On Tuesday, the Cochise County Supervisors voted to ask U.S. Attorney General Pam Bondi to investigate the certifications and laboratory accreditation of the county’s voting systems ahead of the 2022 election.
In a letter from Cochise County Board Chairman Frank Antenori, the board requested that “information from the United States Department of Justice concerning the accreditation of the voting system test laboratories (VSTLs), the certification of ES&S electronic voting systems, and the use of engineering change orders during the 2022 Arizona general election.” He added that “these matters present material statutory and constitutional questions that relate directly to the integrity of the electoral process in Arizona.”
Antenori also observed that the Board has “a constitutional and statutory obligation to ensure compliance with election law,” citing Article 7, Section 7 of the Arizona Constitution that governs the tabulation of “legal votes.”
He explained that the United States Election Assistance Commission (EAC) “has invoked 52 USC § 20971(c)(2) to argue that accreditation remains valid indefinitely absent formal revocation. Respectfully, the plain text of the statute requires renewal on a biennial basis.”
The Chairman went on to point out that the accreditation had lapsed in March 2020 and stated, “The EAC’s interpretation appears inconsistent with both the statutory language and congressional intent.”
In particular, Antenori observed that A.R.S. 16-442 (B) requires the following: “Machines or devices used at any election for federal, state or county offices may only be certified for use in this state and may only be used in this state if they comply with the Help America Vote Act of 2002 and if those machines or devices have been tested and approved by a laboratory that is accredited pursuant to the Help America Vote Act of 2002.”
The accreditation question led two Republican supervisors to delay the county’s election certification in 2022 until they were ordered to do so by a judge. A state grand jury later indicted the two supervisors on charges brought by Arizona’s Democrat Attorney General Kris Mayes. Supervisors Tom Crosby and Peggy Judd, both Republicans, faced charges of conspiracy and interference with an elections officer. Judd pleaded guilty while Crosby awaits trial.
Crosby was indicted by a state grand jury on conspiracy and interference with an election officer. Background on the Cochise County supervisors case, here: https://t.co/yFJZvhiZA0
As reported by VoteBeat’s Jen Fifield, the letter to AG Bondi was proposed by Crosby after he was reelected last year. The executive session in which the letter was discussed was closed to the public; however, Fifield reported that Crosby attached a 30-page document to the meeting minutes, providing the board with additional details and even a piece of grand jury testimony from his case.
On Monday, Fifield reported that a judge rejected Crosby’s request to delay his case, and his trial date will still be set on Sept. 22.
Cochise County approved the election results, despite their hand count audit failing to count nearly 60 percent of the required number of ballots.
The Cochise County Board of Supervisors accepted and certified their canvass during a brief special meeting on Wednesday.
The county’s election director, Marisol Renteria, presented the canvass alongside Joe Casey. Casey said that Secretary of State Adrian Fontes and Cochise County Attorney Brian McIntyre gave election officials permission to certify the election despite the incorrect hand count total.
“On November 19, it was brought to our attention that there was an incorrect calculation done on the number of hand counts for early voters but at this time we had contacted the secretary of state and county attorney’s office and we’re in agreement that we are ready to certify the election,” said Casey.
Casey noted that the discrepancies found within their undercounted hand count audit were within the “acceptable margin of error.” Indeed, Fontes’ office has marked the status of the county’s hand count as “completed,” having discrepancies “within the acceptable margin.”
None of the supervisors questioned or challenged the audit undercount, contributing to the brevity of the meeting at just seven minutes long.
My Herald Review first reported on the county’s failure to audit all the required ballots.
Hand count audits ensure the accuracy of the machine ballot counting.
The report from the county’s election director, Marisol Renteria, showed that the county audited only 200 ballots rather than the nearly 500 required. State law requires auditing one percent of the total number of cast early ballots. Cochise County based their one percent off of the initial batch of early ballots tabulated on Election Day, rather than the total number of early ballots cast.
