UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ TINA PETERS, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA; MERRICK B. GARLAND, in his official capacity as Attorney General of the United States; JENA GRISWOLD, in her official capacity as Colorado S ecretary of State, Defendants, and DANIEL P. RUBINSTEIN, in his official capacity as District Attorney for the Twenty-First Judicial District, Defendant - Appellee. No. 24-1013 (D.C. No. 1:23-CV-03014-NYW-SKC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BACHARACH , and PHILLIPS , Circuit Judges.

* After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not materi ally assist in the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, re s judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 21, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 12 ________________ _________________ Tina Peters asked the district court to prevent Daniel P. Rubinstein, the District Attorney for Mesa County, Colo rado, from criminally prosecuting her in state court because he allegedly retalia ted against her for exercising her First Amendment rights. She now a ppeals the district court’s decision to abstain under Younger v. Harris , 401 U.S. 37 (1971), from reaching th e merits of her claim. She contends that the court (1) could not ab stain because she is immune from state prosecution and (2) improperly applied Younger . We affirm.
I. BACKGROUND 1

A. Factual History Ms. Peters is the former Mesa County Clerk in charge of elections. While serving as clerk, she arranged for a consultant to enter a secured area of the clerk’s office and to copy county voting r ecords. She gave the copies to experts to analyze. Based on the experts’ analys is, Ms. Peters concluded th e county’s voting system had vulnerabilities and petitioned the Board of County Commissioners to stop using its system. Federal, state, and local law en forcement searched her home.

1 Because Ms. Peters appeals from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), we need no t assume the complaint’s fact ual allegations are correct, and we may consider the exhibits att ached to her origin al complaint. See United States v. Rodriquez-Aguirre , 264 F.3d 1195, 1203 (10th Cir. 2001 ). Ms. Peters did not reattach them to her First Amended Comp laint, but like the district court, we consider them as incorporated into the Fi rst Amended Complaint. Joint App., Vol. IV at 765 n.7. We also assume Rule 12(b)(1) is a proper vehicle for a Younger abstention motion. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 23 B. State Court Proceedings On March 8, 2022, a state grand jury i ndicted her on 10 criminal counts. The indictment alleged that Ms. Peters (1) “d evised and executed a deceptive scheme . . . designed to influence public servants, breach security protocols, exceed permissible access to voting equipment, and set in motion the eventual distribution of confidential information to unauthorized pe ople” and (2) used someone else’s “name and personal identifying information” “with out permission or lawful authorization” “to further [her] criminal scheme.” Joint App., Vol. III at 527. On May 5, 2022, Mr. Rubinstein moved to quash a subpoena duces tecum that Ms. Peters had sent him reque sting certain physical evid ence related to the county’s voting system. On May 12, 2022, Ms. Peters moved for re view of the grand jury indictment to determine whether probable cause s upported the charges against her. On June 3, 2022, the stat e court held that probable cause supported each of the charges in the indictment. On June 5, 2022, the state c ourt granted the motion to quash. On April 1, 2024, Ms. Peters moved to dismiss the indictment, arguing she was immune from prosecution under the Supremacy Clause in Article VI of the United States Constitution. On May 7, 2024, the state court denied her motion. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 34 C. Federal Court Proceedings
Federal District Court On November 14, 2023, Ms. Peters sued Mr . Rubinstein in his official capacity under 42 U.S.C. § 1983 in the United States District Court for the District of Colorado. 2 She brought a First Amendm ent retaliation claim, alleging Mr. Rubinstein’s investiga tion and prosecution were in retaliation for her public criticism of the county’s voting system. 3 She contended that when she learned a technology upgrade would delete some data from the county’s voting records, she acted to protect election in tegrity and to comply with federal election law’s record management requirements. She sought declaratory and in junctive relief to prevent Mr. Rubinstein from investigating a nd prosecuting her in state court. On November 27, 2023, Ms. Peters moved the district court for a preliminary injunction to stop Mr. Rubinstein “from cond ucting, continuing, or participating in

2 Ms. Peters also sued Jena Griswold in her official capacity as Colorado Secretary of State; Merrick Garland in his official capacity as Attorney General of the United States; and the United States of America. T hose claims are not at issue in this appeal.

