Indictments 'vindictive' in Arizona election case, 2 GOP supervisors say

PHOENIX — Lawyers for two Republican Cochise County supervisors facing criminal charges lashed out in court Friday at Democratic Attorney General Kris Mayes’ office for prosecuting them.

Dennis Wilenchik, who represents Supervisor Tom Crosby, called the indictments by a state grand jury “vindictive and in retribution’’ for Crosby and Supervisor Peggy Judd wanting questions answered before they certified results of the 2022 election.

State law requires that supervisors in each county do a formal “canvass’’ of votes within 20 days after the election but Crosby and Judd delayed it. That led to their indictments last year on felony charges of conspiring to delay the certification and of illegally interfering with an election officer.

A Maricopa County judge heard three hours of arguments Friday about whether laws were really broken, whether the grand jury had jurisdiction and whether its proceeding was conducted fairly. Crosby and Judd, who have pleaded not guilty, are asking the judge, Geoffrey Fish, to dismiss the charges or send the case back to the grand jury.

Wilenchik argued the indictments were “based on a broad reading of the statute that was never written that way or intended that way.’’

“What we have here is a rogue prosecutor and a rogue prosecution’’ that sought to read into the motives of the pair who voted to delay formal certification, he said.

Kurt Altman, representing Judd, told a Maricopa County judge that the pair are facing charges that could send them to prison for up to 2½ years simply because they voted to table a motion to certify, which he said was their right to do.

“They’ve been indicted in this case on an absolute legislative function,’’ for which lawmakers, including supervisors, are supposed to be immune from prosecution, he said.

But Assistant Attorney General Todd Lawson said the case involves more than the vote by Crosby and Judd — with Democratic Supervisor Ann English dissenting — to delay the certification on Nov. 30, 2022.

“This is an overall conspiracy, a larger plan,’’ Lawson argued, “to create chaos” and “obstruct the election.”

He said it included an effort to force a hand count of all the ballots and the filing of a lawsuit against the county’s elections director, Lisa Marra.

That all started in October, before the election, Lawson said.

He said efforts by defense attorneys to say this is just about the vote itself, which may or may not be covered by legislative immunity, “ignores the totality of the entire conspiracy.’’

Authority at issue

Regardless of the often-heated rhetoric, the question of whether the supervisors will have to go on trial next month could depend on a simple question: Do they, as elected officials, have the authority to examine and question election results? Or do they have to accept them without question?

How Judge Fish answers that question could have a statewide impact, determining for the future how much power county supervisors have in such situations.

A few facts are clear. Under state law, the canvassing deadline for county supervisors in 2022 was Nov. 28.

But in Cochise County the vote on the canvass got postponed until Nov. 30 because Crosby in particular wanted to question Katie Hobbs, who was Arizona’s secretary of state at the time, as well as election doubters about whether the machines used to tally votes were properly certified.

However, the meeting notice that day included only the canvass and not the examination the Republicans wanted. So, the items were delayed again and put on the Dec. 2 agenda.

Unwilling to wait any longer, however, Hobbs filed suit and got a judge to order the board to act. It did so on Dec. 1, with Judd joining English; Crosby did not show up.

That led to the charge of illegal interference with an election officer. It is based on what the state says was an attempt to prevent Hobbs from completing the statewide canvass which, also under state law, had to be done by Dec. 5.

‘Rubber stamp’ only?

Prosecutor Lawson contends a canvass is strictly a “ministerial function.’’ In essence, that means the supervisors review the vote tallies and, unless there are missing votes from a precinct, declare the results official and forward them to the secretary of state. Failing to perform the canvass within the time rules was a crime, he said.

Wilenchik said that makes no legal or practical sense.

He said there’s a reason the law requires a formal vote versus just having county election officials forward the results to the secretary of state. And that is to ensure the reported results are accurate, he said.

“How could someone, particularly an elected official voting their conscience, who had judicial immunity for doing so, be charged with knowing that, somehow, their vote to continue to a date that was a few days away, to get answers to questions that they legitimately had about the election and then canvass, how could that be, first of all, known to be a ‘ministerial act’ as they (prosecutors) claim?’’ Wilenchik asked.

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“If that’s the case, there’s no point to it at all,’’ he said of the canvass. “Why would the Legislature even have a county do so if all the attorney general’s position is that they really are just a rubber stamp and there’s no point to them even talking about anything or considering anything?’’

Lawson dismissed the suggestion there was some legitimate reason for the delay.

He pointed out that Kori Lorick, who was the state elections director, already had answered questions from the Cochise County supervisors, both in person and through letters, and addressed any concerns “in a very detailed manner.’’

“The delay here was so that Mr. Crosby could get a kangaroo court trial of election deniers’’ on one side and Hobbs on the other, “to answer the concerns of these group of individuals who had already expressed those concerns repeatedly at previous meetings,” Lawson claimed.

But there was no basis for that, he said. “They had no issue with the way the votes were counted, they had no issue with the numbers they had received from the county elections department,’’ he said. The goal was to “create chaos’’ with the election returns, Lawson said.

At least part of that would have occurred had the county not gotten the result to Hobbs before Dec. 5.

That would have forced her to certify the statewide results, but without the 47,284 votes cast by Cochise County residents.

Without those votes, Republican Tom Horne would have lost the race for state schools chief to Democrat Kathy Hoffman, and Kristen Engle, the Democratic candidate for the Congressional District 6 seat, would have had more votes than Republican Juan Ciscomani. With the Cochise County votes factored in, Horne and Ciscomani both won.

Democrats Mayes and Hobbs also both won their races for attorney general and governor, respectively, in that election.

Debate over immunity

There’s another angle to the question of whether a canvass is a legislative act.

In general, lawmakers — including supervisors — are immune from prosecution for votes they take. They also cannot be questioned in court about their motives.

Lawson, however, told the judge even that isn’t absolute. Consider, he said, a case where an elected official was bribed to vote a certain way.

“They could not turn around and say, ‘I’m immune because it was a vote,’ ‘’ he said. “It produces an absurd result.’’

The case against Crosby and Judd fits that category, Lawson said.

“This is a criminal conspiracy to obstruct the election so that the secretary of state is unable to certify so that chaos will be created and no one will know what will happen,’’ he said.

Wilenchik countered that, when all was said and done, the supervisors did not interfere with Hobbs’ ability to certify the results on Dec. 5. But Lawson said that was only because the board had to be sued to get a court order to act.

Fifth Amendment invoked

Fish has to consider other issues of whether the process used to indict the pair was legal.

For example, Judd chose to invoke her Fifth Amendment right to refuse to answer questions in front of the grand jury.

But her attorney, Altman, pointed out that came after she was told by prosecutor Lawson — in front of the grand jurors — that she had a constitutional right to refuse to answer any questions “if a truthful answer to the question would tend to incriminate you.’’

“That’s not entirely accurate,’’ Altman told the judge. He said the Fifth Amendment permitted Judd to refuse to answer any question, regardless of whether it might be incriminating.

“So that advisement left the grand jury with an impression that if she takes the Fifth Amendment, that means if she testified truthfully, she would have incriminated herself,’’ Altman said.

He said that was compounded by Lawson never informing the grand jurors they could not draw any conclusions from Judd’s refusal to answer.

The judge said gave no date by which he will rule on the issues.