A panel on the Arizona Court of Appeals ruled last week that Attorney General Kris Mayes’ prosecution of Cochise County Supervisor Tom Crosby for delaying canvassing of the 2022 election may proceed.
Crosby, along with Cochise County Supervisor Peggy Judd, was indicted for felonies by a grand jury in November 2023 for briefly delaying the canvassing of the 2022 election to investigate concerns with the voting machine tabulators. Judd accepted a plea agreement two months ago for a misdemeanor charge of failing to perform her duty as an election officer and was sentenced to probation.
State Senate President Warren Petersen (R-Mesa) and Speaker of the House Ben Toma (R-Peoria) filed an Amicus Curiae brief opposing the prosecution last March.
Crosby (pictured above) moved to dismiss the indictment due to legislative immunity. The trial court judge denied the motion, prompting him to file a Special Action with the appeals court in September, asking to dismiss the charges. In it, his attorney, Dennis Wilenchik, denounced the prosecution as “political.”
He said, “This matter is nothing more than the misguided political retribution of a partisan Attorney General abusing her powers,” and Crosby is being “wrongfully prosecuted as a political scapegoat. … The wrongful criminal prosecution of Arizona’s represented officials is at stake in this case as the Attorney General clearly seeks to stretch the boundaries of the criminal law beyond recognition for her own political ends.”
However, the appeals court agreed with the trial court, concluding his duty to certify the election results wasn’t discretionary so the prosecution could proceed.
Judge Paul McMurdie, considered one of the most progressive judges in Arizona, delivered the court’s opinion, joined by Judges Jennifer Campbell and Kent Cattani.
The situation arose immediately after the 2022 general election when Crosby and Judd voted to conduct a full hand count of all the precincts due to concerns about accuracy with the voting machine tabulators. In Pinal County, undervotes were found after the 2022 election on the voting machine tabulators for attorney general candidate Abe Hamadeh, decreasing Mayes’ lead over him to only 280 votes,
The Arizona Secretary of State’s (AZSOS) election director told Crosby and Judd that they did not have the authority for that but could only conduct a partial hand count.
However, then-Attorney General Mark Brnovich provided two written statements, one from November 4, 2020, and one from October 28, 2022, which stated that the supervisors had legal authority to conduct full hand counts.
When the deadline came for the county to certify the election, November 28, 2022, Crosby and Judd voted to postpone it until December 2, while the Democratic board member voted against it.
Then-Secretary of State Katie Hobbs brought a Special Action to force certification, and the court ordered the board to certify the results on December 2, 2024, which they did.
Regarding the allegation of interference with the AZSOS’s duties, Crosby’s petition explained, “[T]he failure to submit the county canvass could never possibly ‘impede’ or ‘hinder’ the Secretary of State in the discharge of her duty to canvass the statewide election because the very scope of the discharge of the Secretary’s duty would change to accommodate such a delay. … Specifically, A.R.S. § 16-648(C) exempts the Secretary of State from fulfilling her duty to conduct the statewide canvass on the fourth Monday after the election if the returns from any county are missing. Moreover, if the delay continues, the statute exempts the Secretary of State from ever needing to include the specific returns from the missing county in the statewide canvass.”
Crosby’s trial is scheduled for January 30. He intends to appeal to the Arizona Supreme Court. A special House panel attempted to start impeachment proceedings against Mayes for her “political prosecutions” of Crosby and Judd, as well as “election interference” last June. Founder Mike Davis of the Article III Project, which defends constitutionalist judges and the rule of law, posted on X last month that Mayes could go to prison due to obstructing the incoming president.
