutional violation in a state prosecution. The federal government, through its own judiciary, identified that Colorado violated Peters’ rights under the United States Constitution. If the federal government has standing to find constitutional violations in state criminal proceedings, the position that a president cannot reach those proceedings with a pardon loses its foundation. The Court of Appeals kept the pardon and the sentencing in separate analyses. Connecting them through Varholak would have forced the court to reconcile two positions — that the federal government has no authority over state offenses, and that a state offense violated a federal constitutional right.
The court upheld every evidentiary ruling Barrett made at trial. Peters could not tell the jury why she did what she did. Her federal statutory duty to preserve election records under 52 U.S.C. § 20701 — excluded. Her belief that the voting machines were compromised — excluded. Expert reports — excluded. The jury heard the prosecution’s version of Peters’ intent. It never heard hers. Barrett decided her reasons were irrelevant before the first juror sat down. The appeals court agreed.
Lewis was convicted of one count of the same Class 4 felony — attempting to influence a public servant — plus three forgery counts. She received probation. Peters was convicted of three counts of the same charge plus four additional convictions. She received nine years. She has served eighteen months.
The Court of Appeals got one thing right. The sentence was unconstitutional. It rejected a pardon argument no court has ever finally decided. It upheld a trial that prevented Peters from presenting her defense. And it omitted the federal judge whose finding four months earlier connected the sentencing violation to the pardon question the court wanted to keep separate. The Supreme Court has never answered whether presidential pardon power reaches state prosecutions that violate federal constitutional rights. This case presents the question.
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