Appeals Court Rules Against Kochise County Supervisor in Election Case
Kochise County supervisor Tom Crosby will not escape the legal consequences of charges related to election interference and conspiracy regarding the 2022 election results, according to a ruling from the appeals court on Tuesday.
Judge Paul McMurdy, writing for the unanimous court, acknowledged that elected officials enjoy some “legislative immunities” for their voting decisions. However, he clarified that, under Arizona law, the formal canvassing of votes is an administrative duty without discretion, meaning Crosby cannot use this immunity as a defense.
The judge also dismissed Crosby’s assertion that his actions—or lack thereof—did not obstruct the Secretary of State’s responsibility to finalize the election results. Two other board members had already confirmed the results by December 1, 2022, following a court order, allowing then-Secretary of State Katie Hobbs to conduct the statewide canvas shortly thereafter. Still, McMurdy noted that Crosby’s actions could have hampered Hobbs from completing her job, leaving some questions open regarding the situation.
This ruling isn’t necessarily the end of the matter. Attorney Dennis Willensik announced plans to seek a Supreme Court review. It’s worth mentioning that the outcome will not affect the other two supervisors involved.
Another Republican supervisor, Peggy Judd, previously pled guilty to a minor charge of failing to fulfill her duties and received a $500 fine along with 90 days of unsupervised probation. In contrast, Democrat Anne English has not faced any charges since she was the only supervisor to initially support verifying the election results.
The issues surrounding the charges against Crosby resurfaced during board discussions about voting hand-raises before the 2022 election. A lawsuit from Crosby and Judd aimed at forcing county election director Lisa Mara to conduct a hand count was ultimately dismissed.
The supervisors did not meet their November 28 deadline to certify election results, instead insisting on debating the accreditation of voting machines. The board had received the necessary information but opted to delay, as English highlighted that certification was a duty devoid of discretion.
A court order compelled the supervisors to acknowledge their responsibilities, but Crosby did not participate in the emergency session that followed. Attorney General Chris Mays obtained an indictment against Crosby and Judd in late 2023.
Willensik argued that the charges were “vindictive and retaliatory,” asserting that both he and Judd were entitled to seek clarification prior to certifying the election outcomes. He criticized the indictment as a misinterpretation of the law, claiming that it relied on an expansive reading of statutory intent.
However, Judge Jeffrey Fish of Maricopa County Superior Court was unimpressed with these arguments and declined to dismiss the charges, leading to the appeals court’s decision. McMurdie emphasized that legislative immunity is outlined not only in common law but also in the Arizona Constitution, stating that council members are protected from prosecution for statements made during discussions.
Still, the appeals judge noted that the applicability of immunity hinges on whether the case falls within “traditional law” and how discretion in policy is utilized. McMurdie pointed out that Crosby’s duty to ensure election integrity was mandated by law and not a matter of choice.
Crosby’s desire to seek answers for his constituents was articulated, but McMurdie commented that there wasn’t sufficient evidence to back that claim. The judge recalled that Crosby had acknowledged ignorance regarding the election results submitted by the Kochise County Election Bureau, which contributed to the postponement.
Wilenchik emphasized that there was no delay in state recognition, asserting, “So there was no interference.” Yet, McMurdie concluded that the achievement of an electoral canvas is a matter of implementing policies, not exercising discretion.
In his remarks, McMurdie stated that finalizing the election results involves straightforward arithmetic, requiring no complex decisions by the board. Instead, they were obligated to follow statutory requirements and court directives.
