BISBEE — Cochise County Attorney Brian McIntyre is weighing options as the Board of Supervisors ignores state law by refusing to approve the 2022 election results.
McIntyre said he received a letter from former Attorney General Terry Goddard, a Democrat, and former Maricopa County Attorney Richard Romley, a Republican, who asked him to investigate potential laws broken by Republican Supervisors Peggy Judd and Tom Crosby as they refuse to approve the canvass.
Romley served as Maricopa County attorney from 1989 to 2004 and acted as an interim county attorney in 2010. Goddard served as Arizona attorney general from 2001 through 2011.
The letter, which was also sent to Arizona Attorney General Mark Brnovich, stated, “Their votes against certification resulted in the three member board failing to perform its legal duty to certify the election. We take no pleasure in making this prosecution recommendation, but 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 where those officials’ actions threaten to undo the proper administration and integrity of elections, disenfranchise thousands of voters and potentially alter the results of some races.”
In October, McIntyre and Chief Civil Deputy County Attorney Christine Roberts told Judd and Crosby what they were suggesting, a hand count of ballots, was not legal and if they proceeded down that path the county could not represent them.
McIntyre stated Wednesday in an interview with the Herald/Review, “We have been evaluating options since the conclusion of the board meeting on Monday. I do not believe the ethical rules permit me to answer any other questions at this time.”
That path began with the October/November proposal to force a hand count of various ballots and have it completed before Elections Director Lisa Marra finished the county’s ballot count and audit. At that time, McIntyre noted neither he nor his office would be able to represent the board in any legal wrangling.
The supervisors were represented in the hand count battle by attorney Brian Blehm, known for his work with the Republican Party and the dispute over the 2020 presidential election. It ended with a ruling by Pima County Superior Court Judge Casey McGinley, who halted proceeding with any hand count.
The testimony of Marra, who explained the problems of performing a hand count when early and mail-in ballots were being tallied, was considered by McGinley, as was the fact she was not authorized to turn ballots over to County Recorder David Stevens. Stevens would transport the ballots to a location somewhere in Sierra Vista for counting by various party volunteers, the majority of which were Republicans.
The reason for the hand count was based on Republican voters who did not have confidence in the state’s or the county’s election system, according to Crosby, Judd and Stevens. They wanted to compare the hand count with the tabulation from the machines. If the hand count matched the machine tabulations, it would prove the system works and relieve their constituents’ anxiety.
The Goddard/Romley letter stemmed from a meeting of the board on Monday in which Crosby and Judd declined to approve the results even though they were up against the state deadline for canvass, Nov. 28. They say the Secretary of State’s Office did not provide all the answers to their questions about the certification process and they wanted Secretary Katie Hobbs or someone from her office to attend a meeting they scheduled for 10 a.m. Friday, Dec. 2.
When the results were not approved by the Nov. 28 deadline, Hobbs filed a lawsuit, which will be heard Thursday, Dec. 1, at 1 p.m. and will be overseen again by McGinley in the Cochise County courthouse.
However, as of press time, the county does not have legal representation. According to Supervisor Ann English, Blehm has refused to provide counsel and another attorney recommended by his office also declined. She suspects the court hearing Thursday proved to be too big of a challenge for an attorney coming onboard at the last minute.
“I’ll be there, because I was ordered to go,” she stated. “I just don’t know what going to happen.”
She said County Administrator Richard Karwaczka was still trying to find legal representation.
Goddard and Romley pointed out the board has a “non–discretionary duty to certify the elections results, and there is no legal basis for refusing to certify. Arizona law provides no applicable legal grounds for county supervisors to refuse to comply with their legal duty to certify the results by the statutory deadline.”
They suggested Judd and Crosby could be violating “various criminal laws,” including a Class 6 felony for failing to perform their duties. The felony can result in a sentence of one year in a state prison. There also are Class 2 and Class 3 misdemeanors they could be charged with for their failure to perform the state mandated duty.
Goddard and Romley cite the two supervisors who “willfully refused to comply, citing discredited and demonstrably false conspiracy theories in support of their refusal,” which makes Cochise the only county in the state that has not approved the results.
They continued, “Such action is necessary to protect not only the integrity of the 2022 elections, but also future elections in the state. This would pose a substantial threat to election administration in Arizona.”
McIntyre said he has yet to hear anything from Brnovich, whose deputy solicitor general, Michael Catlett, provided an informal review of the supervisors’ decision to hold a hand count at the request of Rep. David Gowan, R-Sierra Vista. Catlett’s letter of Oct. 28 appeared to approve of the Judd-Crosby-Stevens plan to perform an expanded hand count.
Catlett wrote: “Cochise County has the discretion to perform an expanded hand count audit of all ballots cast in person at 100% of the vote centers, along with 100% of the early ballots, so long as the expanded hand count audit of five contested statewide and federal races appear on the 2022 ballot.
“There is no limit in statute or in the Elections Procedures Manual on the number of ballots that the board can include in the hand count audit of votes cast in person,” though the audit “cannot include provisional ballots, conditional provisional ballots and write-in votes.”
Catlett said he did not address the issues of the supervisors’ authority to perform a hand count outside of the scope of ARS 16-602 and “what effect, if any, the hand count would have on the official outcome of the 2022 general election.”
In a New York Times story Wednesday, Judd said concerns about the voting machines “were just pretext for additional delays that would send a statement that they were unhappy with the way the election was administered in Maricopa County.”
She was quoted as saying, “It’s the only thing we have to stand on.”
However, Wednesday in an emailed response to questions, she stated, “As you might suspect the Times reporter ‘led’ me into saying things I would not have said and didn’t mean.
“Reluctance is all based on whether votes are legal, if they were counted by the machines which appear to be out of compliance with Help America Vote Act. This would have been over for me on Monday if we had the question and answer session with public input that I was expecting.”
On Monday, no motion was made to remove the tabled agenda item so it could be discussed. Judd and Crosby decided to leave it tabled.
“I don’t want to go to jail,” Judd continued. “I do intend to certify the election … even if under duress because of threats. The secretary of state has until 30 days after the election to get her part done. I don’t believe she was required to sue us for action. I believe she could have waited.
“I think the Maricopa County Supervisors are wrong for not being more attentive to their duties and ensuring all their votes were cast and counted. They had too many machine malfunctions and it was obviously in highly Republican areas.”
She said she does believe the state Legislature needs to take action on the “voting machine problem. They are old and as we are finding, possibly not secure from threats. The certification process is lax at best and the contract between state and federal government needs to be reviewed.”
Editor’s note: A previous headline on this story erroneously indicated County Attorney Brian McIntyre had asked for charges against Supervisors Peggy Judd and Tom Crosby. The Herald/Review apologizes for the error.