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

But he said that under ÃÛèÖÖ±²¥ law, the formal “canvass’’ of the vote is strictly an administrative action, one in which supervisors have no discretion. That means Crosby cannot use a claim of immunity as a shield, McMurdie wrote.

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

The other two members of the ÃÛèÖÖ±²¥ County Board of Supervisors eventually certified the results by Dec. 1, 2022, after being ordered to do so by a judge. That allowed Katie Hobbs, then secretary of state, to perform a statewide canvass four days later.

But McMurdie said that still may have interfered with Hobbs completing her task. That is a question for the jury, he said.

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

The case so far

For her role, Crosby’s fellow Republican Supervisor Peggy Judd pleaded guilty in October to a single misdemeanor count of failing to perform her duties as an elected official. She paid a $500 fine and was placed on unsupervised probation for 90 days.

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

The case against Crosby goes back to before the 2022 election, when board members discussed doing a hand count of ballots. A judge barred that action.

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, the two Republicans voted to delay, saying they wanted to hear arguments about whether the voting machines were properly certified. 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.

Duty was mandated

Democratic 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 Crosby and Judd said they had the right to get questions answered before they certified the election results. He said the indictment was “based on a broad reading of the statute that was never written that way or intended that way.’’

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

McMurdie noted that legislative immunity exists in common law and is spelled out in the ÃÛèÖÖ±²¥ Constitution, which says, “no member of the legislature shall be liable in any civil or criminal prosecution for words spoken in debate.’’ That extends to other legislative bodies such as the Board of Supervisors.

But the appellate judge said the key here to if immunity applies is whether the action at issue constituted “traditional legislation,’’ such as using discretion to set policies.

That is not the case here, said McMurdie.

“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.’’ The only exception is when results are missing, something that had not occurred here.

“Crosby himself admitted in his grand jury testimony that he was unaware of any issues with the election results submitted by the ÃÛèÖÖ±²¥ County Elections Department that would justify postponement,’’ the judge wrote.

Wilenchik pointed out Tuesday that the state certification was not delayed.

“So there was no interference,’’ Crosby’s attorney 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. 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.’’