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Are local officials duty-bound to certify elections? Arizona ruling creates new doubt

When two Republican Cochise County supervisors delayed their certification of the county鈥檚 2022 election results, a judge forced them to certify, pointing to language in Arizona鈥檚 election manual that says they have no choice.

A state grand jury later with two felonies鈥攃onspiracy, and interference with the secretary of state鈥檚 duty to certify the election. And two secretaries of state have sought to make the rules about supervisors鈥� duties more explicit, reports.

A recent court ruling, though, challenges the long-held presumption in Arizona that supervisors have no discretion when certifying election results. The court threw out that section of the Elections Procedures Manual entirely, saying it goes further than the statute supports.

The decision could shake up the pending criminal trial against one of the Cochise supervisors, Tom Crosby, as a judge weighs his latest request to dismiss the charges. (The other supervisor, Peggy Judd, pleaded guilty as part of a deal with prosecutors last year.)

It could also encourage supervisors across the state to test the boundaries of the state鈥檚 certification law by attempting to delay or block certification of future elections.

Former Pinal County Attorney Kent Volkmer, a Republican, said that鈥檚 risky, and that partisan supervisors shouldn鈥檛 have that choice.

鈥淚 think it opens it up to potential concerns if you allow essentially one political entity to essentially hijack an entire election,鈥� he said.

Ambiguity in election certification laws is a problem in several swing states across the country, including others where local officials have debated whether to certify recent elections, according to a review by Informing Democracy, a nonprofit that studies election administration. While the states鈥� laws typically say local officials 鈥渟hall鈥� certify, they don鈥檛 often specify that they don鈥檛 have discretion to hold up certification, said Jenny Gimian, the organization鈥檚 director of election law research and senior policy counsel.

Arizona law says supervisors 鈥渟hall鈥� certify election results, and courts in the past few years have interpreted that to mean that they must do so. The latest court ruling doesn鈥檛 say supervisors have discretion; it just says that鈥檚 for the courts to decide鈥攏ot Secretary of State Adrian Fontes, who wrote a detailed interpretation of the supervisors鈥� nondiscretionary role in the latest version of the Elections Procedures Manual.

Informing Democracy suggests it鈥檚 best to make it as explicit as possible in the statutes that local officials don鈥檛 have discretion when finalizing election results. Arizona鈥檚 lawmakers have a different idea.

A bill from State Rep. Rachel Jones, a Republican from Tucson, would prohibit the attorney general from prosecuting supervisors who refuse to certify results. It passed the House and is awaiting a final vote in the Senate. Gov. Katie Hobbs, a Democrat, is unlikely to sign it.

Jones said during a February committee hearing that the bill was a direct response to the Cochise County supervisors鈥� case, and she believes challenging results during the certification process 鈥渇alls somewhere in their First Amendment right.鈥�

Arizona statute says that supervisors 鈥渟hall meet and canvass the election鈥� within 20 days of a general election, unless results from polling places are missing. Even then, they can postpone certification only up to six times. The terms 鈥渃anvass鈥� and 鈥渃ertify鈥� are both used in the statute, but they aren鈥檛 defined. They鈥檙e often taken to mean something similar: to finalize results.

The statute also says that supervisors must 鈥渄etermine鈥� the vote. But it doesn鈥檛 clarify what that means, and it鈥檚 silent as to what discretion, if any, supervisors have.

Until 2019, the Elections Procedures Manual simply outlined the statute, emphasizing the timeline for certification. But in 2019, Hobbs, who was then secretary of state, expanded that section, adding the word 鈥渘on-discretionary鈥� to describe the supervisors鈥� mandate.

鈥淭he Board of Supervisors has a non-discretionary duty to canvass the returns as provided by the County Recorder or other officer in charge of elections and has no authority to change vote totals or reject the election results,鈥� that edition of the manual said.

Her successor, Fontes, made more changes to the manual after GOP leaders and candidates pressured county officials to use the certification step to block the 2020 and 2022 election results. That update also said supervisors can鈥檛 鈥渄elay certifying the results without express statutory authority or a court order.鈥�

Fontes also added a line saying that if a county鈥檚 canvass isn鈥檛 received by deadline, the secretary of state must proceed with the state canvass without the votes of that county鈥攅ssentially threatening to disenfranchise a county鈥檚 voters if its supervisors don鈥檛 do their job.

, along with many others, in several lawsuits.

In December, when writing that county supervisors, when certifying results, have no authority to change vote totals, reject election results, or delay certifying. He also said that the secretary of state can鈥檛 exclude a county鈥檚 results from its statewide canvass.

鈥淭he Secretary has relied on the statute鈥檚 silence and interpreted it to preclude the Board of Supervisors from doing anything other than opening the returns and counting what they find,鈥� Blaney wrote. 鈥淏ut again, it is the Court鈥檚 role, not the Secretary鈥檚, to interpret.鈥欌��

Blaney said the appropriate time to determine the meaning of the provision is 鈥渙nce the issue actually arises in an election and is ripe for determination on specific, existing facts鈥濃�攊n other words, if supervisors actually refuse to certify an election on time and the question goes to court with results hanging in the balance.

Blaney鈥檚 ruling.

Part of the reason that the duty is nondiscretionary, Volkmer said, is that county officials have a tight timeline to finalize their results and send them to the Secretary of State鈥檚 Office, at which point they can be challenged in court during the contest period allocated in the law.

because he wanted to hear more testimony from residents who claimed that the voting machines weren鈥檛 properly accredited.

Hobbs, who was then secretary of state and governor-elect, sued to force the county to certify. Pima County Judge Casey McGinley heard the case on Dec. 1, 2022, and ordered the supervisors to meet to certify that same day. It was two business days before Hobbs鈥� Dec. 5 deadline to certify statewide results.

McGinley said during the hearing that the 鈥渘ondiscretionary duty鈥� language in the manual appropriately describes supervisors鈥� duties, 鈥渄oes not contradict the statute and it has the force of law.鈥�

Similarly, when considering Crosby鈥檚 first attempt to get the charges dismissed two years later, the that his vote on certifying the election was non-discretionary.

鈥淭he ordinary meaning of 鈥榮hall鈥� in a statute is to reflect a mandatory duty鈥� the court wrote at the time.

And by cutting into the secretary of state鈥檚 certification timeline, the judges said, Crosby鈥檚 delay 鈥渕ay amount to interference.鈥�

Alex Gulotta, Arizona director of All Voting is Local, said he still believes the law is clear that the board鈥檚 duty is ministerial. The process to resolving election disputes is through the formal court contests, not local certification, 鈥渟o it doesn鈥檛 become a political process,鈥� he said.

鈥淭hey haven鈥檛 been able to win in the courts,鈥� he said, 鈥渁nd they want to move an evidence-based process into the politically charged board of supervisors process.鈥�

Crosby is now again asking the court to dismiss the case on the grounds that the state didn鈥檛 provide evidence to support the conspiracy charge before trial. He also contends in court filings that the state has not explained which duty of the secretary of state he interfered with.

He also goes back to what he has been contending since the beginning of the Cochise saga: that the board鈥檚 job is not to rubber-stamp the results.

鈥淐learly, any reasonable supervisor, or any other person, would reasonably believe that the required canvassing and certification of the vote had to mean more than merely ignoring it and passing it on to the SOS,鈥� he wrote. 鈥淭hat is simply an absurd interpretation.鈥�

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