PHOENIX (CN) — Two Arizona county supervisors accused of interfering with the certification of the 2022 general election told a state judge Friday afternoon that the “rogue prosecution” against them should be dismissed as a matter of law.
Tom Crosby and Peggy Judd, two of three members of a board of supervisors who govern Cochise County in southeastern Arizona, were indicted in November 2023 on accusations of conspiracy and interference with an election officer for voting to delay the canvassing of the county’s election results in 2022.
Responding to concerns from constituents over unproven claims of election fraud — peddled mostly by Republican politicians who say the last two general elections were stolen from Republican candidates — Crosby and Judd, both Republicans, voted twice to delay the final certification to subsequent board meetings to gather more evidence.
The canvass wasn’t completed until Dec. 1, 2022 — three days after the legal requirement.
State prosecutor Todd Lawson told Maricopa County Superior Judge Geoffrey Fish on Friday that the supervisors’ delay required the secretary of state to spend public monies to both send representatives to the county to answer questions about baseless election fraud claims, and pursue a mandamus order from the state court of appeals to order the county to certify the results. That result more than constituted interference with then-Secretary of State Katie Hobbs’ duty to certify the results statewide by her own deadline of Dec. 5.
But despite the supervisors’ delay, Hobbs ultimately successfully certified the results by the deadline.
“That duty was not interfered with at all,” Crosby’s attorney Dennis Wilenchik told Fish. “Everything went smoothly and the way it was supposed to go on Dec. 5.”
Lawson countered that nobody in the secretary of state’s office knew whether things would work out at the time, which increased “confusion” and “chaos,” which interfered with Hobbs’ duties.
The defendants say that the second vote to delay was a procedural requirement because the vote to certify the results was mislabeled on the agenda. Because the public wasn’t properly notified that the certification would occur, the defendants had no choice but to delay the vote for a second time, Wilenchik said.
He said delaying the canvass to hear answers to legitimate questions was completely reasonable.
“It’s just silly,” he said. “That wasn’t any violation of the statute because somebody from the secretary of state’s office had to come down and explain to a board of supervisors, God forbid, answers to questions they had.”
Lawson said the defendants mischaracterize their indictment.
“This is a larger conspiracy than just the one vote,” he said. Lawson said the delay was intended to create “constitutional chaos,” by bringing the votes into question, and potentially swing the pendulum of political power in Arizona.
“What chaos?” Wilenchik asked, pointing again to the fact that the results were certified in time and no lasting issues remained.
He also argued that Crosby and Judd enjoy legislative immunity from any interference accusations because the votes to delay were actions within their governing authority. Lawson disagreed. He said the choosing not to canvass election results can’t be protected by legislative privilege because canvassing is simply a ministerial duty that supervisors don’t have the power to refuse.
Even if canvassing did fall under legislative immunity, Lawson said, that doesn’t mean public officials can commit crimes under the guise of legislative action.
Judd’s motion to dismiss questions whether the state grand jury that indicted the supervisors had authority to do so. Kurt Altman, representing Judd, told the judge that it didn’t. He said the state grant jury only has limited indicting authority over under a state statute governing what the state grand jury can investigate. He added that the charges under conspiracy and interference with a election officer statutes are unrelated.
The only way for the grand jury to indict on those charges, he said, is with a written approval of the attorney general.
Lawson said Altman missed certain elements. The grand jury has full authority to indict in election cases and in cases involving corruption of those compensated with public funds. Both elements apply in this case, he said.
Altman countered that corruption can’t apply, because the defendants had nothing to gain, monetary or otherwise, by delaying the results.
The defendants also argued that the case shouldn’t be tried in Maricopa County because the accused crimes occurred in Cochise County. They said the case should be remanded to the Cochise County courts.
But because the result of the accused crime — the apparent interference with the secretary of state’s duties — occurred in Maricopa County, Lawson said Maricopa County is an appropriate venue.
Wilenchik said he intends to raise the issue to the state Supreme Court if the case isn’t dismissed at the trial court level.
It’s unclear when Fish will issue a ruling. A pretrial conference is set for May 9.
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