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Cochise County supervisors indicted in election case

Posted 11/29/23

PHOENIX — The state grand jury has indicted two of the three Cochise County supervisors on charges of conspiracy relating to the 2022 general election.

Documents released Wednesday charge …

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Legal

Cochise County supervisors indicted in election case

Posted

PHOENIX — The state grand jury has indicted two of the three Cochise County supervisors on charges of conspiracy relating to the 2022 general election.

Documents released Wednesday charge that Peggy Judd and Tom Crosby, both Republicans, conspired to delay the formal canvass of votes from the election. The pair had balked after raising questions about the accuracy of the tallies and the machines used to count the ballots.

A separate charge — also a felony — says the pair illegally interfered with an election officer. That is based on the delay in preventing Katie Hobbs, then secretary of state, from completing the statewide canvass.

Both are Class 5 felonies, carrying a presumptive sentence of 1.5 years in state prison. A conviction also would result in a loss of ability to hold elective office.

“The repeated attempts to undermine our democracy are unacceptable,” said Attorney General Mayes, a Democrat, in a prepared statement. “I took an oath to uphold the rule of law, and my office will continue to enforce Arizona’s elections laws and support our election officials as they carry out the duties and responsibilities of their offices.”

As to what took so long for the indictment — this does involve actions taken by the pair a year ago — an aide to Mayes said there have been other priority issues.

Richie Taylor also said neither Crosby nor Judd would speak with investigators voluntarily. He said they had to be subpoenaed to testify, under oath, earlier this month before the state grand jury.

There was no immediate response from either for a request for comment.

But Dennis Wilenchik, who is representing Crosby, called the indictment — and the fact it was released to the media before his client was notified — “politics at play.”

“The indictment is the product of nothing but political partisanship,” he said. “Both charges are without any basis and should be defeated if there is any justice.”

Both are scheduled to be arraigned Dec. 21 before a Maricopa County Superior Court judge.

At the heart of the indictment is the fact Judd and Crosby refused to complete the canvass after the November 2022 election amid what they said where questions about whether the machines used to tabulate the ballots had been properly certified. That refusal came despite repeated assurances from Kori Lorick, who was the state elections director, that the machines met all legal standards.

They finally complied — or, at least Judd did — but only after being ordered to do so by Pima County Superior Court Judge Casey McGinley. He ruled state law is clear that supervisors were required to certify the vote.

Crosby did not show up for the canvass, leaving it to Judd and Ann English, the lone Democrat on the board, to complete the process.

Still, Judd said at the time that her own reading of the election statutes convinced her she was correct in saying the results could not be certified until all questions about their accuracy were answered.
Wilenchik said Wednesday the charges are flawed.

The claim of interfering with an election officer appears to be solely related to the allegation that Crosby and Judd, by initially refusing to certify the results, delayed the ability of Hobbs to perform the state canvass, Wilenchik said.

“The interference never could actually have occurred because Hobbs still received the county canvass prior to Hobbs’ own deadline to conduct the statewide canvass,” Wilenchik said. “So that claim seems kind of nonsensical.”

He also sniffed at the other charge.

“The conspiracy is based on an alleged ‘agreement’ to interfere that is nonexistent, as there was none,’’ Wilenchik said. He said he now wants to see the transcripts of the entire grand jury testimony, saying that could provide a basis to have the indictment dismissed.
English said Wednesday she had no immediate comments on the indictment of her colleagues.

“It is in the hands of the court system,’’ she said. “I am willing to accept their decision.’’

But English told Capitol Media Services last year that a criminal probe — and some sort of sanctions against her errant colleagues — appeared to be appropriate.

“The law was pretty specific about what we were supposed to do,’’ English said, which is why she said she tried all along, as the chair of the board at the time, to get them to vote to certify the results. And English said that was backed up by Brian McIntyre, the county attorney, who told the board members they were legally obligated to complete the canvass — and do it by Nov. 28, 2002.

It took the court order to get Judd to finally join with English on Dec. 1 to certify the results.

“I’m certainly not vindictive,” English said at the time.

“But I just don’t know what the statement needs to be so that this doesn’t become universal in all the small counties, or counties of any size,” she continued. “The lesson we can learn should be, ‘Now, if you do this, what will happen to you.’”

English also said there never really was any question about the accuracy of the results in Cochise County. Nor, English said, was there the kind of controversy about voting procedures on Election Day, as there was in Maricopa County where there were problems with ballot printers and on-site tabulators.

Instead, she said, the decision by the other two board members to balk at certification was political.

“They were trying to make a statement that was fed to them by people from the outside about the equipment statewide and about Maricopa,” English said.

In some ways, the charges are not a surprise.

After the supervisors finally acted, Lorick asked Mark Brnovich, who was the attorney general at the time, to investigate and “take appropriate enforcement actions” against the pair.

Lorick said that Judd complied with the law — but only after being ordered to do so by a judge. She also noted Crosby, who was in court that day, “continued to defy his statutory responsibility as well as the court order” by not even showing up at the board meeting ordered by McGinley to vote to certify.

And Lorick, in her letter to Brnovich — as well as to McIntyre — even laid out for them the criminal laws she believes the two Republicans violated, at least one of which carries a potential prison sentence.

“Supervisors Crosby and Judd knew they had a statutory requirement to canvass the election by Nov. 28, but instead chose to act in violation of the law, putting false election narratives ahead of Cochise County’s voters,” she wrote.

Those “false election narratives,” Lorick said, were that the equipment the county was using to tabulate the ballots had not been properly certified. She said there was no basis for that, having reassured county officials before the canvass that the machines met state and federal standards.

But Lorick said those claims were bogus in the first place.

“Supervisor Judd even publicly acknowledged that the false claims about equipment certification were merely a pretext, saying the claims were ‘the only thing we have to stand on’ to not certify the canvass,” she said.

And Lorick made it clear that she thinks some criminal charges are merited.

“Supervisors Crosby and Judd’s actions not only demonstrate a complete disregard for the law but also jeopardize Arizona’s democracy,” she told the two prosecutors who, like the supervisors, are Republicans.

“Had a court not intervened, the failure of these two supervisors to uphold their duty would have disenfranchised thousands of Cochise County voters,” Lorick said.

All that comes back to the delay.

The county certification occurred on Dec. 1, 2022 — but only after the court order.

Meanwhile, the statewide canvass had been set for Dec. 4, 2022.
Lorick said that state certification would have had to go ahead with only the votes from the other 14 counties had Judd not come around and added her vote to that of English to approve the formal canvass. And if that had occurred, she said, it would have meant the 47,284 ballots cast by Cochise County residents — and their choices — would not have been included in the statewide totals, a move that would have changed the results of elections for state schools chief and Congressional District 6, both won by Republicans.

“This blatant act of defying Arizona’s election laws risks establishing a dangerous precedent that we must discourage,” she told Brnovich and McIntyre. “I ask that you investigate this conduct and take all necessary action to hold these public officers accountable.”

McIntyre said Wednesday he made a decision in February not to pursue the issue at the county level.

He said he sent a letter in February to both Mayes as well as new Secretary of State Adrian Fontes promising “to cooperate in whatever you need.”

“But it would be best if the Attorney General’s Office handled the matter in light of the potential for conflicts,” McIntyre said.