Election certification trial pushed back, pending judge's decision on motion to dismiss
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The trial to determine whether Cochise County Supervisor Tom Crosby conspired to interfere in the duties of the Secretary of State's Office when he refused to certify the results of the 2022 election has been pushed back from May to September.
During a Friday morning hearing in Maricopa County Superior Court, Brian Gifford, the attorney representing Crosby, argued that the case should be dismissed because of incorrect language in the grand jury indictment and what he described as the state's failure to identify a co-conspirator in the case.
Crosby and Supervisor Peggy Judd, the two Republican members of the three-member Cochise County Board of Supervisors, were both indicted in 2023 on felony charges of conspiracy and interference with an election officer for their refusal to certify the results of the 2022 midterm election by the state-mandated deadline.
GOP county supervisors across the state faced intense pressure not to certify the election results in 2022 amid unsubstantiated claims by prominent Republican candidates and influencers, including failed GOP gubernatorial candidate Kari Lake, of election fraud in Maricopa County.
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The Cochise County Board of Supervisors only voted to certify the election results after a judge ordered it to do so. Cochise was the only Arizona county to miss the Nov. 28 certification deadline, putting the county's votes at risk of not being counted. Even after the court order, Crosby refused to attend the certification meeting.
In October, Judd pleaded guilty to a lesser charge of refusing to perform the duty of an election officer, a misdemeanor, as part of a plea deal.
On Friday, Gifford argued that the indictment in the case was impermissible because it failed to directly identify a co-conspirator in the conspiracy charge, making it impossible for Crosby to prepare to defend himself at trial. Gifford claimed that prosecutors for the Arizona Attorney General's Office provided no evidence that Crosby and Judd communicated outside of public meetings about their plans not to certify the election results. And any comments they made during public board meetings were protected by legislative immunity.
'How can defendant Crosby prepare a defense against the charge of conspiracy if he has no notice of who the state is claiming he allegedly conspired with? It's ludicrous,' Gifford said.
But Todd Lawson, prosecutor for the Attorney General's Office, said that the defense didn't get to decide whether there was evidence of a conspiracy, but that was up to the jury.
Gifford also told the judge that the indictment incorrectly accused Crosby of conspiracy to delay the certification of election results instead of conspiracy to interfere with the certification, which is the actual charge brought against him. Gifford said that if the correct language had been used, perhaps the grand jury would not have returned an indictment, adding that the jury would see the indictment and would possibly be confused by it.
'Crosby could admit to everything in the indictment but not be found guilty for conspiracy to interfere,' Gifford said, since the indictment only accuses him of conspiracy to delay, not to interfere.
He argued that delaying the certification of the results was not the same as interfering with the certification of results, especially since the results were still certified in time to meet the deadline for the secretary of state to sign off on the results.
Lawson countered that Crosby's efforts to delay the certification equaled interference.
'The delay is interference,' he said. 'The goal is to create chaos, to create litigation to create a situation where the legislature needed to declare a winner, to create a situation where the Secretary of State could not perform her job because of questions about whether the information that she was acting on was sufficient to declare winners.'
Lawson also criticized Gifford's insistence that Crosby's refusal to certify the election results was a 'victimless crime.'
'With hindsight, the defendant is now claiming, 'see, I didn't intend to interfere because look, without my involvement whatsoever, the canvass actually did (happen) after a short delay that didn't wind up actually interfering with anything.'
But Lawson pointed out that without a lawsuit from then-Secretary of State Katie Hobbs, and a subsequent court order that required the Cochise County Board of Supervisors to certify the election results, things might have turned out differently. He reminded the judge that Crosby still refused to certify the results, even after the court ordered him to, and that it was the other two supervisors that ultimately voted to certify in his absence.
'The bank robber who walks out of the bank and drops the money, he still intended to rob the bank,' Lawson said. 'He just didn't get far.'
Fish told the court on Friday that his ruling on the motion to dismiss probably wouldn't be coming for at least a week.
The court already denied an earlier motion to dismiss from Crosby in February when he argued that his actions were protected by legislative immunity and that they were improperly filed in Maricopa County.
An appeals court agreed with the lower court.
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