Reverberations from the 2022 election continue as the Arizona Appeals Court denies Cochise County Supervisor Tom Crosby’s appeal of AG Kris Mayes’ indictment on election interference and conspiracy charges. Cosby, along with fellow Republican supervisor Peggy Judd, refused to certify the election. Judd earlier pled guilty to the misdemeanor charge and received a $500 fine and six months unsupervised probation for her involvement.

The court ruled unanimously that while duly elected officials, including supervisors, do enjoy some degree of “legislative immunity” for votes that make, the duty to certify elections was not protected as it is deemed “administrative,” which disallows discretionary decisions. As a result, Crosby cannot use an immunity defense to avoid prosecution. The court also rejected Crosby’s claim that his failure to certify did not interfere with Secretary of State Adrican Fontes’ duties to finalize the election.

Crosby’s case is part of a larger action by Arizona’s Attorney General Kris Mayes to discourage others from “interfering” with election certification. However, Cosby’s attorney, Dennis Wilenchik, indicated he will appeal the ruling directly to the Arizona Supreme Court.

The charges stem from an attempt by Crosby and Judd to force a hand count of ballots due to alleged errors in prior elections. However, the hand count was barred by judicial action, and the election scheduled for Nov. 8, 2022, continued forward. Despite the ruling disallowing the hand count, the two supervisors filed suit against county Elections Director Lisa Marra to force her to turn over the ballots to allow for a hand count. The court dismissed the suit, but the supervisors failed to certify by the Nov. 26, 2022 deadline.

Expressing concerns over voting machine accuracy, Crosby and Judd voted to delay certification over English’s objections. English claimed that certifying the election was not subject to supervisor discretion, and the law mandated that Crosby and Judd certify. Ultimately, a court ordered the supervisor to certify the election in an emergency session attended only by Judd and English. AG Mayes subsequently indicted Crosby in 2023 through a state grand jury.

Wilenchik called the indictment “vindictive and in retribution,” due to Crosby and Judd’s Republican political leanings and that the indictment relied 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,” Wilenchik asserted.

Maricopa County Superior Court Judge Geoffrey Fish refused to overturn the indictment, which in turn resulted in the appeal.

The appeals court added that neither common law nor the Arizona Constitution allows legislative immunity for administrative acts. It stated that “no member of the legislature shall be liable in any civil or criminal prosecution for words spoken in debate.” The court stated that the rules also extended to other legislative bodies, like the board of supervisors.

The court added that “Crosby’s duty to canvass the election (under state law) was not discretionary,” citing the law that states supervisors “shall meet and canvass the election not less than six days nor more than 20 days following the election.” The only exception to this rule is when results are missing, something that did not occur.

Wilenchik argued that Crosby simply wanted “some answers for his constituency.” The court disagreed.

In the unanimous decision, Judge Paul McMurdie wrote, “Crosby himself admitted in his grand jury testimony that he was unaware of any issues with the election results submitted by the Cochise County Elections Department that would justify postponement.”

Wilenchik disagreed with the court’s interpretation. “So there was no interference,” he said. “And the act of continuing (the vote to another day) was a legislative act fully immune which this court declined to address and, to the extent it did, it did so erroneously.”

The court disagreed. “Canvassing the election results involves adding write-in and early votes to the results from the vote tabulating equipment,” wrote McMurdie. “Such a mathematical undertaking does not require the board to make multiple discretionary decisions or balance goals. Instead, the board had to follow the clear instructions outlined in the statute and the court’s order, which compelled it to complete the canvass and gave no alternate action.”

Mayes’ intent appears to send a message against future attempts to prevent certification of elections, a position she has made clearly and publicly. It remains unclear whether the AZ Supreme Court will agree.