OFFICE OF THE DISTRICT AITORNEY

TWENTIETH Jl:DICIAL DISTRICT

Stanle)' L. Garnett. District Attorney

December 5, 2017

Stan Garnett
District Attorney, 20th Judicial District
1777 6th Street
Boulder, CO 80302

On November 14, 2017 this office received an Elections Complaint Form from Patrick
Murphy. The complaint referenced a recent Boulder Daily Camera article in which a student
was interviewed about his interaction with New Era Colorado. In the article, the student
describes walking across the CU Bolder Campus when he came into contact with New Era
representatives who said "Hey, if you want to vote, we can drive you there. It'll be super quick
and there's free pizza." The student accepted the ride and ultimately voted. Mr. Murphy's
contention is that these actions violate Colorado State voting laws. The complaint further
references a picture posted on twitter showing a few New Era flyers in a polling place. Since
receiving Mr. Murphy's complaint, this office has received similar complaints from other people,
all of which reference the article in the Daily Camera as the source of their information. I

The Office of the District Attorney is statutorily required to investigate allegations of

election misconduct pursuant to ~ 1-13-101 (I). That section provides as follows:

Any person may file an affidavit with the district attorney stating the name of any
person who has violated any of the provisions of this code and stating the facts
which constitute the alleged offense. Upon the filing of such affidavit, the district
attorney shall forthwith investigate, and, if reasonable grounds appear therefor, he
shall prosecute the violator.

While Mr. Murphy claims the Daily Camera article describes illegal conduct, the conduct
described in the article itself does not appear in itself to be illegal in any way. Nevertheless,
investigators from this office have contacted elections judges working at the polling place in
question, the student whose published interview initiated the complaint, and representatives of
New Era. In total, this Office thoroughly interviewed six witnesses. The result is that we have
found no evidence of any violation of election law.

1 While Mr. Murphy also eomplained about golf carts being used to transport voters; as this would not be a violation
of Colorado election law, it is not addressed here.

BOULDER OFFICE: JUSTICE CENTER, 1777 6TH ST., BOULDER, COLORADO80302 303.441.3700 FAX:303.441.4703
LONGMONTOFFICE: 1035 KIM BARK, LONGMONT,COLORADO80501 303.441.3700 FAX:303.682.6711
WWW.80ULDERCOUNTYDA.ORG EMAIL: BOULDER.DA@aOUL.DERCOUNTY.ORG TDDN: 303.441.4774
Stan Garnett
District Attorney, 20th Judicial District
Page 2

Colorado law draws a sharp distinction between normal electioneering and voter
intimidation. Pursuant to ~ 1-13-713, C.R.S. which is entitled "Intimidation," it is unlawful for
any person to "impede, prevent, or otherwise interfere with the free exercise of
the elective franchise of any elector or to compel, induce, or prevail upon any elector either to
give or refrain from giving his vote at any election provided by law or to give or refrain from
giving his vote for any particular person or measure at any such election." Similarly, 91-13-720,
C.R.S. prohibits paying for or promising to pay for a vote.

While 91-13-713 prohibits interfering with a person's free choice to vote or not to vote,
it does not prohibit persuasion or normal electioneering. Electioneering is only prohibited within
100 feet of the polling place pursuant to S 1-13-714, C.R.S. The term "electioneering" as used in
the statute includes campaigning for or against any candidate who is on the ballot or any ballot
issue or ballot question that is on the ballot.

In interpreting these statutes, we are also mindful of the fact that political spcech is
strongly protected by the First Amendment of both the United States and Colorado Constitutions.
As the United States Supreme Court has stated: "The freedom of speech guaranteed by the
Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of
public concern without previous restraint or fear of subscqucnt punishment," and we must "give
the bencfit of any doubt to protecting rather than stifling speech." Fed. Election Comm'n v.
Wisconsin Right To Life, Inc., 551 U.S. 449, 469 (2007).

The complaint at issuc here alleges that a New Era representative said "I f you want to
vote, we can drive you there." While this might have madc it easier for the student to vote, it
clearly did not interfere with the student's "free exercise of the elective franchise." In a further
interview with the student, he indicated that the ride was not given in exchange for him voting in
any particular way, and that political issucs only arose after he had been offcrcd and accepted a
ride. He further indicated that the conversation was "educational, not coerced."

The statement "if you want to vote, we can give you a ride" cannot reasonably be
considered intimidation under Colorado law. There was no allegation of any type of quid pro
quo, or that New Era had coerced or rewarded votes in favor of or against any candidate or issue.
Moreover, the conversations that took place on the way to the polling place appear to the type of
normal electioneering activities that are protected by the First Amendment, and are only
prohibited within 100 feet of a polling place.

With regard to what happened at the polling place, the student indicated that once hc was
in line to vote, no one approached him with campaign literature or did anything that could be
described as electioneering. While he was offered pizza, he did not know who was distributing
it, and believed it to be a student organization. He had no reason to bclieve, and did not believe,
that the people handing out pizza were associated in any way with the people who had given him
a ride, and did not believe the people handing out pizza had a political agenda.
Stan Garnett
District Attorney, 20th Judicial District
Page 3

Election judges working at the polling place similarly told investigators that while there
were people handing out pizza to prospective voters, those people did not wear buttons or
insignias that would have associated them with any candidate or issue, and none were handing
out materials or engaging prospective voters in political conversation. According to one election
judge, the only questions being asked were whether people wanted pizza, and whether they
wanted it with meat or without. Again here, this is not illegal campaign activity.

In his final allegation, Mr. Murphy claimed that a photo was posted on Twitter that
showed "New Era pro 2L materials inside the polling place at CU. Definitely illegal." But the
existence of electioneering materials inside a polling place does not necessarily mean that illegal
activity is taking place. In this instance, election judges reported that there was no electioneering
within the 100 foot perimeter, but that some flyers were left by voters. The election judges
would then collect the stray materials and dispose of them. One election judge interviewed by an
investigator actually remembered the flyers that were captured in the photograph mentioned by
Mr. Murphy, which were on a desk outside the polling place. She also remembered picking
them up and putting them in the trash can. Because these materials were brought by voters, and
were not there as a result of electioneering activities, there was no violation of election law.

Because there is no evidence of any violation of Colorado election law to support this
complaint, this investigation is closed.

Sincerely,

Sa
Sean P. Finn
Chief Trial Deputy
Twentieth Judicial District

Cc: Patrick Murphy