Southeastern Arizona county finally certifies 2022 election

By Howard Fischer
Capitol Media Services
PHOENIX -- Cochise County supervisors finally certified the results of the general election.
The 2-0 vote -- Republican Tom Crosby did not show up at the Thursday afternoon meeting -- came just hours after Pima County Superior Court Judge Casey ruled that state law is clear and that the supervisors have no choice but to conduct the formal canvass. The last date for them to have done that legally was Monday.
He acknowledged that there is an exception in cases where some voting precincts have not submitted their ballots. But McGinley said that is not the case here.
Instead, the judge said, the two Republicans on the three-member board said they were questioning whether the machines used to tabulate the ballots had been properly certified. That came despite repeated assurances by state Elections Director Kori Lorick that the machines met all legal standards.
But even if there were issues, McGinley said, that's not an excuse to ignore the clear language of the statutes.
"Whatever challenge or concern that the board or its members or the public may have about the certification or licensure of the tabulating equipment is not contemplated'' by the law, the judge said.
The order on the board to act came after McGinley rejected a request by Crosby to delay the hearing until next week.
Crosby told the judge the board has no one representing it. He said an attorney that he had hoped would show up Thursday now needs until early next week to prepare.
But McGinley refused after Andrew Gaona, who represents Secretary of State Katie Hobbs, pointed out that the state is set to do its formal canvass on Monday. With the results of 14 other counties already certified, the only thing missing is the final official tally from Cochise County.
The judge also rejected a request by Crosby to give the board until its scheduled Friday meeting to act.
That pleased Ann English, the lone Democrat on the three-member board -- and the only one who has wanted to approve the canvass all along.
She pointed out that Friday agenda actually includes what she believes is designed by Crosby to be "sort of a smackdown between the secretary of state and the election deniers that he has on the agenda.''
"I think its a circus that doesn't need to happen,'' English said.
Peggy Judd, who along with Crosby had blocked prior efforts to certify the results, said she was not happy being forced by McGinley to approve the certification.
"We have an obligation to ensure that our elections are fair and good,'' she said. But Judd acknowledged the validity of the court order.
"I am a rule-of-law person,'' she said. And Judd said that order, coupled with "my own health and situations going on in our life'' means "I must follow what the judge did today.''
Still, Judd made clear that she believes that, despite what McGinley ruled, her own reading of the election statutes convinces her that she was correct in saying that the results cannot be certified until all the questions about their accuracy had been answered.
McGinley's decision to proceed with the hearing over the objections of Crosby and Judd came after attorneys challenging the failure to act said there was no reason to delay.
"It appears that members of the board are acting in bad faith here,'' attorney Lalitha Madduri told the judge.
She represents the Arizona Alliance for Retired Americans, a labor group that sued to force the supervisors to act. And Madduri said the concerns about the certification of equipment appear to be little more than a ruse.
"The board has made public statements to news outlets describing what they're doing as a protest over the election in Maricopa County,'' she told the judge. "They have openly acknowledged that this entire machine issue that has been raised over the past 10 days was mostly a pretext for certification.''
Those issues relate to unsubstantiated claims by some that problems with printers and tabulation equipment in the state's largest county not only disenfranchised some voters but was done in a way to depress votes by Republicans who are more likely to go to the polls on Election Day than cast an early ballot.
And Gaona told McGinley he should pay no attention to the fact that the supervisors have had trouble getting legal representation after Cochise County Attorney Brian McIntyre refused, telling board members he would not go to court to defend their illegal actions.
"That the supervisors at issue here had difficulty securing an attorney willing to defend something that, frankly, has no defense is hardly the fault of the secretary or plaintiffs in the other case,'' he said. "To delay the case on that ground would prejudice all Arizonans and, in particular, the voters of Cochise County.''
That last point goes to the contention of Lorick that the state would go ahead and certify the election returns without the approximately 47,000 from Cochise County residents if the supervisors did not act by the date of the statewide canvass.
And that, in turn, would affect the results of several elections including the race for state schools chief and for the new representative from Congressional District 6.
"At this point, enough is enough and we need this case to come to a swift end,'' Gaona told the judge.
That final canvass in Cochise County should clear the way for the final statewide results to be certified. That includes the election of Hobbs as governor over Republican Kari Lake and the loss by Mark Finchem, the GOP nominee for secretary of state, to Democrat Adrian Fontes.
But it will not put the legal battles over the election to bed.
State law allows challenges to election returns to be filed within five days after the statewide canvass, now scheduled for Monday. Both Lake and Finchem already have said they are preparing lawsuits based on claims, so far unsupported, that those Election Day problems in Maricopa County disenfranchised many Republican voters.
Challenges aside, several races are headed for an automatic recount because the margin of difference between candidates was within one-half of one percent. That includes the contest for state schools chief and attorney general.
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