What to watch as Arizona moves to certify 2022 election amid GOP pushback

A Republican-led county in Arizona is threatening to hold up the state’s certification of the 2022 midterm results after Cochise County failed to meet a Monday deadline to certify its election results.

While all of the counties in the Grand Canyon State were required to certify their results by Monday, Cochise County’s refusal to do so has sparked legal action from Arizona Secretary of State Katie Hobbs (D), who won her election to be the state’s next governor, and from another group, the Arizona Alliance for Retired Americans.

As the battle between Arizona’s top officials and some Republican holdouts continues, here’s what to watch in the process to certify the state’s full election results.

Hobbs’s lawsuit against Cochise County

Hobbs filed a lawsuit against the Cochise County Board of Supervisors on Monday after they voted 2-1 to delay certifying the election results until Friday, defying a major deadline. 

While every other county in Arizona certified their election results by the Monday deadline, top officials in Cochise County, including Supervisors Tom Crosby (R) and Peggy Judd (R), voted to delay the county elections certification, while Supervisor Ann English (D) voted in favor of the certification proceeding.

The lawsuit noted that the board of supervisors had already delayed certifying the election results once before during a meeting earlier this month after its members heard “statements from various conspiracy theorists — known for filing spurious lawsuits before the Arizona courts — who claimed that the vote tabulation equipment used in Cochise County was improperly certified under state and federal law.”

Hobbs’s lawsuit requested that the board of supervisors be compelled to meet by Thursday to certify the election results so the Arizona Democrat could conduct the statewide canvass in time. A spokeswoman for Hobbs said they asked the court for the case to be taken up in an expedited manner. 

“The Secretary of State’s Office provided supporting documentation that confirmed Cochise County’s election equipment was properly certified. The Board of Supervisors had all of the information they needed to certify this election and failed to uphold their responsibility for Cochise voters,” Sophia Solis, the spokesperson, said in an email. 

“The Secretary of State will fulfill her statutory responsibility to canvass the 2022 General Election. Arizona voters should know that when they cast their ballot, the Secretary of State will do everything in her power to make sure their vote is counted and their voice is heard.”

The Dec. 5 statewide canvass deadline

Cochise County’s refusal to certify their election results risks delaying the statewide canvas deadline, originally set for Dec. 5 and which can only be pushed back as far as Dec. 8. All counties need to certify their elections before the statewide certification can move forward.

Attorneys for Hobbs noted in the lawsuit that certifying the election results in the county were critical given that the state could not perform required recounts in several key races, including the attorney general race, until after Hobbs performed the statewide canvass. 

They also said that should Cochise County fail to certify their election results on time, they could be left out of the statewide canvass.

“Absent this Court’s intervention, the Secretary will have no choice but to complete the statewide canvass by December 8 without Cochise County's votes included. Thus, the Board’s inaction not only violates the plain language of the statute, but also undermines a basic tenet of free and fair elections in this state: ensuring that every Arizonan’s voice is heard,” the lawsuit said.

That could pose a risk in Arizona’s 6th Congressional District, where Republican Juan Ciscomani has already been projected the winner against Democrat Kirsten Engel by just over 5,000 votes, noted former Maricopa County officials in an op-ed in The Arizona Republic. Cochise went overwhelmingly for Ciscomani, but a refusal by the county to certify its results could possibly jeopardize those results.

“We are not sure how to say this so everyone understands. Not certifying these results is a test case for 2024. If BOS [board of supervisors] does not certify this what makes them certify their replacements in 2024?  We’d love a Congresswoman Engel but not at the cost of democracy,” the Cochise County Democratic Party tweeted on Tuesday.

Possible future legal challenges

English, the Democratic supervisor, told The Hill in an email on Tuesday that Judd and Crosby had not discussed next steps at a board meeting following Hobbs’s lawsuit. Crosby and Judd did not respond to requests for comment.

Experts say it’s possible that there could be a countersuit against Hobbs, but they say such legal action is likely to be considered frivolous.

“This should be a slam-dunk case,” said Jared Davidson, an attorney with Protect Democracy. 

“The board's duties to certify are paradigmatic examples of a nondiscretionary duty, and the special action procedure is designed specifically to seek relief from government officials to act in a way where statutes give them no discretion whatsoever,” he continued. “So I fully expect that lawsuit to be successful because there can really be no serious question that what the board is doing here is an abject failure to abide by their explicit statutory duties.”

Should the supervisors continue to refuse to certify the election, criminal charges could ensue. And while experts say they’re relieved that most counties and candidates across the country have decided to accept the election results and certify them, some suggest what’s happening in Cochise County is a serious risk for democracy.

“I think what's worrisome probably going forward is this all seems a little bit like a dress rehearsal, where there are election denial people on the right who, even in the — as far as I can tell — total absence of any evidence of voter fraud or systematic voter fraud at least, they're trying to figure out ways to stall or thwart what are otherwise perfectly legitimate elections,” said Michael Kang, a professor at Northwestern University’s Pritzker School of Law.