Lone prosecutor in Gessler anti-vote-fraud campaign drops first case

 
The charge has been dropped in what’s believed to be the first voter fraud case set for trial since Secretary of State Scott Gessler urged district attorneys statewide to prosecute people who purportedly are cheating Colorado’s election system.

Mike Michaelis was scheduled to be tried today for allegedly procuring false information on a voter registration form. Michaelis, 41 and now in construction, registered voters in 2012 on behalf of Work for Progress, a nonprofit that, as its website states, campaigns “for social justice, a fair economy, consumer protection, clean energy, and the environment.”

On a voter registration form submitted to Michaelis by Aurora resident Lydie Kouadio, a box was marked saying she is a U.S. citizen. Gessler’s office determined she isn’t. Her name was among 155 voters the Secretary of State deemed to be suspicious. Last June, Gessler sent prosecutors lists of residents in their districts for possible prosecution.

In Arapahoe County, District Attorney George Brauchler’s office investigated Kouadio along with the 40 other people in his district Gessler was targeting.

Instead of prosecuting Kouadio, Brauchler’s office charged Michaelis based on Kouadio’s claims that Michaelis filled out the registration form for her. Prosecutors continued pressing the case even after Michaelis’s lawyer gave them documents clearly showing that the handwriting on Kouadio’s registration form is the same handwriting on a ballot she cast in that year’s election – a ballot on which a box asking about her U.S. citizenship also was checked. Identical handwriting on the registration form and on the ballot form completed nearly two months later makes it clear that that Kouadio, not Michaelis, filled out Kouadio’s voter registration. Still, Brauchler’s office assured Kouadio that “no criminal charges will be filled against you” even though she apparently broke the law by voting as a noncitizen. In that same letter, she was notified that she would be a witness in Michaelis’ case.

State laws are clear that noncitizens can’t vote and that canvassers can’t fill out registration forms for prospective voters. But the law doesn’t put the burden of proving citizenship on the canvassers. Michaelis had no way of verifying Kouadio’s citizenship while standing outside the Arapahoe County Social Services Building registering voters for about $10 an hour.

An election judge ultimately approved Kouadio’s provisional ballot.

Michaelis is outraged that he was prosecuted based on the claims of a woman who apparently voted illegally. He raises questions about why Kouadio – who couldn’t be reached for comment — wasn’t prosecuted, why DAs were relying on her as a witness, whether she was offered a deal and whether he was targeted because he was registering voters on behalf of a liberal group.

Gessler – who’s running for governor – and Brauchler are both Republicans.

If he had been tried and found guilty, Michaelis faced up to 18 months in county jail, a $5,000 fine, or both.

“All that on top of the possibility of carrying a fraud conviction on my record for the rest of my life,” he said. “It’s distressing that the District Attorney pushed forward such a frivolous case, wasted taxpayer money and my time and spent so much effort pushing this charge against me.”

Asked about the case Tuesday, Brauchler told The Colorado Independent, “I feel like I’m sort of tipping my hand here,” but, “I think we’ll end up dismissing that case.”

His office notified Michaelis’s lawyer, Alonit Cohen, that it would drop charges today based on “new evidence” – the handwriting comparison she had provided in January.

“I take seriously the accusations our office makes on behalf of other people,” Brauchler said.

“How do we create perfection where nobody could have a case dismissed when we find out stuff later? It’s a system run by human beings. And a system run by human beings from time to time is going to make a mistake sometimes,” he added. “I’ll sleep far better at night knowing that we dismissed a case that we should have dismissed.”

For more than five months, Michaelis’s defense team asked Brauchler’s office to dismiss the case.

“I have presented their lack of evidence over and over again. It seems to me that DA Brauchler did not decide to dismiss this case until the media started questioning his reasoning for continuing to prosecute Mr. Michaelis,” Cohen said. “Scott Gessler and George Brauchler are performing an injustice by continuing to prosecute unsubstantiated voter fraud claims, especially if they are doing it as an attempt to win elections for the Republican party.”

Brauchler is prosecuting three more people whose names were on Gessler’s list. The case against voter Tadesse Tegafa is set for trial in July. Voter Vitaliy Grabchenko is scheduled to be arraigned in September. And Carl Blocker, a canvasser like Michaelis, is slated for a pre-trial conference next week.

Brauchler said Kouadio and the vote she cast in 2012 “might be looked into again.”

If in fact Kouadio voted as a noncitizen, hers would be the kind of case that Gessler has been warning about since he was elected four years ago. His office did not return repeated phone calls about the issue it says is a top priority.

