Cochise County Supervisor Tom Crosby can’t escape being tried on charges of election interference and conspiracy in connection with his refusal to certify the 2022 election results, the state Court of Appeals ruled Tuesday.

Judge Paul McMurdie, writing for the unanimous court, acknowledged that elected officials do have a certain “legislative immunity” for votes they take.

But the appellate judge said that under Arizona law, the formal “canvass” of the vote is strictly an administrative action, one in which supervisors have no discretion. And that, McMurdie wrote, means that Crosby cannot use a claim of immunity as a shield.

The appellate judges also rejected Crosby’s claim that anything he did, or did not do, did not interfere with the duties of the secretary of state to finalize the election results.

It is true that the other two members of board eventually certified the results by Dec. 1, 2022 after being ordered to do so by a judge. And that allowed Katie Hobbs, then secretary of state, to perform a statewide canvass four days later.

McMurdie said, however, that still may have interfered with Hobbs completing her task. And that, the appellate judge said, is a question for the jury.

Tuesday’s ruling is unlikely to be the last word. Attorney Dennis Wilenchik said he plans to seek Supreme Court review.

None of this affects the other two supervisors.

Fellow Republican Peggy Judd pleaded guilty in October to a single misdemeanor county of failing to perform her duties as an elected official. She paid a $500 fine and was placed on unsupervised probation for 90 days.

Democrat Ann English never was charged as she was the lone supervisor who sought to certify the results in the first place.

The facts behind the charges against Crosby go back to before the 2022 election when board members discussed doing a hand count of ballots. A judge barred that action and the election took place on Nov. 8.

Despite that, Crosby and Judd filed suit against county Elections Director Lisa Marra seeking to proceed with the hand count and ordering her to turn over the ballots to the county recorder.

That lawsuit eventually was dismissed.

But the supervisors then didn’t meet the Nov. 28 deadline for all counties to certify their elections. Instead they voted to delay, saying they wanted to hear arguments about whether the voting machines were properly certified. All that came over the objections of English who said the board had all the information it needed and that certification was a non-discretionary duty.

It took a court order to force the board to act, with Judd and English voting to certify; Crosby did not attend the emergency session.

Attorney General Kris Mayes got a state grand jury to indict Crosby and Judd in late 2023.

In seeking to have the charges thrown out, Wilenchik called the indictment “vindictive and in retribution” because his client and Judd, both Republicans, said they had the right to get some questions answered before they certified the results of the 2022 election. He said the indictment was “based on a broad reading of the statute that was never written that way or intended that way.”

“What we have here is a rogue prosecutor and a rogue prosecution,” Wilenchik said, who was seeking to read into the motives of the pair who voted to delay formal certification.

That argument did not impress Maricopa County Superior Court Judge Geoffrey Fish, who refused to toss the indictment, leading to Tuesday’s ruling by the Court of Appeals.

McMurdie noted that legislative immunity does exist not only in common law but is spelled out in the Arizona Constitution.

It says “no member of the legislature shall be liable in any civil or criminal prosecution for words spoken in debate.” And that extends to other legislative bodies, like the board of supervisors.

But the appellate judge said the key here of whether immunity applies is whether the action at issue constituted “traditional legislation,” things like using their discretion to set policies.

That, said McMurdie, is not the case here.

“Crosby’s duty to canvass the election (under state law) was not discretionary,” the judge wrote.

He pointed out the law says the supervisors “shall meet and canvass the election not less than six days nor more than 20 days following the election.” And the only exception is when results are missing, something that had not occurred here.

“All Crosby wanted was some answers for his constituency,” Wilenchik told Capitol Media Services on Tuesday. But McMurdie, in the appellate court ruling, said that’s not what is shown in the evidence.

“Crosby himself admitted in his grand jury testimony that he was unaware of any issues with the election results submitted by the Cochise County Elections Department that would justify postponement,” the judge wrote.

Wilenchik on Tuesday also noted the state certification was not delayed.

“So there was no interference,” he said. “And the act of continuing (the vote to another day) was a legislative act fully immune which this court declined to address and, to the extent it did, it did so erroneously.”

McMurdie, however, said there is nothing in canvassing a vote that involves making policy, for which  there is immunity, versus simply implementing policy and the law.

“Canvassing the election results involves adding write-in and early votes to the results from the vote tabulating equipment,” he wrote.

“Such a mathematical undertaking does not require the board to make multiple discretionary decisions or balance goals,” the appellate judge continued. “Instead, the board had to follow the clear instructions outlined in the statute and the court’s order, which compelled it to complete the canvass and gave no alternate action.”