Cochise County prosecutor may charge supervisors who have not certified election results

By Howard Fischer
Capitol Media Services
PHOENIX -- The top Cochise County, Ariz. prosecutor said he may bring charges against members of the board of supervisors who have refused to certify the results of the general election.
Brian McIntyre told Capitol Media Services he already was looking at what crimes may have committed before former Arizona Attorney General Terry Goddard and former Maricopa County Attorney Rick Romley wrote to him urging him to act. McIntyre gave no indication how quickly he will make a decision.
Goddard and Romley sent an identical message to Attorney General Mark Brnovich who also would have the power to bring charges against the supervisors.
"We received the letter and decline to comment at this time,'' said spokeswoman Brittni Thomason.
This comes as a judge will hear arguments Thursday on whether he should order the board -- or at least the two members who voted against meeting last Monday's deadline to formally canvass the results -- to comply. And failure of Republicans Peggy Judd and Tom Crosby to obey the court order could result in a contempt citation.
But the two former prosecutors in their message made it clear they believe something more is appropriate when, as they contend, the two supervisors deliberately ignored the requirement in Arizona law that counties certify their election results no later than 20 days after the election. That date this year was last Monday, Nov. 28.
That deadline is set in law to pave the way for the state canvass which is supposed to occur on the fourth Monday following the election, which would be this coming Monday, Dec. 5.
There is a bit of wiggle room in that date, with the Election Code saying that can be postponed "day to day'' if any county canvass is missing -- but with a final deadline of Dec. 8.
"We believe deeply that the rule of law dictates that public officials be held accountable when they refuse to comply with their legal obligations -- all the more so when those officials' actions threaten to undo the proper administration of elections, disenfranchise thousands of voters, and potentially even alter the results of some races,'' wrote Democrat Goddard and Republican Romley.
Those last points refer to the threat by state Elections Director Kori Lorick to go ahead with the state canvass -- but without the 47,284 votes cast by Cochise County residents. And without those, Republican Tom Horne would lose the race for state schools chief to Democrat Kathy Hoffman and Kristen Engle, the Democratic candidate for the CD 6 rate would have more votes than Republican Juan Ciscomani.
In refusing to certify the vote this past Monday the two Republican supervisors said they had questions about whether the machines used to tally the paper ballots had been properly certified.
That came despite the fact that Lorick had written to them a week earlier telling the board the claims "are derived from baseless conspiracies about Arizona's equipment certification process.'' And she detailed how the machines "remain in compliance with state and federal requirements.''
Despite that, Crosby said Monday he wants more information both from the secretary of state's office and others. Judd went along even though he offered no evidence that the equipment did not meet legal requirements.
Only Ann English, who chairs the board, refused to vote for a delay.
"Arizona law provides no applicable legal grounds for county supervisors to refuse to comply with their legal duty to certify results by the statutory deadline,'' the two former prosecutors wrote.
As far as the excuse offered, Goddard and Romley called them "false and thoroughly discredited claims.''
More to the point, they said even if the claims were true "that would still not provide a legal justification for Supervisors Crosby and Judd to ignore their non-discretionary duty to certify the election results.''
Goddard and Romley even laid out for McIntyre and Brnovich what charges they could bring.
The most serious is a section of the law which says any person who knowingly refuses to perform a duty required in the Election Code is guilty of a Class 6 felony. That carries a presumptive sentence of a year in state prison.
A separate statute says any public officer who knowingly fails to perform a duty in connection with elections "in the manner prescribed by law'' is guilty of a Class 3 misdemeanor. Violators are subject to up to 30 days in jail, though these kind of cases can often wind up instead with a fine which can be up to $500.
There was no immediate response from either Crosby or Judd to messages left with their offices and on their cell phones.
English, however, commented on the chaos that the actions of her colleagues has created.
"I feel like I am in the middle of a tornado that keeps staying in place and I cannot get out safely,'' she told Capitol Media Services. "I have no control of the tornado, only my actions.''
English said it is "scary to think'' what will be the result when all this is over. But she said that has to be the focus of the board.
"We will still have a county to govern and constituents needing our services,'' English said. "I pray we will be up to the task.''
-30-
On Twitter: @azcapmedia