State Senate President Warren Petersen (R-Mesa) and Speaker of the House Ben Toma (R-Peoria) filed a Motion for Leave to File Brief as Amicus Curiae in the prosecution of Cochise County Supervisor Tom Crosby on March 8.
Crosby, along with Cochise County Supervisor Peggy Judd, was indicted by a grand jury in November 2023 for briefly delaying canvassing of the 2022 election in order to investigate the laws that were broken. Democratic Attorney General Kris Mayes charged them with the class 5 felonies of Interference With an Election Officer—even though they were in part administering elections themselves as officials—and conspiracy since they both voted together to delay the canvassing.
Attorneys Kory Langhofer and Thomas Basile said in Petersen’s and Toma’s proposed amicus curiae brief, “The Attorney General’s present campaign to convert her disagreement with fellow elected officials’ exercise of their statutory authority into a felony offense is inconsistent with controlling law, corrosive of democratic norms, and portends further weaponization of legal and judicial processes for political retribution.”
The brief focused on three issues.
First, “the state grand jury lacked jurisdiction to issue the indictment” since it is only authorized to handle certain types of offenses. While a county attorney could have brought the charges and convened a jury, neither occurred here.
Second, “[a]n election officer does not, as a matter of law or logic, ‘interfere’ with that election by exercising — or refraining from the exercise of — his statutory authority.” The brief said, “The Legislature consistently and systematically differentiated between internal offenses — that is to say, species of wrongdoing that attach specifically to public officers in relation to their statutory duties — and external wrongdoing perpetuated by private actors.”
Third, the brief argued that the Arizona Constitution requires a narrow reading of criminal statutes. It said that invoking a criminal statute against supervisors wades into questionable constitutional issues regarding the separation of powers since the supervisors’ “office itself is of constitutional origin.”
The brief explained, “The pending charges run roughshod over the stabilizing principles of sovereign immunity, ie., the source of legal immunities enjoyed by all governmental officers (including judicial officers) against civil and criminal liability for their official acts.”
County supervisors are treated like legislators in statutory construction regarding “legislative immunity,” so “the extent the canvassing of elections is a legislative function, legislative immunity shields officials from criminal liability arising out of legislative acts as explained in Defendant Crosby’s motion.”
The legislators warned that if the prosecution’s interpretation were accepted, former Maricopa County Recorder Adrian Fontes could have been prosecuted for attempting to mail ballots to all eligible voters in 2020. Then-Attorney General Mark Brnovich took him to court civilly and got it stopped.
The brief said, “The Court can and should bypass these complexities by infusing A.R.S. § 16-1004 with the commonsense connotation is context demands: the statute prohibits private actors from tampering with the mechanics of Arizona elections; it does not convert an election official’s decisions concerning when and how to exercise his statutory functions into felony offenses.”
Crosby filed a Notice of Claim of Unconstitutionality on last week, alleging that the primary statute used to indict him, A.R.S. § 16-1004(A), was unconstitutional since it was “unclear,” so “void for vagueness.”
He said, “[T]he phrase ‘at any election’ may be susceptible of multiple 26 meanings, thereby rendering it unclear (i.e., void for vagueness) whether the statute criminalizes only conduct that occurs prior to the polls closing at an election or whether it may also criminalize conduct that occurs for many weeks thereafter while the results of an election are being tallied, ascertained, canvassed, announced and/or challenged in court.” Citing case law, he said that criminal statutes are unconstitutional if they are found to be “so vague as to fail to give a citizen notice of what conduct on his part will lead to its violation.”
At about the same time, prosecutors filed responses to Crosby’s and Judd’s pleadings opposing the indictments.
Judd responded with a Reply to State’s Response to Defendant Judd’s Motion to Remand on March 11. In it, her attorney Kurt Altman asserted that prosecutors failed to instruct the grand jury that Judd’s choosing to take the Fifth Amendment and not testify should not be used against her.
Instead, Judd said prosecutors instructed her of that right in front of the jurors and failed to tell the jurors not to make any determination about that choice. Judd was “ deprived of a substantial procedural right,” and since “[i]t cannot be said, beyond a reasonable doubt, that she was not prejudiced by that deprivation, therefore, remand is warranted,” the brief said.
Next, the reply accused prosecutors of failing to inform the grand jury of legislative immunity. Prosecutors claimed that canvassing was merely a “ministerial act,” so it was not protected by that doctrine. However, the reply contended, “If, as the State wrote, ‘the act of canvassing the results was a purely ministerial act that required nothing more than adding the vote totals and transmitting them to the Secretary of State,’ then why does the Board have to add the task to the agenda, have a public meeting, and vote to get it done?”
Judd said two witnesses who testified to the grand jury provided mostly “opinions and speculation,” denying her a “substantial due process right to a fair and impartial Grand Jury presentation.” Cochise County Attorney Brian McIntyre, an election fraud denier who pleaded guilty last year to a DUI but refused to resign, and Special Agent William Knuth from the Attorney General’s Office provided “incredibly slanted” testimony, Judd said. She cited their lack of firsthand observation of the events, saying they merely observed “public meetings or public documents.”
Judd said, “Misleading testimony, speculative and opinion testimony, failure to simply mention legislative immunity, and failure to properly advise regarding the Fifth Amendment all contributed to an unfair and misleading Grand Jury presentation against Ms. Judd. The State not only failed to properly assist the grand jury in its investigation, but deprived Ms. Judd of her substantial procedural due process rights.”
A trial has been set for August 15. The Cochise County Record is compiling all of the pleadings here.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Warren Petersen” by Gage Skidmore. CC BY-SA 3.0. Photo “Ben Toma” by Ben Toma.