3 For a First Amendment retaliation clai m where the government defendant is neither the plaintiff’s employer nor a party to a contract with the plaintiff, the plaintiff must show (1) “the plaintiff was engaged in constitutionally protected activity”; (2) “the defendant’s actions caused the plaintiff to su ffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity”; and (3) “the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.” Worrell v. Henry , 219 F.3d 1197, 1212 (10th Cir. 2000) (quotations omitted). “The First Am endment applies to th e States under the Due Process Clause of the F ourteenth Amendment.” iMatter Utah v. Njord , 774 F.3d 1258, 1263 (10th Cir. 2014) (citing Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc. , 425 U.S. 748, 749 n.1 (1976)). Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 45 any way in proceedings in [t he state court case ], or any other criminal proceedings against or harassment of [Ms.] Pe ters.” Dist. Ct. Doc. 8 at 1; Joint App., Vol. I at 3. On December 13, 2023, Mr. Rubinstein responded by moving to dismiss the case, arguing for the district court to abstain under Younger from reaching the merits, including the request for a preliminary injunction. On January 8, 2024, the district c ourt granted Mr. Rubinstein’s motion, holding that abstention was appropriate and denying the preliminary injunction motion as moot. It reasoned that Younger abstention was mandatory because state proceedings were ongoing, implicated im portant state intere sts, and afforded Ms. Peters an adequate opportunity to pr esent her “constitutional challenges arising under the First Amendment or the Priv ileges and Immunities Clause of the Fourteenth Amendment.” Jo int App., Vol. IV at 767; see also id. at 766-69. On the adequate-opportunity issue, it said that Ms. Peters could rais e her First Amendment claim in the state proceedings and that she had not shown “she was prevented by the [state court] from” doing so. Id. at 768. The district court also found that Ms. Peters had failed to show Mr. Rubinstein’s actions constituted “har assment or prosecutions undertaken by [a] state official[] in bad faith without hope of obtaining a va lid conviction”—an exception to Younger abstention. Id. at 769 (quotations omitted); see also id. at 770. It explained that the st ate court had made a “t horough and well-reasoned” determination that probable cause supported the charges ag ainst Ms. Peters and that Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 56 “[w]ithout more evidence,” she had not made even a prima facie showing that the prosecution was in bad faith. Id. at 770-73. The district court dismissed the cl aim against Mr. Rubinstein without prejudice, certified its order under Federal Rule of Civil Procedure 54(b), and entered judgment for Mr. Rubinstein. U.S. Court of Appeals On January 10, 2024, Ms. Peters a ppealed. We have jurisdiction under Rule 54(b). 4 See, e.g. , Stockman’s Water Co., LLC v. Vaca Partners, L.P. , 425 F.3d 1263, 1265 (10t h Cir. 2005). On January 19, 2024, Ms. Peters moved this court to enjo in the state court proceeding pending appeal. On February 5, 2024, we denied the motion because Ms. Peters had not carried her burden to show she met the standard s for an injunction pending appeal. After Ms. Peters filed her opening bri ef in this court, she unsuccessfully moved the state court to dism iss the indictment based on the same Supremacy Clause immunity arguments she raised in her opening brief here.

4 After Ms. Peters filed her docketing statemen t, we noted that the district court did not make two express determinations required by Rule 54(b). We gave Ms. Peters time to file a proper Rule 54(b) certification, and she did. Doc. 11063320; Joint App., Vol. IV at 801-09. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 67 On May 24, 2024, Ms. Peters moved this court to expedite the appeal, urging us to hear and decide her case before he r criminal trial is scheduled to begin on July 29, 2024. We deny the motion as moot.
II. DISCUSSION Ms. Peters argues the district court (1) could not abstain because she is immune from state prosecution and (2) improperly applied Younger . We disagree.
A. Immunity Ms. Peters argues that her “efforts to comply with federal election law” made her conduct “immune from state prosecution un der the Supremacy Clause,” Aplt. Br. at 25 (capitalization altered without notati on), and thus “deprive[d] [the] state court of subject-matter jurisdiction,” id. at 27. But Ms. Peters never presented this argument to the district court. 5 Appellants waive issues not raised before the district court absent arguing the “rigorou s plain-error test” on appeal. In re Syngenta AG MIR 162 Corn Litig. , 61 F.4th 1126, 1180 (10th Cir. 2023). Ms. Peters does not argue plain error, so any Supremacy Clause immunity argument is “surely” at the

