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.