Fighting interference charges, Arizona county official points to successful election

PHOENIX (CN) — Accused of conspiring to interfere with the 2022 general elections, an Arizona county supervisor argued for the second time in court on Friday that his decision to delay the canvass of county results didn’t violate state law because the results were still certified before a state deadline.

That argument misses a key point: Crosby’s 2023 indictment accuses him of missing a county-level election deadline, not the state-level one.

The indictment accused both him and fellow Cochise County Supervisor Peggy Judd of interference with an election officer and conspiracy. Though Judd pleaded guilty in October, Crosby maintains his innocence.

As the Republican majority on rural Cochise County’s three-supervisor board, Crosby and Judd voted before and on Nov. 28, 2022 — the legal deadline to canvass county election results — to delay the canvass until Dec. 2, three days before the secretary of state’s deadline to certify statewide results. Although Crosby had no reason to believe the election was rigged, he says he did so to provide an opportunity for voters to raise election integrity concerns.

Because the secretary of state was able to certify results by the legal deadline, Crosby says his intent was clearly not to interfere with an election officer.

“Crosby could admit to everything in the indictment, and it still would not prove conspiracy to interfere,” defense attorney Brian Gifford with the Phoenix-based firm Wilenchik and Bartness said in a Phoenix courtroom on Friday morning.

Conspiring to delay the canvass doesn’t inherently interfere with the larger election process, Gifford argued. He accused the state of phrasing the indictment in such a way as to trick a grand jury into going along with its flawed legal theory. Nonetheless, Judge Geoffrey Fish has already dismissed Crosby’s motion to remand the indictment to a new grand jury.

The canvassing drama began even before the November 2022 elections, fueled by widespread yet unproven theories of mass voter fraud. Those theories in turn stemmed from former President Donald Trump’s 2020 claims about a stolen election.

To appease concerned constituents, Crosby unsuccessfully tried to schedule a meeting between the secretary of state’s office. Awaiting a response, he voted with Judd to delay the canvass.

The state still hadn’t agreed to the meeting by the Nov. 28 deadline, when Democratic supervisor Anne English tried to force a vote.

Crosby says he had no choice but to delay again because the agenda item wasn’t properly labeled as a vote to canvass. If they had voted, he argues the board would have broken open-meeting laws.

The court has already determined that Crosby’s situation meets none of the exceptions to the county-level requirement to canvass by Nov. 28.

And yet, Gifford argued that the mere existence of so many exceptions prevents the state from proving mens rea — that is, knowing intent to violate the law.

State prosecutor Todd Lawson said Gifford is more than welcome to cross-examine witnesses about his client’s intent.

“These are arguments for trial,” he told Fish. “They have to make these arguments for a jury.”

Crosby’s argument, Lawson said, is that because the election was ultimately successful, his intent to interfere doesn’t matter.

“The bank robber walks out of the bank and drips the money." Lawson said, giving a hypothetical. “He still intended to rob the bank. He just didn’t get far.”

Gifford also argues that Crosby’s statements — made as a public official at a public meeting — are subject to legislative privilege and immunity and therefore can’t be used as evidence of conspiracy or intent to interfere.

Because no evidence outside of public meetings exists, he continued, prosecutors have no evidence they can use. But Fish pushed back, noting that the court had already determined that not all of Crosby’s actions were privileged.

Although both Crosby and Judd are named in the indictment, the indictment doesn’t make clear that the two conspired together.

Instead, it merely accuses each of conspiring “with one or more persons." As such, Gifford argued, prosecutors have failed to sufficiently state a claim.

Lawson said prosecutors had done their due diligence. He accused Gifford of “stick[ing] his head in the sand.”

If Fish denies this motion to dismiss, a trial date will be set later this year.

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