5 Ms. Peters argues she did present the issue to the district court by stating in her complaint that she was “immune from prosecu tion” under “the Privileges and Immunities Clause in the Fourteenth Am endment and the Supremacy Clause in Article VI of the United States Constitution.” Aplt. Br. at 30 (quoting Joint App ., Vol. I at 44; Joint App., Vol. III at 725). But this passing mention was insufficient. We do not address arguments made before the district court in only a “perfunctory and underdeveloped manner,” including “[v]ague, arguable,” or “[f]leeting references.” In re Rumsey Land Co. , 944 F.3d 1259, 1271 (10th Cir. 2019) (quotations omitted). Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 78 “end of the road.” Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011). Ms. Peters counters that waiver is in applicable because her immunity claim goes to the state court’s subj ect matter jurisdiction, Aplt. Reply Br. at 2, but she misses the mark. A party cannot fo rfeit or waive an argument about this court’s subject matter jurisdiction. See, e.g. , Gad v. Kan. State Univ. , 787 F.3d 1032, 1035 (10th Cir. 2015); Fed. R. Civ. P. 12(h)(3) (“If the court de termines at any time that it lacks subject-matter jurisdiction, th e court must dismiss the action.”); Sheldon v. Golden Bell Retreat , No. 22-1428, 2023 WL 8539442, at *2 (10th Cir. Dec. 11, 2023) (unpublished) (cited for persuasive value c onsistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1). This principle does not extend to Ms. Peters ’s merits argument that the federal district cour t or this court should issue a declaratory judgment and an injunction because she is imm une from state prosecution. See Big Horn Coal Co. v. Dir., Off. of Workers’ Comp . Programs, U.S. Dep’t of Lab. , 55 F.3d 545, 551 (10th Cir. 1995) (hol ding that party may be held to waiver when it challenges a merits determination, even if the party characterizes it as a subject matter jurisdiction issue); Wyoming v. Livingston , 443 F.3d 1211, 1216 (10th Cir. 2006) (holding that Supremacy Clause immunity arguments are waivable). 6

6 Ms. Peters also contends that the Fourteenth Amendment’s Privileges and Immunities Clause provides a separate immunity claim, see Aplt. Br. at 24, or “reinforces” her Supremacy Clause immunity claim, Aplt. Reply Br. at 21. But she Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 89 B. Abstention Legal Background “We review de novo the district cour t’s decision to abstain from exercising jurisdiction under Younger .” Phelps v. Hamilton (“ Phelps II ”), 122 F.3d 885, 889 (10th Cir. 1997).

a. Younger abstention requirements
“In Younger , the Supreme Court held that fe deral courts, except in the most exceptional circumstances, must dismiss suits for decla ratory or injunctive relief against pending state criminal proceedings.” Id. (citing Younger , 401 U.S. at 43, 53-54). “Before a federa l court abstains, it must de termine that: (1) the state proceedings are ongoing; (2) the state proceedi ngs implicate import ant state interests; and (3) the state proceedings afford an ade quate opportunity to present the federal

