Cochise County sued twice after not certifying election results
Two lawsuits filed hours after Cochise County officials balked — again — at certifying election results seek a court order to compel the Board of Supervisors to approve the Nov. 8 tallies.
The Arizona Alliance of Retired Americans and Cochise County resident Stephani Stephenson filed the first complaint late Monday, followed by a lawsuit from Secretary of State Katie Hobbs.
Both lawsuits, filed in Cochise County Superior Court, ask the court to order the three-member board to certify election results, as required by law. And they ask for action by Thursday so the statewide canvass scheduled for Dec. 5 can proceed with results from all Arizona voters.
Ann English, chairperson of the Cochise board, learned of the litigation from a reporter but said the suits were predictable. The board's attorneys had warned they needed to certify by Monday, but on a 2-1 vote, the board sought a delay. English voted no.
Deadline drama instead of the normally routine process
The 2-1 vote by the Cochise County Board of Supervisors kicked off a day of election drama never before seen on the formerly perfunctory duty of county certification of election results and underscored the depths to which election denialism has taken hold in parts of Arizona.
The actions played out as the 15 counties faced a Monday deadline for certifying election results. By day's end, Cochise in southeastern Arizona stood alone as the only county that did not follow the law that requires certification.
Maricopa County supervisors voted unanimously to certify, but their four-hour-long meeting was punctuated by angry testimony to nullify the results and by taunts of "traitor."
'Safe, secure and accurate':Maricopa County certifies election after rowdy crowd objects
In the northwestern corner of the state, the Mohave Board of Supervisors hesitated to certify in a morning meeting, despite stern advice from the county attorney that they would be breaking the law and disenfranchising Mohave voters. Hours later, they reluctantly approved the election results on a 4-0 vote.
The other 12 counties approved the normally routine certification, with little evidence of the doubts and denial that surrounded Monday's actions.
'Baseless claims' cited
The Arizona Alliance of Retired Americans lawsuit names Cochise supervisors English, Tom Crosby and Peggy Judd in their official capacities. The secretary of state's lawsuit names the three supervisors and Cochise County.
Crosby and Judd voted Monday morning to delay a vote until they could convene a special meeting Friday to air theories that the machines used to tabulate Cochise County voters were certified by an unaccredited lab.
English, a Democrat, voted no, saying her colleagues had more than enough information to answer their concerns. Besides, she noted, the board had a duty to certify election results by Monday and voting "no" was not an option.
”I’m not surprised," she said of the litigation. "We’ve been told, people will sue you if you don’t follow the law.”
Crosby and Judd did not immediately return calls seeking comment.
Attorney Aria Branch with the Washington D.C.-based Elias Law Group called the board's vote "just the latest chapter in a baseless effort to call into question the results of the 2022 general election."
In a statement, Branch said the board "refused to perform its legal duty based on nothing more than vague and unsubstantiated allegations that the county’s electronic voting machines could not be trusted." Their actions threaten to nullify the votes of the more than 47,000 county voters who cast ballots in the Nov. 8 election.
It is possible that, barring judicial intervention, Cochise County's ballots will not be counted in the Dec. 5 statewide canvass. That would flip the results of the 6th Congressional District race to a Democrat, further narrowing the GOP's margin in the next Congress.
Without the votes from ruby-red Cochise County, Rep.-elect Juan Ciscomani, a Republican, could lose to Democrat Kirsten Engel. Neither candidate returned requests for interviews.
Cochise was not the only county where there were doubts as the certification deadline approached.
Mohave resident asks for election do-over
In Mohave County, resident David Aikens prodded the supervisors to push for a do-over of the election.
"Can you not certify, period, all these counties and make everything be redone, or how does that work?” Aikens asked. “Supposin’ you didn’t certify them? They can’t push all these votes out. They can’t throw them out, can they?”
Deputy County Attorney Jeff Haws explained that votes from the county would not be included in the statewide totals if the supervisors did not act Monday.
“That’s disenfranchising the whole county when you do that,” Aikens replied.
After his comments, Haws found himself explaining the same concept repeatedly to the supervisors, who toyed with delaying a vote, as Cochise County did.
“If the Board of Supervisors were to attempt to come back at a later date, prior to Dec. 5, that canvass would be invalid because the statute makes today the last day to canvass the elections,” Haws said.
An invalid canvass also would complicate a lawsuit filed by GOP candidate Abe Hamedeh, whose narrow loss in the Attorney General race is subject to an automatic recount.
“If no canvass is done, there is nothing to challenge,” Haws said.
Supervisor Ron Gould complained he felt bullied into a "yes" vote.
"I vote aye under duress,” Gould said. “I found out today that I have no choice but to vote aye or I’ll be arrested and charged with a felony. I don’t think that’s what our founders had in mind when they used the democratic process to elect our leaders, our form of self-governance. I find that very disheartening.”
Cochise: Another presentation planned
In a brief meeting in Bisbee, the Cochise supervisors voted for the second time in 10 days to delay a vote, something they also did during a nearly three-hour meeting on Nov. 18.
Supervisor Crosby, a Republican, called for a special meeting Friday at which the Secretary of State's Office, as well as a slate of six men who maintain election procedures were not followed, will give testimony leading up to a vote.
Several of those men, none of whom live in Cochise County, earlier this month aired their theories about Arizona counties relying on tabulation machines that had been certified by unaccredited laboratories. In response, the Secretary of State's Office sent documents and proof of certification to the supervisors.
Judd, who last week said she would vote to certify, wavered this week and voted to delay a decision, saying her earlier confidence that the county's tabulation machines were in proper order was shaken after reviewing documents provided by the Secretary of State's Office.
Supervisor needs more evidence
Judd has vacillated on the board's various attempts to cast doubt about the election, including an attempt to hand count every ballot cast earlier this month. That was an effort she supported so strongly that several weeks ago she accepted she might have to go to jail for her beliefs.
Judd has denied the results of the 2020 election and was present at the U.S. Capitol when rioters stormed the building to disrupt the counting of presidential electors' votes.
Board chairwoman English said her GOP colleagues were fixated on problems that don't exist in Cochise County, where the Republican candidates on the Nov. 8 ballots stand to lose the most. In addition, local races, from county Superior Court judges to school board, would not be certified, unless the courts intervene.
“I feel that you both have the information necessary in order to make this decision that is non-discretionary on our part to certify the election for Cochise County, no matter how you feel about what happened in Maricopa or Pima or Mohave or Apache," English said.
Elected officials 'not above the law'
The meeting is scheduled for Friday, but election officials say even if the supervisors were to decide then to certify, they can't wind back the clock. Their lack of action on Monday means they broke a state law that states any public official who refuses to carry out election law, or who knowingly violates law related to elections, is subject to a Class 6 felony.
Such a felony is subject to fines and jail time that could range from four months to two years in prison and carry fines. However, there is prosecutorial discretion, elections attorney Jim Barton said, which could result in a smaller penalty, if the supervisors are found guilty.
“If you’re an elected official, you’re not above the law,” Barton said.