BISBEE — A filing by Cochise County Board of Supervisors attorney Daniel McCauley to quash a ruling by Pima County Superior Court Judge Casey McGinley and have a case remanded to U.S. District Court was rejected, according to Sophia Solis, deputy communications director for Secretary of State Katie Hobbs.
Federal Judge Rosemary Marquez was given the case and requested more documentation last week.
Tuesday afternoon, Marquez reviewed the documents submitted by McCauley and determined they were insufficient and rejected the case due to “technical noncompliance.”
The suit was in regards to a ruling handed down by McGinley that required the board to approve the vote totals in the county from the Nov. 8 election.
The board of supervisors voted unanimously Tuesday in a special meeting to follow McCauley’s advice. McCauley was hired just two hours prior to a court hearing Dec. 1 in which McGinley ruled the board must approve the 2022 election results.
Supervisors Ann English, Peggy Judd and Tom Crosby closed the public meeting and made the determination in an executive session, so the public does not know what was discussed.
The main problem
Hobbs was required to submit an updated Elections Procedures Manual by the end of 2021 to Gov. Doug Ducey and Arizona Attorney General Mark Brnovich, which would include new certification information. Other election officials and attorneys in the state worked with Hobbs on the updated manual.
Brnovich redlined the draft extensively and stated she had overstepped her authority in some additions, so he rejected it. A review of the draft 2021 EPM showed the cuts to the submission, including the section on certification, much of which was already approved in the 2019 EPM as Hobbs pointed out in a response to Brnovich.
In any case, Hobbs attorneys Andrew Gaona of Coppersmith Brockelman and Sambo (Bo) Dul with the States United Democracy Center said the 2019 EPM would still apply, as would the state statute ARS 602-642 (A), “The governing body holding an election shall meet and canvass the election not less than six days nor more than twenty days following the election.”
It means the supervisors had the non–discretionary duty to approve the results by Nov. 28, 20 days after the election, stated Gaona.
The court rulings
Judd and Crosby tabled the vote twice to approve the results until witnesses from Maricopa County who were involved with failed court cases on election issues could debate Hobbs and state Elections Director Kori Lorick in a special meeting of the supervisors.
Those Maricopa County witnesses were Daniel Wood, Bryan Steiner and Paul Rice. A suit was filed on their behalf by Phoenix attorney Timothy LaSota in May 2021 against Brnovich, Hobbs and Gov. Doug Ducey about the certification of all election equipment in the state. It was tossed out by the Arizona Supreme Court when “it could find no legal basis for the relief requested” which included removing all elected officials with the caveat the plaintiffs would fill the empty seats. The trio was denied their complaints by the courts “on the basis they provided no proof of harm to voters.”
Sound familiar? It should because that is what attorney Bryan Blehm, who represented the supervisors in a Nov. 6 hearing, stated with insistence the supervisors could produce a last minute hand count of ballots cast in the 2022 election. No plan was revealed on how the ballots would be transported to an as yet unknown location to unknown volunteer counters.
Judd and Crosby wanted to hold the hand count to appease their constituents who have lost faith in the election process.
McGinley presided over the Nov. 6 hearing on the hand count and agreed with the Alliance for Retired Americans, Arizona chapter, and Stephani Stevenson, a Democratic county voter, who sued the supervisors and County Recorder David Stevens, who also was in favor of the hand count. McGinley stopped the hand count proposal from moving forward.
Blehm decided to appeal the judgment and filed with the Arizona Court of Appeals. Then he changed his mind and asked for the case to be expedited to the Arizona Supreme Court. Both courts denied his request to transfer the case. It is not known when or if the case will be heard by the appeals court.
Blehm then chose to sue county Elections Director Lisa Marra for refusing to participate in the hand count as she stood by the legal advice from County Attorney Brian McIntyre and Chief Civil Deputy County Attorney Christine Roberts. They said the actions Judd and Crosby proposed were not legal.
However, the supervisors did not hold a public meeting to approve Blehm’s new suit. He was only hired for the hand count suit. Allegations of an open meeting law violation was passed on to the attorney general’s office by former Bisbee Mayor David Smith. No word yet on the progress of the complaint.
Blehm, whose $10,000 retainer was paid by an unknown person or organization, quickly dropped the suit against Marra.
When Judd and Crosby refused to approve the election results by the state mandated deadline, Hobbs, the Alliance and Stevenson brought the supervisors back to court Dec. 1 to force them to fulfill their duty. McGinley ruled they must approve the results in a 3:30 p.m. meeting the same day.
English and Judd followed the judge’s ruling, held the meeting and approved the election results. Crosby did not attend.
English has opposed Judd and Crosby in their attempts to hand count ballots and prevent the canvass of the election results. Since she is a member of the board, she was included in the suits.
McGinley set a deadline of 5 p.m. to have the results transmitted to Hobbs so she could meet her deadline of sending the results to the state legislature for canvassing by Dec. 8. Marra told the Herald/Review the results were sent on time.
The move to federal court
The statute requiring the board to certify the results was not upheld by Judd and Crosby. They stuck with the story that the election results could not be approved because the electronic voting equipment was not certified, contrary to Hobbs’ proof of certifications by the U.S. Election Assistance Commission and the state’s Equipment Certification Advisory Committee.
McCauley wanted the case moved to the federal district court claiming a “federal act” is at issue, referring to the Help America Vote Act of 2002.
“The face of Plaintiffs’ complaint present a federal question of whether or not the machines or devices used at any election for federal, state or county offices were certified for use in this state. If so, they may only be used in this state if they comply with the Help America Vote Act of 2002 and if those machines or devices have been tested and approved” by a certified laboratory as required by law.
The EAC must certify all voting equipment in the U.S. and is the sole source to decertify any such system. The county’s and the state’s equipment is still certified, according to an EAC letter sent to Hobbs.
To prevent further review on the case by McGinley, McCauley claimed, “The defendants cannot have a fair and impartial trial or hearing” before McGinley who he called “prejudiced.” He also stated he “has personal knowledge” to back his claim and would serve as a witness if asked.