waived those arguments by faili ng to raise them before the district court or in her opening brief. See In re Syngenta , 61 F.4th at 1180-81. Further, it is not clear a federal cour t could properly adj udicate Ms. Peters’s immunity claims outside a re quest for a writ of habeas corpus or on motion to dismiss an indictment after the case has been removed to federal court under 28 U.S.C. § 1442(a)(1). See Willingham v. Morgan , 395 U.S. 402, 406-07 (1 969) (noting that to take advantage of “the protection of a fe deral forum” and to have “the validity of the defense of official imm unity tried in a federal cour t,” a federal officer should use 28 U.S.C. § 1442(a)(1)’s removal provision); Whitehead v. Senkowski , 943 F.2d 230, 233 (2d Cir. 1991) (describ ing habeas and removal prov isions in the Supremacy Clause context as “alternative[s]”); Se th P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, Stat e Criminal Law, an d the Supremacy Clause , 112 Yale L.J. 2195, 2251 (2003) (“Supremacy Clause immunity does not displace state law in any categorical wa y. Rather, it merely limits the application of state law against a discrete, numerically limite d set of potential defendants—federal officers.”). The parties fail to address this limitation. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 910 constitutional challenges.” Id. (citing Middlesex Cnty. Ethics Comm. v. Garden State
Bar Ass’n , 457 U.S. 423, 432 (1982)). On the third requirement, “unless state la w clearly bars the interposition of the federal statutory and constitutional claims, a plainti ff typically has an adequate opportunity to raise federal claims in state court.” Winn v. Cook , 945 F.3d 1253, 1258 (10th Cir. 2019) ( quotations omitted). “ Younger requires only the availability of an adequate state-court forum, not a favorab le result in the state forum.” Id. “Once these three conditions are met, Younger abstention is non-discretionary
. . . .” Crown Point I, LLC v. Intermountain Rural Elec. Ass’n , 319 F.3d 1211, 1215 (10th Cir. 2003). b. Younger exceptions Courts have recognized exceptions to Younger abstention: the prosecution “was (1) commenced in bad faith or to hara ss, (2) based on a flagrantly and patently unconstitutional statute, or (3 ) related to any other such extraordinary circumstance creating a threat of ‘irreparable injury’ both great and immediate.” Phelps v. Hamilton (“ Phelps I ”), 59 F.3d 1058, 1064 ( 10th Cir. 1995) (quoting Younger , 401 U.S. at 53-54). “[ T]he[se] exceptions to Younger only provide for a very narrow gate for federal intervention” because of “respect[] [fo r] prosecutorial discretion and federalism.” Id. Thus, the plaintiff bears a “h eavy burden” to show an exception applies. Phelps II , 122 F.3d at 889 ( quotations omitted). To determine whether a state commenced a prosecution in bad faith or to harass, courts consid er three factors: Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1011 (1) whether it was frivolou s or undertaken with no reasonably objective hope of success; (2) whether it was . . . in re taliation for the defendant’s exercise of constitutional rights; and (3) whether it was conducted in such a way as to constitute harassment and an abuse of prosecutorial discretion, typically through the unjustif ied and oppressive use of multiple prosecutions. Id. (paragraph structure added). The plai ntiff must set fort h “more than mere allegations of bad faith or harassment” th rough “additional, suppl emental evidence.” Id. at 889-90. If the plaintiff can make this “initial showing of ret aliatory animus, the burden shifts back to the d efendant to rebut the presum ption of bad faith by offering legitimate, articulable, objec tive reasons to justify the decision to initiate these prosecutions.” Id. (quotations omitted). Application Ms. Peters argues (a) the third Younger factor is not met and (b) the bad faith exception applies. We disagree.

a. Younger applies The parties do not disput e that the first two Younger requirements are met— there is an ongoing state criminal proceeding and st ate criminal proceedings implicate important state inte rests. As explained below, the third requirement is also

met. 7

7 To the extent Ms. Peters argues Younger applies but the state court’s actions constitute an “extraordinary ci rcumstance[] that would render [the] state court unable to provide [her] a full and fair h earing on [her] federal claims,” Phelps II , 122 F.3d at 891, Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1112 i. First Amendment claim Ms. Peters argues in her opening brie f that the state court “foreclosed consideration of [her] constitutional claims ” because it “concluded” in resolving a motion to quash “that th[e ] merits” of her constitutio nal claims “would not be adjudicated.” Aplt. Br. at 38 (capitalization altered without notation). We infer she means the state court would not consider he r First Amendment retaliation claim. We reject her argument. Ms. Peters must show the state court proceedings could not “afford [her] an adequate opportunity to present” her First Amendment claim. Phelps II , 122 F.3d at 889. She has not. 8 She has made no argument that “state law cl early bars” her from raising her claims. Crown Point , 319 F.3d at 1215 (quotations omitted). Rather, she asserts that the state court “made a ruling that precluded consideration of [her] federal claims.” Aplt. Br. at 39. The record does not support her contention. In the state court’s ruling on Mr. Rubins tein’s motion to quash, it determined that he was not required to turn over co mputer equipment related to the county’s election system. It held that “the issue of election equipment [wa]s collateral” and the evidence was unnecessary for Ms. Peters ’s argument that her “alleged crimes

we disagree for the same reasons discussed be low. She has not pointed to authority or procedural history to show such an extraordinary circumstance.

