Arizona set for legal battles after county
refuses to certify midterm results
Republican officials face two lawsuits, likely court
intervention to force their vote and potential criminal penalties
Rachel
Leingang
Wed 30 Nov
2022 05.00 EST
After
officials in a rural Arizona county refused to certify election results by a
legally mandated deadline, they now face two lawsuits, likely court
intervention to force their vote and potential criminal penalties.
The rare,
likely illegal move by the officials sets up quick court battles as state
officials race to certify the election statewide, a process set for 5 December.
Candidates and outside parties wishing to sue over the election results await
these final results before their court cases can commence.
Two
statewide races will require recounts, which cannot start until the statewide
certification.
Two
Republican county supervisors in Cochise county voted to delay the
certification until Friday, though the deadline for Arizona counties to certify
results was 28 November. They cited already-answered questions over tabulation
machines when pushing off the vote. The third supervisor, a Democrat, wanted to
certify the results.
“It’s
astounding that Cochise county officials failed to certify the election
results,” Alex Gulotta, the All Voting Is Local Arizona state director, said in
a statement. “The refusal to certify the results is directly tied to those who
would rather sow distrust in our electoral process than protect our democracy
and ensure that all votes are counted.”
Despite a
pressure campaign from election deniers, all other 14 counties in Arizona
certified their results by Monday’s deadline.
The same
two supervisors, Tom Crosby and Peggy Judd, previously sought to conduct a full
hand count of ballots, against the advice of their own county attorney. The
full hand count was later deemed illegal by the courts.
Arizona
secretary of state Katie Hobbs sued the county by the end of the day on Monday,
noting that the supervisors were risking the potential disenfranchisement of
their county’s voters by refusing to do their jobs. The legal filing mentions
some of the potential fallout: the county’s results may not be included in
statewide results, throwing races to candidates who actually lost. The
statewide canvass could be delayed, though the latest date legally allowed is 8
December. It is not clear if all parties required to witness the statewide
certification are available outside 5 December.
Legally
required automatic recounts for the attorney general and superintendent of
public instruction would be delayed. Terms for newly elected officials start on
the first Monday in January, so those delayed recounts “could affect the
continuity of state government and interfere with the will of the people”, the
lawsuit says.
The
secretary’s office wants the court to require the county to canvass its results
by 1 December, so that the statewide canvass can be completed in time.
“The Board
of Supervisors had all of the information they needed to certify this election
and failed to uphold their responsibility for Cochise voters,” the secretary of
state’s office said in a statement. “The Secretary will use all available legal
remedies to compel compliance with Arizona law and protect voters’ right to
have their votes counted.”
Unless the
board voluntarily decides to come back and certify its results, the likely
remedy is a court intervention. After New Mexico’s Otero county failed to
certify results earlier this year, for example, that state’s supreme court
stepped in and required it to certify its primary results.
The Arizona
Alliance for Retired Americans and a Cochise county resident, Stephani
Stephenson, separately filed suit against the county over the failure to
certify. That lawsuit also seeks a court order to compel the supervisors to
approve the results.
A hearing
is set for 1 December for both lawsuits, the day before the board is set to
meet again to discuss certification.
County
officials and the state have repeatedly warned counties they must certify
results by 28 November under state law, which requires county governing bodies
to canvass their results no later than 20 days after an election. The action
isn’t optional, and there are no steps contemplated in state law for simply
refusing to conduct the canvass. The only way to delay the canvass is if
results from parts of a county haven’t yet been received, which was not the
case in Cochise county.
A separate
state law says a person charged with any election-related duty who refuses to
perform that duty in violation of law is guilty of a class 6 felony.
Additionally, should supervisors refuse to follow a potential court order
requiring them to canvass the results, they could be held in contempt of court.
The Cochise
county attorney will not be representing the supervisors in these lawsuits,
instead requiring them to get outside counsel, county attorney Brian McIntyre
confirmed on Tuesday.
Several
candidates who lost their races have already filed or plan to file lawsuits
contesting the results, citing printer issues in Maricopa county that affected
voting on election day, though the statewide canvass plays a critical role in
allowing those lawsuits to move forward.
Republican
attorney general candidate Abe Hamadeh, who lost by just 510 votes in a race that
will legally require a recount, filed a lawsuit before the statewide canvass,
though the it was dismissed on Tuesday because it was filed too early. Hamadeh
could refile it.
Kari Lake,
the Republican gubernatorial contender who lost by more than 17,000 votes, has
repeatedly indicated she intends to sue over the results, gathering testimonies
from voters and poll workers that she has shared on social media.
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