Ruling: 2 GOP supervisors must stand trial in AZ election interference case

PHOENIX — Two Cochise County supervisors charged with felonies for delaying certification of the 2022 election results must stand trial, a judge ruled.

Maricopa County Superior Court Judge Geoffrey Fish rejected various claims by Tom Crosby and Peggy Judd that there were flaws in the process used by the Attorney General’s Office in securing a grand jury indictment against them. He specifically denied claims the state grand jury had no authority in this matter.

The judge also refused to send the case back to the grand jury amid claims of misconduct by prosecutors, including that they did not present grand jurors with evidence that might explain why Judd and Crosby did what they did.

“Since the function of the grand jury is accusatory, not adjudicatory, the state is under no obligation to present an anticipated defense,’’ Fish wrote.

“Arizona courts will grant a motion for remand to the grand jury only if the prosecutor interferes with the jurors’ inquiry into the evidence of the essential elements required for a particular crime to have been committed,’’ the judge said. But Fish said there is no evidence that occurred here.

Nor was he impressed by Judd’s argument that the state interfered with her Fifth Amendment right not to answer questions in front of the grand jury.

Finally, in his series of new rulings, the judge rejected Crosby and Judd’s claims their decisions to delay certification were absolutely protected by “legislative immunity.’’

Crosby and Judd are charged with conspiring to delay the formal canvass of votes from the election.

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.

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.

A trial is set for August.

The case so far

The facts behind the indictment go back to before the 2022 election when board members discussed doing a hand count of ballots. A judge barred that action and the election took place on Nov. 8.

Despite that, Republicans Crosby and Judd filed suit against county Elections Director Lisa Marra seeking to proceed with the hand count and ordering her to turn over the ballots to the county recorder.

That lawsuit eventually was dismissed.

But the supervisors then didn’t meet the Nov. 28 deadline for all counties to certify their elections. Instead they voted to delay, saying they wanted to hear arguments about whether the voting machines were properly certified. That came over the objections of Ann English, the third supervisor, who said the board had all the information it needed and that certification was a non-discretionary duty.

It took a court order to force the board to act, with Judd and English voting to certify; Crosby did not attend the emergency session.

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.

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In seeking to have the charges thrown out, attorney Dennis Wilenchik, who represents Crosby, called the indictment “vindictive and in retribution’’ because his client and Judd said they had the right to get some questions answered before they certified the results of the 2022 election. He said the indictment was “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,’’ who was seeking to read into the motives of the pair who voted to delay formal certification, Wilenchik said.

Kurt Altman, who represents Judd, told Fish that the pair are facing criminal charges that could send them to prison for up to 2 1/2 years simply because they voted to table a motion to certify, which he said was their right.

“They’ve been indicted in this case on an absolute legislative function,’’ he said.

Wrong, said Fish.

‘Not a discretionary function’

He acknowledged that the pair, in delaying the certification, said they wanted to further investigate whether the results were valid.

“The Cochise County Board of Supervisors may have every right to hold such a hearing and investigate as it sees fit,’’ the judge said. And that would be a legislative function.

“However, the failure to hold a vote and conduct the canvass as a non-discretionary function of the Cochise County Board of Supervisors in order to delay and hold a hearing on the validity of the voting machines, does not amount to a legislative act,’’ Fish wrote. “Canvassing the vote is not a discretionary function.’’

Fish also said none of this should come as a surprise.

“The Cochise County Board of Supervisors was warned by multiple parties, including the county attorney, the local elected officials and state election officials that a failure to canvass the votes by the deadline would not only be a violation of their responsibilities but would violate the law,’’ he wrote.

Judd’s claim about her Fifth Amendment rights being denied comes down to how she was advised of those rights.

Altman argued her decision to invoke the rights came only after she was told by Assistant Attorney General Todd 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 argued. 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. That was compounded by Lawson never informing the jurors they could not draw any conclusions by Judd’s refusal to answer, he said.

But Fish pointed out that Judd invoked her Fifth Amendment rights in refusing to answer all questions beyond her name. That included whether she was a member of the Cochise County Board of Supervisors “and other more mundane questions.’’

“Her invocation was a blanket invocation, as was her right, and therefore the grand jurors were not left with certain questions answered and while others were not,’’ the judge said.

Fish said he could not find any authority requiring prosecutors to tell grand jurors that they cannot consider the fact that someone invoked Fifth Amendment rights.