An ongoing criminal case against a Cochise County leader accused of election interference will move forward after a state appeals court threw out a bid to dismiss the charges.
The New Year’s Eve decision means Supervisor Tom Crosby still faces felony counts of conspiracy and interference with an election officer after opting to delay certification of the vote in 2022.
The case is currently set to go to trial in late January — but the appeals fight might not yet be over. Attorney Dennis Wilenchik, who is representing Crosby, said he intends to ask the Arizona Supreme Court to review the issue.
“We believe the decision is in error and not well grounded in law or fact,” he said. “If the court does not accept jurisdiction, then we will have to simply win at trial.”
A spokesperson for the Arizona Attorney General’s Office, which is prosecuting the case, declined to comment.
Crosby and Supervisor Peggy Judd, both Republicans, voted to delay certification after election conspiracists falsely convinced them the county’s vote-tallying machines weren’t properly certified, according to grand jury documents.
The two wanted a meeting to hear evidence about machines called tabulators. By that time, they had ignored repeated legal advice from the board’s attorneys that their actions were illegal.
They were quickly sued, including by then-Secretary of State Katie Hobbs. One lawsuit resulted in a court order to certify the result, which the supervisors ultimately convened to do, though Crosby didn’t show up. They sent their canvass of election results to state officials on Dec. 1 — three days past the Nov. 28 deadline.
Judd pleaded guilty in the case last year, receiving probation for 90 days after admitting to a misdemeanor count of failure or refusal to perform duty by an election officer as part of an agreement with state prosecutors.
Crosby took a different approach, arguing that he should be protected by legislative immunity. That privilege protects lawmakers from some legal moves for actions taken amid legitimate legislative activity and is designed to insulate legislators from punitive efforts by the executive or judicial branches of government.
Maricopa County Judge Geoffrey Fish rejected those arguments in June, and the Arizona Court of Appeals affirmed his decision in their recent ruling. Justice Paul McMurdie wrote that the board’s “refusal to certify the election results” was not “a legislative act” and that supervisors had a nondiscretionary duty to perform the canvass.
We hold that the act of canvassing an election is an administrative responsibility,” McMurdie wrote. “Thus, the Superior Court did not err by concluding that Crosby had no legislative immunity when he refused to deliver the canvass results to the Secretary of State.”
Court says case should continue
Crosby raised issues with whether state prosecutors had taken an overly broad reading of state law and the location of legal proceedings, in addition to his legislative immunity argument.
His attorneys have repeatedly characterized the case as politically motivated and vindictive of supervisors asking questions amid the certification of the vote. The case has also drawn criticism from some Republican leaders of other counties.
Wilenchik repeated those claims on Friday, telling The Arizona Republic that the case was “simply the result of an out-of-control prosecutor… once again wasting taxpayer dollars seeking political retribution.”
But prosecutors have stood by their indictment of Crosby and Judd. Democratic Attorney General Kris Mayes made clear while announcing the charges that she wouldn’t tolerate “attempts to undermine our democracy,” and the state has sought in court to cast actions by the two supervisors as part of a larger criminal conspiracy to create electoral chaos.
McMurdie said in the court’s ruling that Crosby’s actions “may amount to interference.” The issue should be “determined as a factual matter at trial.”
“Whether his actions rose to the level of interference is a question of fact for the jury to resolve at trial,” he said. “The jury is the finder of fact and will weigh the evidence.”
He also affirmed the location of the proceedings. The state charged Crosby and Judd in Maricopa County, but their attorneys had questioned whether the case should be remanded to Cochise County.
Prosecutors said the state grand jury set the venue, determining the case could be charged in either Maricopa or Cochise counties. The state elected to bring the trial to Maricopa County, prosecutors said.
“The board’s conduct occurred in two counties: In Cochise County, where the board should have certified and sent the election results, and in Maricopa County, where the Secretary of State should have received the board’s certified election results,” McMurdie wrote. “Thus, the state has met its burden of proving by a preponderance of the evidence that venue is proper in Maricopa County.”
From the azcentral article here