8 Ms. Peters recently filed a Federal Rule of Appellate Procedure 28(j) letter calling our attention to National Rifle Ass’n v. Vullo , 144 S. Ct. 1316 (2024). Vullo does not show that she lacked an opportunity to present her Fi rst Amendment claim in state court. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1213 were necessary . . . to avoid an imminent public or privat e injury . . . of sufficient gravity to outweigh the criminal conduct.” Joint App., Vol. I II at 541 (quotations omitted). The court said that any th reat of injury was not imminent. Id. at 542. Ms. Peters did not even mention the Firs t Amendment in her briefing on the motion to quash. See Joint App., Vol. IV at 810-34. The state court’s evidentiary ruling did not, therefore, “conclude that th[e] merits ” of her First Amendment claim “would not be adjudicated in the prosecution” or that such a claim would be “out-of-bounds.” Aplt. Br. at 40. ii. Immunity claim After she filed her opening brief in this court, Ms. Peters m oved in state court to dismiss the indictment for lack of jurisdiction based on the same Supremacy Clause immunity arguments she presents here. The state court adjudicated her arguments, rejected them on the merits, and denied Ms. Peters’s motion. In her motion to expedite filed with this court, she now argues Younger abstention should not apply because the state court “exceeded its authority to address questions of federal law regarding whether she was” enti tled to immunity. Doc. 11093062 at 5. This new argument also fails. “Under nor mal circumstances, . . . state courts . . . can and do decide questions of federal law . . . .” El Paso Nat. Gas Co. v.
Neztsosie , 526 U.S. 473, 485 n.7 ( 1999). None of the cases Ms. Peters cites supports the proposition that the state court, whic h she asked to adjudicate her Supremacy Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1314 Clause immunity argument, la cked jurisdiction to do so. 9 “State courts have long adjudicated . . . whether federal office rs are entitled to Supremacy Clause immunity[,] . . . [a]nd they have continue d to do so after the codification of the modern federal-officer re moval statute . . . .” State v. Meadows , 88 F.4th 1331, 1343 (11th Cir. 2023) (c itations omitted). b. Bad faith exception Ms. Peters argues the bad faith exception to Younger abstention applies. Aplt. Br. at 34-38; Aplt. Reply Br. at 23-27. She fails to establish any of the three bad faith factors. i. Frivolousness Ms. Peters has not shown the prosecuti on was “frivolous or undertaken with no reasonably objective hope of success.” Phelps II , 122 F.3d at 889. She contends that “[t]he plainly apparent deficiencies in each of the counts of the indictment demonstrate . . . bad faith.” Aplt. Br. at 37. But as the district court noted, the state court concluded that probable cause supported each of the charges against Ms. Peters,

9 The precedential cases Ms. Peters cite s, Aplt. Br. at 25-30; Aplt. Reply Br. at 9-21; Doc. 11093062 at 5-6; Doc. 11095 215 at 2, considered situations where federal officers removed cases from state to federal court or where state jurisdiction was at issue on habeas review. See Livingston , 443 F.3d at 1224 (explaining that a federal officer may remove a case from state to federal court under 28 U.S.C. § 1442); Tennessee v. Davis , 100 U.S. 257, 263-71 (1879) (upholding the constitutionality of a statute like 28 U.S. C. § 1442 allowing federal officers to remove proceedings from st ate to federal court); Cunningham v. Neagle , 135 U.S. 1 (1890) (considering state juri sdiction on habeas review); Ohio v. Thomas , 172 U.S. 276 (1899) (same). Another involved an appeal from state court to the Supreme Court. Johnson v. Maryland , 254 U.S. 51 (1920). Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1415 which weighs against her. See Joint App., Vol. IV at 77 0 (district court opinion); Joint App., Vol. III at 646- 50 (probable cause review). She has not provided cases or evidence showing the charges had “no r easonably objective hope of success.” Phelps II , 122 F.3d at 889; see Phelps I , 59 F.3d at 1067 (noting that a prosecution was not in bad faith where “the parties’ br iefs suggest[ed] that the criminal . . . prosecutions were based on probable cause”); Carrillo v. Wilson , No. 12-cv-03007, 2013 WL 1129428, at *5 (D. Colo. Mar. 18, 2013) (finding prosecution nonfrivolous when state court determined charges were supported by probable cause); Wrenn v.
Pruitt , No. 5:21-cv-00059, 2021 WL 1845968, at *4 (W .D. Okla. May 7, 2021) (same). ii. Retaliation Ms. Peters argues Mr. Rubinstein’s investigation and prosecution was retaliation for her exercise of constitutional rights. 10 Aplt. Br. at 36-37. She points to several parts of the reco rd, none of which “prove[s] that retaliation was a major motivating factor and played a dominant role in the decisi on to prosecute.” Phelps I , 59 F.3d at 1066 (quotations omitted).

