Cochise County official, once in doubt, now says she will vote to certify election results

Cochise County Supervisor Peggy Judd said she would vote to certify the county's election results next week, a move that would respect the votes cast by more than 47,000 county residents and avert another legal battle over the Nov. 8 election.

Judd, along with fellow Republican Supervisor Tom Crosby, last week delayed a decision on whether to certify the election results, citing concerns raised by several citizens, including two men who do not live in the southeastern Arizona county.

But on Wednesday, Judd said “I’m good” with certification and is confident the county's vote tabulation machines were certified by an accredited laboratory − the issue that prompted Judd and Crosby to vote to delay certification last week.

“I've done my homework," Judd said, adding she spent several late nights reviewing information about the laboratories that certify vote tabulation machines. Her vote, along with that of Democratic Supervisor Ann English, would create a majority on the three-member panel. English has indicated she doesn't support a delay in certification.

Certification has become another front in efforts to contest the results of the November election, with Cochise and Mohave county officials raising doubts whether they would follow the law that requires them to certify election results.

Mohave officials said they would certify their county's results but were delaying the vote until Monday to show their displeasure with election irregularities in Maricopa County.

'No' vote would add to election chaos

If Cochise supervisors were to decline to certify, as seemed likely in letters sent to the Arizona secretary of state this week, the consequences of their inaction would add to the tumult surrounding an election that produced surprising Democratic wins and razor-thin margins in several statewide contests, including the race for governor.

For example, U.S. Rep.-elect Juan Ciscomani, a Republican, could see his win in the 6th Congressional District flipped, with Democrat Kirsten Engel taking the seat. State schools Superintendent Kathy Hoffman would come out the winner in her reelection bid, denying Republican Tom Horne a win. And dozens of local races, from city elections to school boards to judges, would not have any certified votes.

That's because Cochise County voters lean heavily toward Republican candidates, so the lack of certification would subtract their votes from the official statewide tally. While both Democrats and Republicans would lose votes in this scenario, GOP candidates would have the bigger losses. That would widen the margin of defeat for candidates such as Kari Lake, Mark Finchem, Blake Masters and Abe Hamedeh, although Hamedeh's race with Democrat Kris Mayes for attorney general still would be subject to an automatic recount, according to a Republic analysis.

More broadly, lack of certification would disenfranchise the 47,284 county residents who voted in the general election.

Republicans would lose if certification blocked

Such outcomes only would happen if there were no certification and if there were no legal intervention to compel Cochise County to follow the law requiring certification.

Secretary of State Katie Hobbs' office has promised to sue if the three-member Cochise board would not certify, repeatedly warning county officials that the law requires them to canvass the election tallies. With Judd's comments Wednesday, it appears a vote favoring certification would happen Monday, assuming English votes to certify, as she has indicated. That would mean Cochise County's votes would be included in the Dec. 5 statewide canvass.

Judd acknowledged the lack of certification would harm Republican candidates.

“It would make a huge difference," she said, singling out Hamedeh, who would fall behind Mayes by nearly 9,700 votes if the Cochise votes were not counted, according to unofficial election returns. He currently trails by 510 votes statewide.

Likewise, Ciscomani would trail Engel by 8,500 votes, in contrast to his current winning margin of 5,200 votes.

Ciscomani did not immediately return a call seeking comment.

Judd said the people who have supported her efforts in questioning aspects of the election were telling her to decide for herself on certification.

Crosby could not be reached for comment, and he did not return an email requesting his stance on the upcoming certification vote. But in a Tuesday reply to the Secretary of State's Office, he remained skeptical.

"At present, my observation is it is either effectively illegal, or otherwise impossible to confirm the 100% accuracy of our voting machines," Crosby wrote.

Open meeting complaint lodged

The controversy over certification comes on the heels of the board's failed efforts to do a hand count of every ballot cast in the general election. That has now led to an Open Meeting Law complaint to state Attorney General Mark Brnovich.

After a Superior Court judge ruled the board's 2-1 decision to do a hand count violated the state law, Crosby and Judd sued Elections Director Lisa Marra to try to force her to expand her legally authorized hand count. They hired Phoenix attorney Bryan Blehm to press their case, then later directed him to withdraw the matter since two statewide races were headed toward an automatic recount.

But those actions happened outside of an open public meeting, according to a complaint from former Bisbee Mayor David Smith.

“In Cochise County, we only have three supervisors, so two of them can never get together and discuss anything outside of a meeting,” Smith said. “There’s no way in hell they can jointly agree to file a suit and then drop the suit without talking to each other and agreeing to do that.”

The Open Meeting Law requires public officials to conduct all business openly. Outside a public meeting, no public body such as a city council or county supervisors board can gather where a majority, or quorum, of members are present and discuss their official duties.

Smith said the Attorney General’s Office confirmed receipt of his complaint.

The punishment for violating the Open Meeting Law is usually no more than requiring training for the offender and possibly small fines for multiple violations. Also, any formal action taken outside a proper meeting might have to be readdressed in a public meeting. But the attorney general also can also seek to remove officials from office if it’s determined the offender intentionally acted to keep information from the public.

Meanwhile, questions remain about who will pay the legal fees the supervisors have piled up in their efforts to do a hand count, including a pending appeal in the state Court of Appeals of the ruling barring a hand count. Judd has said she doesn't want to use taxpayer money and has launched a private fundraising drive.

Reach the reporter at maryjo.pitzl@arizonarepublic.com and follow her on Twitter @maryjpitzl.

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