Cochise prosecutor weighs charges over failure to certify election

Cochise County’s top prosecutor said he may bring charges against members of the Board of Supervisors who have refused to certify the results of the general election.

Republican County Attorney Brian McIntyre told Capitol Media Services he’s looking into what crimes may have been committed.

He said he was doing so before former state Attorney General Terry Goddard, a Democrat, and former Maricopa County Attorney Richard Romley, a Republican, wrote to him, urging him to act. McIntyre gave no indication how quickly he will make a decision.

Goddard and Romley sent an identical message to Arizona Attorney General Mark Brnovich, who also would have the power to bring charges against the supervisors.

“We received the letter and decline to comment at this time,’’ said Brittni Thomason, spokeswoman for the Republican attorney general.

This comes as a judge will hear arguments Thursday on whether he should order the three-member Cochise County board — or at least the two members who voted against meeting Monday’s deadline to formally canvass the results — to comply. If he orders compliance, failure of Republican Supervisors Peggy Judd and Tom Crosby to obey the court order could result in a contempt citation.

The two former prosecutors in their message made it clear they believe something more is appropriate when, as they contend, Judd and Crosby deliberately ignored the requirement in Arizona law that counties certify their election results no later than 20 days after the election. That date this year was Monday, Nov. 28.

The deadline is set in law to pave the way for the state canvass, which is supposed to occur on the fourth Monday following the election, which would be next Monday, Dec. 5.

There is a bit of wiggle room in that date, with the Election Code saying it can be postponed “day to day’’ if any county canvass is missing — but with a final deadline of Dec. 8.

“We believe deeply that the rule of law dictates that public officials be held accountable when they refuse to comply with their legal obligations — all the more so when those officials’ actions threaten to undo the proper administration of elections, disenfranchise thousands of voters, and potentially even alter the results of some races,’’ wrote Goddard and Romley.

Those last points refer to the threat by state Elections Director Kori Lorick to go ahead with the state canvass — but without the 47,284 votes cast by Cochise County residents. Without those, Republican Tom Horne would lose the race for state schools chief to Democrat Kathy Hoffman and Democrat Kirsten Engel would have more votes than Republican Juan Ciscomani for the Congressional District 6 seat.

In refusing to certify the vote Monday, the two Republican supervisors said they had questions about whether the machines used to tally the paper ballots were properly certified.

That came after Lorick wrote to the board a week earlier that the claims “are derived from baseless conspiracies about Arizona’s equipment certification process.’’ She detailed how the machines “remain in compliance with state and federal requirements.’’

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Despite that, Crosby said Monday he wants more information both from the office of Democratic Secretary of State Katie Hobbs and others. Judd went along although Crosby offered no evidence the equipment did not meet legal requirements.

Only Democrat Ann English, who chairs the board, refused to vote for a delay.

“Arizona law provides no applicable legal grounds for county supervisors to refuse to comply with their legal duty to certify results by the statutory deadline,’’ the two former prosecutors wrote.

As far as the excuse offered, Goddard and Romley called them “false and thoroughly discredited claims.’’

They said even if the claims were true “that would still not provide a legal justification for Supervisors Crosby and Judd to ignore their non-discretionary duty to certify the election results.’’

Goddard and Romley even laid out for McIntyre and Brnovich what charges they could bring.

The most serious is a section of the law that says any person who knowingly refuses to perform a duty required in the Election Code is guilty of a Class 6 felony. That carries a presumptive sentence of a year in state prison.

A separate statute says any public officer who knowingly fails to perform a duty in connection with elections “in the manner prescribed by law’’ is guilty of a Class 3 misdemeanor. Violators are subject to up to 30 days in jail, though these cases often wind up instead with a fine, which can be up to $500.

There was no immediate response from Crosby or Judd to messages left with their offices and on their cell phones.

English, however, commented on the chaos that her colleagues’ actions created.

“I feel like I am in the middle of a tornado that keeps staying in place and I cannot get out safely,’’ she told Capitol Media Services. “I have no control of the tornado, only my actions.’’

“We will still have a county to govern and constituents needing our services,’’ English said. “I pray we will be up to the task.’’