“How many illegal voters are we willing to tolerate before we start enforcing the law?” Gessler’s spokesman Rich Coolidge was quoted in the Daily Camera last August.

Soon after taking office in 2011, Gessler, a longtime Republican election lawyer, claimed there were 16,000 noncitizens registered to vote in Colorado. Soon after, he said he identified 11,805 people as potentially fraudulent voters because they used noncitizen identification for drivers’ licenses with which they registered to vote.

Those figures, he said, backed up his claims that there was a “gaping hole” in the state’s voting system.

But Gessler’s numbers were off — way off – even as he alerted a congressional panel about Colorado’s purported rash of voter fraud.

Several county clerks, the officials who actually carry out elections, were skeptical about Gessler’s voter fraud figures, saying they didn’t add up. They asked for specifics.

The Secretary of State’s office used a federal database to run names of voters it deemed to be suspicious. Gessler’s staff identified 155 noncitizens who were registered to vote. Among them, 35 people — out of 3.5 million registered voters statewide — had cast ballots. That’s .001 percent of Colorado’s voting population.

Critics noted that of the 35 people Gessler listed, 18 were registered Democrats, 10 were unaffiliated and five were Republicans.

Gessler downplayed the disparity between his warnings of rampant voter fraud and actual data, saying that the methods his office used couldn’t possibly catch all illegal voters. Besides, he said, even one unqualified ballot muddies the whole system.

In July of 2013, Gessler sent names of 155 voters to district attorneys to investigative and potentially prosecute.

Unwavering in his battle against what his critics say is a statistical non-problem, Gessler sent names of voters to district attorneys to investigate and potentially prosecute.

Most DAs ignored the issue. In Boulder County, the state’s most liberal district attorney, Stan Garnett, researched the 17 people Gessler’s office sent him and found that none of them voted illegally. Garnett denounced Gessler for what he implied was a politically motivated fear campaign.

“Local governments and county clerks do a really good job regulating the integrity of elections, and I’ll stand by that record any day of the week,” Garnett was quoted in the Boulder Daily Camera. “We don’t need state officials sending us on wild goose chases for political reasons.”

On Tuesday, Brauchler said that he’s the only DA in the state to prosecute any of the cases Gessler targeted. “I think some jurisdictions investigated more seriously than others,” he said.

Of the 41 names Brauchler said Gessler sent him, Brauchler’s investigator found only four cases to prosecute, including Michaelis’s, the one he threw out Tuesday.

“It’s hard to imagine how four of anything would be considered epidemic. We have far more overdose deaths and murders” than fraud cases, he said. “Nevertheless, I do think it’s serious. And even if we have one, I do think we have to address it. We have to take it seriously and I want people to know that. The right to vote is a big deal and people should treat that like it’s something sacred and I want people to know the value of the vote.”

Gessler – who’s in a four-way primary race for the GOP gubernatorial nomination – speaks often about voting integrity on the stump. He often politicizes it as a partisan issue.

“The truth is that the Democrats do turn a blind eye to anything that can go wrong from an election integrity standpoint,” he said May 17 on KOA 850 AM’s Ross Kaminsky Show. “So they want to just break open these rules that we have that try and prevent vote fraud, because– and they believe that it can never occur.”

Colorado Common Cause, a government accountability group, acknowledges the need to end voter fraud, but sees Gessler’s crusade against a statistically minor problem as his way to ice out certain voters.

“There’s no question that only eligible voters should participate in our elections. If someone who’s not eligible to vote registered and votes in an election, they should be prosecuted. But that’s not what happened in this case. That’s not what this case was about,” said Elena Nunez, the group’s executive director. “The first case we saw was dismissed because instead of going after the real issue, they went after someone doing voter registration.

“If you look at his dialogue about voter fraud, it’s clear what he’s trying to do – chilling participation, not increasing participation. After years of the Secretary of State trying to ferret out voter fraud, it’s clear there’s not much there.”

Michaelis, an independent, said his brush with the law has chilled him from political involvement, at least for now. Having been prosecuted for a case in which an apparently fraudulent voter was overlooked, he says the “blind eye” the secretary of state complains about is Gessler’s own.

“He uses the issue of voter fraud as a political Trojan horse,” he said. “What happened here is that the secretary of state convinced a district attorney to target someone who was trying at a very basic level to get people involved in democracy. Together, they abused the judicial system to blow things out of proportion and incite constituents. That’s what happened to me, and it’s inexcusable.”

[ Top photo: Mike Michaelis. ]