Cochise, only Arizona county not to certify election returns, gets sued

·7 min read

A lawsuit filed hours after Cochise County officials balked − again − at certifying election results seeks a court order to compel the Board of Supervisors to approve the Nov. 8 tallies.

The lawsuit was filed on behalf of the Arizona Alliance of Retired Americans and Cochise County resident Stephani Stephenson, delivering on a promise by attorney Marc Elias that "the only presentation Cochise County will see is in a courtroom."

The lawsuit, filed in Cochise County Superior Court, asks for the order by Thursday so the statewide canvass scheduled for Dec. 5 can proceed with results from all Arizona voters.

It may not be the only litigation involving Cochise County. Secretary of State Katie Hobbs' office has said it would sue to get the same court order, arguing the two county supervisors who have twice delayed a certification vote broke state law.

As of early evening Monday, Hobbs' office had not made any court filings.

Deadline drama for a 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 lawsuit names Cochise supervisors Tom Crosby, Ann English and Peggy Judd in their official capacities. 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.

Board chairwoman 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.

The Cochise County Board of Supervisors has voted to delay certification of Arizona's Nov. 8 election results on Nov. 28, 2022.
The Cochise County Board of Supervisors has voted to delay certification of Arizona's Nov. 8 election results on Nov. 28, 2022.

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 county's 47,000 voters in the Nov. 8 election.

It is possible that, barring judicial intervention, Cochise County's voters will not have their ballots 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.

Cochise County:Board of Supervisors votes to delay certification of election results

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.

Rejected:Maricopa County explains why it rejected Arizona lawmaker's subpoena on election problems

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.

This article originally appeared on Arizona Republic: Cochise County gets sued after failure to certify election