Cochise County, Arizona, Supervisor Tom Crosby was not protected by legislative immunity when he delayed certification of the 2022 midterm election, an Arizona appeals court ruled earlier this week, upholding a ruling by a lower court.

Crosby now plans to ask the Arizona Supreme Court to reverse that decision, his attorney told the Arizona Mirror.

“We believe the decision is in error and not well grounded in law or fact,” Dennis Wilenchik, the lawyer representing Crosby, wrote in an email.

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 election by the state-mandated deadline.

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Supervisor Ann English, a Democrat, was the only board member who dissented and voted to proceed with the certification before that 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 of election fraud in Maricopa County.

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.

“Crosby himself admitted in his grand jury testimony that he was unaware of any issues with the election results submitted by the Cochise County Elections Department that would justify postponement,” Judge Paul McMurdie wrote in the Dec. 31 decision by the Arizona Court of Appeals.

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. By avoiding a felony conviction, Judd retained her right to vote and her seat on the county board. She was sentenced to 90 days of unsupervised probation and ordered to pay a $550 fine.

In February, Crosby asked a Maricopa County Superior Court judge to dismiss the charges against him, arguing that his actions were protected by legislative immunity and that they were improperly filed in Maricopa County.

The lower court denied the motion to dismiss and Crosby asked Arizona’s Division One Court of Appeals to reverse it, claiming that the superior court abused its discretion when it refused to dismiss the case.

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But the appeals court agreed with the lower court, with McMurdie writing that legislative immunity does not apply to the board’s failure to certify election results. Presiding Judge Jennifer Campbell and Judge Kent Cattani both joined in the unanimous ruling.

“The Board’s refusal to certify the election results was not a legislative act,” McMurdie wrote on behalf of the court. “Crosby’s duty to canvass the election under (the law) was not discretionary.”

McMurdie also concurred with the lower court that the delay in certifying the Cochise County results impacted the ability of state officials located in Maricopa County to certify the results by their own mandated deadline, making Maricopa an acceptable location to file the charges.

The appeals court judges agreed with the lower court that whether Crosby committed election interference should be decided by a jury, McMurdie wrote.

Wilenchik told the Mirror that the case should never have been brought in the first place, describing it as the result of Democratic Attorney General Kris Mayes’ desire to prosecute her political enemies.

“To find a Supervisor trying to do his job on behalf of the electorate is not immunized for his vote to continue the certification for a few days for a valid reason is ridiculous,” Wilenchik wrote. “Noone (sic) would rightly serve in public office were this the case.”

Wilenchik blamed the delay in certifying Cochise County’s 2022 election results on English, the board’s chair, saying she failed to include a discussion about the results on the agenda for the November 28, 2022, meeting, the deadline to certify the results.

“There was no ‘interference’ intended, or that occurred, as charged, with any election official, and the SOS certification occurred on time and caused no delay,” Wilenchik wrote. “If it were a crime of interference for an elected official to make certain the vote count was proper before agreeing to certify it, then there certainly was no notice of that to Mr. Crosby under the law.”

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Except the meeting agenda that day included certifying the election, which Crosby voted against. And the full board, including Crosby had previously been warned explicitly by state elections officials that failure to certify the election by the deadline was a crime, and that it would lead to litigation.

Cochise County officials first balked at canvassing their election results November 18, when the board held a special meeting to discuss its legal duty to approve the election. During the meeting, members of the public testified — including “various conspiracy theorists” who have a track record of “filing spurious lawsuits” seeking to overturn elections — and falsely told the supervisors the machines used to tally the votes were not properly certified.

But the supervisors also heard from county Elections Director Lisa Marra and State Elections Director Kori Lorick, who both said those claims were pure fiction. November 21, Lorick sent the board a letter warning the supervisors that failing to canvass the election by the Monday deadline would prompt legal action.

In that letter, Lorick also reiterated that the machines used in every Arizona county, including Cochise, had been properly certified by the state and federal governments. She also attached a letter from the Election Assistance Commission, the federal entity that certifies all election equipment used in the United States, confirming that the machines used in Cochise County were properly certified and accredited.

But Crosby and Judd opted to ignore the warning when it met November 28 and voted 2-1 to table the election canvass until December 2. English was the lone vote to proceed with the canvass.

A jury trial in Crosby’s case is set for January 30.

The Cochise County Board of Supervisors has been a hotbed for the spread of election conspiracy theories. The supervisors attempted to conduct a full hand-count of ballots cast in 2022, again citing unsubstantiated claims of voter fraud and voting machine manipulation.

That effort was blocked by a Cochise County Superior Court judge who ruled that a full hand-count was illegal under state law, a ruling that was later confirmed by an Arizona appeals court.

In 2023, a judge in Pima County ordered Crosby and Judd to pay $36,000 in legal fees for the secretary of state and the Arizona Alliance for Retired Americans, who sued the supervisors for failing to certify the election.

Arizona Mirror is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com.