10 Ms. Peters argues that prosecutions ma y be retaliatory even if supported by probable cause. Aplt. Br. at 37 (citing Phelps I , 59 F.3d at 1064 n.12). This proposition may be in tension with the Supreme Court’s holding in Hartman v. Moore , 547 U.S. 250 (2006), that a plaintiff cannot state a claim of retaliatory prosecution in violation of the First Amendment if the charges were supported by probable cause. Id. at 265-66. But we need not resolve that issue here because even if we accept Ms. Peters’s contention, she has not met her burden to show retaliation. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1516 First, Ms. Peters says Mr. Rubinste in’s office “harassed her 93-year-old mother” and “interjected . . . in a domestic matter invol ving [her] husband.” Aplt. Reply Br. at 24. 11 But she cites only her own decl aration for this proposition, and “conclusory and self-serving af fidavits” are insufficient. Hall v. Bellmon , 935 F.2d 1106, 1111 (10th Cir. 1991). She also contends that Mr. Rubinstein “participated with the Federal Bureau of Investigation in securing and executing a search warrant in an excessive manner.” Aplt. Reply Br . at 24. This contention is similarly insufficient as based only on a “conclusory and self-serving affidavit[]” from her political associate. Hall , 935 F.2d at 1111; see also Aplt. Reply Br. at 24. Second, Ms. Peters argues she was pros ecuted “for actions that she was obligated to take.” Aplt. Re ply Br. at 24. This may be a possible defense to the state charges, but it has nothing to do with he r theory of retaliation for voicing public criticism. Also, “the critic al inquiry is not whether [she ] engaged in some protected activity; rather, it is whethe r the prosecutor sought to lim it [her] ability to conduct constitutionally protected speech by these criminal prosecutions.” Phelps I , 59 F.3d at 1068. Ms. Peters has not shown Mr. Rubinstein sought to do so. Third, Ms. Peters argues Mr. Rubinste in failed to prosecute the Colorado Secretary of State, who a llegedly knew the technology up grade would delete some data from the county’s voting records. Aplt . Reply Br. at 24. Apart from failing to

11 Ms. Peters presents these arguments as support for why she thinks the prosecution was retaliatory, but the result woul d be the same if she argued they went to harassment. Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1617 show that she and the Secretary of State we re similarly situated , Ms. Peters provides no basis to infer that Mr. Rubinstein’s exercise of prosecutorial discretion was retaliatory. See Oyler v. Boles , 368 U.S. 448, 456 (1962) (holding that even where individuals commit the same conduct, “the c onscious exercise of some selectivity in enforcement” is acceptable). Fourth, Ms. Peters argues as suspect the time between when she “formally petitioned the county Board to discontinue it s contract to use a computerized voting system” and the indictment. Aplt. Reply Br. at 24. The timing is not relevant here because Ms. Peters admits th at the state began investiga ting her before she formally petitioned the Board. See, e.g. , Joint App., Vol. III at 546-48. Fifth, Ms. Peters argues Mr . Rubinstein advocated for her bond to be set much higher than what the state c ourt approved and opposed her re quest to travel for a film screening. Aplt. Reply Br. at 24; see also Joint App., Vol. III at 549. She fails to show these recommendations to the court fa ll outside the norms of state prosecution or the needs of the case, let alone show a retaliatory motive. Even if they demonstrate “a history of personal an imosity between [Mr. Rubinstein] and [Ms. Peters, this would] not, by itself, [be] sufficient to show that [the] prosecution was commenced in bad faith.” Phelps I , 59 F.3d at 1067. Sixth, Ms. Peters argues Mr. Rubinstein made a report to the Board of County Commissioners with the sole “focus [of] punish[ing] Ms . Peters for uncovering the deletion of election records.” Aplt. Reply Br. at 25. This st atement is unsupported and conclusory. Mr. Rubinste in’s report is insufficient to establish a retaliatory Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 1718 motive. See Nielander v. Bd. of Cnty. Comm’rs , 582 F.3d 1155, 1165 (10th Cir. 2009) (“A plaintiff’s subj ective beliefs about why th e government took action, without facts to back up those beliefs, are not sufficient” to establish retaliatory motive.). iii. Harassment Ms. Peters also fails to show evid ence of “harassment and an abuse of prosecutorial discretion,” which is “typi cally [shown] throug h the unjustified and oppressive use of mul tiple prosecutions.” Phelps II , 122 F.3d at 889. She argues that multiple prosecutions are not re quired to show harassment. Aplt. Reply Br. at 26-27. But she does not explain why this case otherwise constitutes “harassment and an abuse of prosecutorial discretion.” Phelps II , 122 F.3d at 889.
III. CONCLUSION Younger abstention was appropriate, and Ms . Peters has not met her heavy burden to show the bad faith exception app lies. We affirm. We deny Ms. Peters’s motion to expedite as moot.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 24-1013 Document: 010111068471 Date Filed: 06/21/2024 Page: 18