Attorneys for two Cochise County supervisors facing criminal charges lashed out Friday in a hearing at Attorney General Kris Mayes for indicting them in the first place.
Dennis Wilenchik who represents Tom Crosby called the move "vindictive and in retribution'' because his client and Peggy Judd, both Republicans, said they had the right to get some questions answered before they certified the results of the 2022 election. He said the indictment was "based 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 said, who was seeking to read into the motives of the pair who voted to delay formal certification.
Kurt Altman, who represents Judd, told Maricopa County Superior Court Judge Geoffrey Fish that the pair are facing criminal charges that could send them to prison for up to 2 1/2 years simply because they voted to table a motion to delay certification. That he said was their right.
"They've been indicted in this case on an absolute legislative function,'' he said.
But Assistant Attorney General Todd Lawson said this involves more than the vote by the pair - with Democrat Ann English dissenting - to delay the certification on Nov. 30, 2022.
"This is an overall conspiracy, a larger plan,'' he said, including an effort to force a hand count of all the ballots and even a lawsuit filed against Lisa Marra who was the county's elections director.
That all started in October, Lawson said in the hearing to determine whether to throw out the case or send it back to the grand jury. He said efforts by defense attorneys to say this is just about the vote itself, which may or may not be protected by legislative immunity, "ignores the totality of the entire conspiracy.''
But regardless of the often-overheated rhetoric, the question of whether the supervisors will have to go on trial next month could depend on a simple question: Do they, as elected officials, have authority to examine and question the results? Or do they just have to accept them without question?
And how Fish answers that question could have statewide impact, determining for the future how much power county supervisors have to raise what they believe are legitimate issues that could affect the accuracy of the results.
A few facts are clear.
Arizona law requires that supervisors in each county do a formal "canvass'' of votes within 20 days after the election. That deadline in 2022 was Nov. 28.
That vote in Cochise County got postponed until Nov. 30 because Crosby wanted to question both Katie Hobbs, who was the secretary of state at the time, and election doubters about whether the machines used to tally votes had been properly certified.
But the meeting notice that day included only the canvass and not the examination the Republicans wanted. So, the items were put on the Dec. 2 agenda.
Unwilling to wait any longer, however, Hobbs filed suit and got a judge to order the board to act. It did so on Dec. 1, with Judd joining Democrat Ann English; Crosby did not show up.
That led to an indictment last year on a charge of illegal interference with an election officer. That is based on what the state says was an attempt to prevent Hobbs from completing the statewide canvass, which had to be done by Dec. 5.
A separate count charges the pair for conspiring to delay the formal vote.
Friday's three-hour hearing featured arguments about not just what laws may or may not have been broken but also whether the state grand jury had jurisdiction and whether that grand jury proceeding was conducted fairly.
But what it all may come down to is whether county supervisors really have any authority to scrutinize the numbers they get from elections officials or whether, as Wilenchik put it, they are merely a "rubber stamp.''
Lawson contends that a canvass is strictly a "ministerial function.'' In essence, that means the supervisors review the vote tallies and, unless there are missing votes from a precinct, declare the results official and forward them to the Secretary of State. That, he said, made the failure to perform the canvass within the time guidelines a crime.
Wilenchik said that makes no legal or practical sense.
He said there's a reason the law requires a formal vote versus just having county election officials forward the results to the Secretary of State. And that, said Wilenchik, is to ensure that the reported results are accurate.
In this case, Crosby and Judd said questions had been raised about whether the machines used to tally the votes had been properly certified. Wilenchik said that's why they delayed the certification to get answers.
"How could someone, particularly an elected official voting their conscience, who had judicial immunity for doing so, be charged with knowing that, somehow, their vote to continue to a date that was a few days away, to get answers to questions that they legitimately had about the election and then canvass, how could that be, first of all, known to be a 'ministerial act' as they claim?'' he asked.
"If that's the case, there's no point to it at all,'' Wilenchik said of the canvass. "Why would the legislature even have a county do so if all the attorney general's position is that they really are just a rubber stamp and there's no point to them even talking about anything or considering anything.''
Lawson sniffed at the idea there was some legitimate reason for the delay.
He pointed out that Kori Lorick, who was the state elections director, already had answered questions from the board, both in person and through letters and addressed any concerns "in a very detailed manner.''
"The delay here was so that Mr. Crosby could get a kangaroo court trial of election deniers'' on one side and Hobbs on the other, "to answer the concerns of these group of individuals who had already expressed those concerns repeatedly at previous meetings.''
But Lawson said there was no basis for that.
"They had no issue with the way the votes were counted, they had no issue with the numbers they had received from the county elections department,'' he said. The goal, Lawson said, was to "create chaos'' with the election returns.
At least part of that would have occurred had the county not gotten the result to Hobbs before Dec. 5.
That would have forced her to certify the statewide results, but without the 47,284 votes cast by Cochise County residents. And without those, Republican Tom Horne would have lost the race for state schools chief to Democrat Kathy Hoffman, and Kirsten Engel, the Democrat candidate for the CD 6 race, would have had more votes than Republican Juan Ciscomani.
There's another angle to that question of whether a canvass is a legislative act.
In general, lawmakers - and that includes supervisors - are immune from prosecution for votes they take. They also cannot be questioned about their motives.
Lawson, however, told Fish that even isn't absolute. Consider, he said, a case where an elected official had been bribed to vote a certain way.
"They could not turn around and say, 'I'm immune because it was a vote,' '' he said. "It produces an absurd result.''
And this, said Lawson, fits in the same category.
"This is a criminal conspiracy to obstruct the election so that the secretary of state is unable to certify so that chaos will be created and no one will know what will happen,'' he said.
Wilenchik countered that, when all was said and done, the supervisors did not interfere with Hobbs' ability to certify the results on Dec. 5. But Lawson said that was only because the board had to be sued to get a court order to act.
Fish must consider other issues of whether the process used to indict the pair was legal.
For example, Judd chose to invoke her Fifth Amendment rights to refuse to answer questions. But Altman pointed out that came after she was told by Lawson - in front of the grand jurors - that she had a constitutional right to refuse to answer any questions "if a truthful answer to the question would tend to incriminate you.''
"That's not entirely accurate,'' Altman told the judge. He said the Fifth Amendment permitted Judd to refuse to answer any question, regardless of whether it might be incriminating.
"So that advisement left the grand jury with an impression that if she takes the Fifth Amendment, that means if she testified truthfully, she would have incriminated herself,'' Altman said. And that was compounded by Lawson never informing the jurors that they cannot draw any conclusions by Judd's refusal to answer.
The judge gave no date by which he will rule on the issues.
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