Update: A judge on Thursday afternoon ordered Cochise County to certify its election results, which it quickly did — becoming the latest county to back down in the face of legal action. This post is from earlier Thursday.
It’s a hypothetical laden with liberal schadenfreude — a veritable mess-around-and-find-out moment: the idea that Republican election deniers in Arizona could cost their own party seats they rightfully won, including a congressional seat, by refusing to certify their results.
It’s very unlikely to come to pass. But exactly how the situation is resolved could be an important test of an American election system under duress, as GOP officials increasingly try to thwart it through the certification process.
Here are the basics of what’s happening (and for more, see Yvonne Wingett Sanchez and Isaac Stanley-Becker’s latest report):
Two GOP supervisors in Cochise County, Ariz., have blown past the deadline for certifying their county’s election results. One of them acknowledged this week that it was effectively a protest not of that county’s results, but of the election in Maricopa County, home to Phoenix. (Printer glitches plagued the process in Maricopa County on Election Day, but there is no evidence of malfeasance or an incorrect count.)Secretary of State Katie Hobbs (D) filed a lawsuit this week seeking a court order to compel the county to certify its results. She said she needs that before she can canvass the state’s results, which she must do by Dec. 8 at the latest.Hobbs, who is also governor-elect, indicated that if Cochise County doesn’t certify, she “will have no choice but to complete the statewide canvass by December 8 without Cochise County’s votes included.”As Bloomberg News and some others reported Wednesday — and as some Democrats have gleefully noted — not including heavily Republican Cochise County’s votes in the totals would cost the GOP key seats. It would flip not only the race for state schools superintendent to Democrats, but also the 6th Congressional District, which Republican Juan Ciscomani won narrowly.
If that seat were to go to Democrats, Republicans’ expected 222-213 majority would be shaved to 221-214, and the already-difficult math for would-be House speaker Kevin McCarthy (R-Calif.) to win that post would become even more perilous. And Republicans would have their own election deniers to blame.
While it’s a tantalizing possibility if you’re a Democrat — for obvious reasons — nobody should hold their breath, and people should be careful what they wish for. It’s also worth asking what would happen if officials like those in Cochise truly refused to certify, and someone like Hobbs were forced to make that decision.
For now, the situation appears as though it might be winding down. One of the Republican county supervisors, Peggy Judd, has now indicated the county will ultimately certify its results.
“We are gonna certify it,” Judd told the Daily Beast on Wednesday. She added that “we’re just holding off as long as we can.”
Even before Judd said that, there were compelling reasons to believe the situation wouldn’t get to that point and the system is resilient enough to prevent it.
For one, a court order stemming from Hobbs’s lawsuit could compel the supervisors to act, and such legal action has succeeded before in similar circumstances. The New Mexico Supreme Court earlier this year ordered Otero County commissioners to certify their primary results. Luzerne County, Pa., certified its results Wednesday in the face of a lawsuit. And supervisors in Mohave County, Ariz., certified their results this week after flirting with doing what Cochise County is doing. The Republican board chairman said he voted reluctantly to certify, because he feared being charged with a felony if he didn’t.
Potential criminal penalties could also motivate the Cochise situation getting resolved. Former Arizona attorney general Terry Goddard (D) and former Maricopa county attorney Rick Romley (R) sent a letter to state and county prosecutors this week recommending a criminal investigation. Arizona law makes it a low-level felony for an elections official to “knowingly” fail to perform their duty.
The effort is also rather amateurish. The Republican county attorney has declined to represent the GOP supervisors in court, leading them to vote to hire an attorney affiliated with the infamous “Cyber Ninjas.” Except that attorney turned them down, leaving them without legal representation ahead of a hearing Thursday.
If we’re taking Judd at her word, the county will ultimately vote to certify, possibly as soon as Friday. But what if supervisors held out?
It’s a situation we’ve been talking about since before the 2022 election, because the certification process is the most readily available leverage for election deniers. And we’ve seen them attempt to wield it.
“Arizona’s never been in this situation before, nor have many other states,” said Tammy Patrick, the chief executive officer for programs for the National Association of Election Officials, and a veteran of Arizona elections.
Basically, there are several ways the courts could compel the officials to certify, including via a lawsuit brought by an aggrieved candidate, by voters (one such claim has already been filed) or by those who contract with the county for their elections and would be left without certified elected officials. If the court does compel certification, officials like Judd would truly risk jail time by holding out.
It’s also worth noting that Hobbs wasn’t quite so direct as some of the headlines have suggested. While she said she would have to canvass without Cochise County’s votes, she doesn’t specifically say those would be the final results, and it’s not clear she even could.
Patrick noted that election results have sometimes been certified before all the results were in, often due to natural disasters such as a hurricane.
Even post-certification results are subject to legal challenges, which someone like Ciscomani could bring. And Arizona law says that while Hobbs must canvass within 30 days of the election (i.e. by Dec. 8), it also says she must wait “until canvasses from all counties are received.” That would present a conflict between the deadline Hobbs referenced and her legal duty to have a complete canvass.
“I would expect the trial court will order Cochise to certify quickly,” said election-law expert Rick Hasen. “And I expect that if Hobbs certified the results without Cochise, she’d be sued herself and there would be an order that would end up including the Cochise results.”
Hobbs also has reason to gesture in this direction, because it could lead Republicans to pressure Cochise County officials.
Hobbs spokeswoman Sophia Solis reasserted to The Washington Post that Hobbs “will have no choice but to proceed with certification in accordance with the law” if Cochise doesn’t certify. But she didn’t directly address whether Hobbs would actually feel forced to make Democrats the winners in the 6th District and for state schools superintendent if it came to that.
While some Democrats might cheer the idea that this could cost the GOP a seat — however speculative and unlikely that is — they should really be careful what they wish for. That’s because there’s also the matter of what precedent it would set. If a refusal to certify can swing a race, what’s to stop other local officials from gaming the system when it benefits them — provided they’re willing to shoulder the potentially significant personal costs to do so? (Election-denier Kari Lake, the GOP candidate who lost to Hobbs, is urging people to be willing to go jail.)
In most cases, as in Cochise County, it would probably hurt their own side, because GOP election officials tend to preside over Republican areas. But that’s not always the case. We saw in 2020 how Republicans could withhold certification in heavily Democratic Wayne County, home to Detroit, which has an evenly divided elections board. (They ultimately relented.)
We probably will never get to the point where we’ll find out what would happen if Cochise County officials steadfastly refused to certify. But it’s getting to the point where we need to consider what that hypothetical could mean if applied elsewhere. Some states such as Colorado have passed laws seeking to deal with such a legally untested situation, and some states empower other officials to step in an certify the results if need be. But Arizona isn’t one of them, according to Daniel I. Weiner of the Brennan Center for Justice at New York University law school. And the ploy is so novel that it’s ripe for exploitation.
“It does open up this sort of playbook to play out not just in 2024,” Patrick said, “but also beyond.”