Casey noted that the county experienced other issues during the election as well. This included vote center wait times reaching well over two hours, a bomb threat on Election Day at vote center two, and a power outage on November 13 lasting about five hours.
“We did deal with some challenges, some abnormalities and some incidents throughout the last few weeks,” said Casey.
Supervisor Peggy Judd — who made the motion to accept the results — thanked the elections staff, and added that they weren’t at fault for the election issues, including the recently-discovered audit undercount.
“No one can be blamed, it was just something that was going to happen. It would have happened to anyone. I’m glad it wasn’t me,” said Judd.
Judd and fellow supervisor Tom Crosby faced indictments for felony-level election interference and conspiracy over their delaying certification of the 2022 election results. Judd and Crosby maintained concerns over election equipment malfunctions that occurred and desired a complete audit of in-person election day ballots.
Last month, Judd pleaded guilty to election interference and entered into a plea deal for a misdemeanor, avoiding the felony punishments: 90 days’ minimum unsupervised probation and a $500 fine.
Supervisor Ann English commended the elections staff for finding solutions to the problems presented during the election. English remarked that this time around, the county had “an efficient, effective election.”
This election, the county had 82,200 registered voters, with a 72 percent voter turnout (almost 60,000 voters).
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The Arizona State Bar Cochise County Attorney declined to punish Brian McIntyre last week for working against his own county supervisors, and the bar ultimately dismissed the complaint against him. However, the state bar did issue a public admonition against him, according to the Arizona Daily Independent.
The state bar dismissed the complaint because, according to their statements, they felt that lawyer discipline was achievable through “instructional comment,” and because McIntyre had completed a client confidentiality course. The bar admonished McIntyre for airing out his concerns and the county supervisors’ confidential information publicly instead of the more appropriate venue of an executive session.
During a 2022 public meeting in which the Cochise County Board of Supervisors was discussing a post-election hand count audit, McIntyre revealed that he’d advised the board against the audit.
After the board was sued over the audit, McIntyre then sent a letter to the plaintiffs’ counsel disclosing a list of laws he believed his clients had potentially violated.
Former Pima County Supervisor Ally Miller and State Representative Alexander Kolodin had filed the complaint against McIntyre late last year for those actions. The pair alleged that McIntyre violated attorney-client privilege with his remarks during that 2022 public meeting, and that McIntyre had worked against his clients with the letter by providing legal analysis and fodder for the media against his clients.
The controversy escalated amid the state bar investigation after an uncovered document revealed that McIntyre had apparently colluded with Attorney General Kris Mayes and Secretary of State Adrian Fontes against his county supervisors.
The document was a letter from McIntyre to Mayes, in which the county attorney had asked the attorney general to retract an opinion set by her predecessor, Mark Brnovich, on expanded hand counts. McIntyre sent the letter amid an active appeal by his clients (the county supervisors) to conduct those hand counts.
“Key to our initial efforts was determining the readily apparent potential conflicts with pursuing a prosecution that might result from that investigation. While I remain satisfied that legally we could move forward if evidence warranted doing so, practically it would create substantial issues for this office’s relationship with the Board moving forward,” wrote McIntyre. “Unfortunately, recent events outside the office may also create the appearance that any prosecution is motivated by less than just concerns.”
After the state bar began investigating McIntyre last December, Mayes brought down indictments reflecting felony-level election interference and conspiracy charges against Cochise County Supervisors Peggy Judd and Tom Crosby.
McIntyre would later testify to the grand jury on the controversial 2022 general election audit.
Several months after struggling with his county supervisors over the 2022 audit, McIntyre was arrested and pleaded guilty to an extreme DUI in early 2023. An extreme DUI applies to blood alcohol content (BAC) levels over .15 percent (the Arizona legal limit is .08 percent); McIntyre had a .2 percent BAC.
The arrest video showed McIntyre was refusing to believe law enforcement’s breathalyzer results.
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