Published On: July 9th, 2024Categories: Arizona News

The fate of a GOP-backed ballot measure that would allow local police officers to arrest migrants is now in the hands of a Maricopa Superior Court judge who heard arguments Monday about whether the proposal is constitutional and can be presented to voters in November.

A quartet of Latino and immigrant advocacy organizations are heading a lawsuit aimed at preventing the legislative referral, titled the “Secure the Border Act,” from ever making it onto the ballot. 

The groups allege that the referral violates a mandate in the Arizona Constitution known as the Single Subject Rule that requires ballot measures to stick to one topic. The act includes multiple provisions that make it a state crime to cross the border illegally, punish undocumented Arizonans who submit false documentation to apply for jobs or public benefits and create an entirely new class of felony offense, with harsh prison sentences, for people who knowingly sell fentanyl that ends in someone else’s death.

Supporters of the act claim it satisfies the single-subject rule because it responds to the “harms” caused by the “unsecured” southern border. 

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On Monday, attorneys for the immigrant advocacy groups and GOP legislative leaders, who have taken up a defense of the act after Arizona Attorney General Kris Mayes declined to, made their cases in court. Judge Scott Minder said he would aim to issue a ruling on the matter by the end of the week, mindful of the need to allow time for an appeal before ballots are set to begin printing in the state’s most populous county on Aug. 22. 

Critics: Too many subjects renders act unfit for voters

Democratic attorney Andy Gaona, representing the Phoenix Legal Action Network, Poder in Action and the Florence Immigrant and Refugee Rights Network, lambasted the act as a “patchwork” of provisions pulled from several other bills that each failed to win a legislative majority on their own. Republican lawmakers ensconced revised versions of five bills into the act that were either vetoed by Hobbs or failed to earn the support of the entire legislature. 

Gaona criticized that as precisely the type of logrolling the Arizona Constitution’s single subject requirement seeks to prevent. Logrolling is a political strategy in which multiple different proposals are wrapped in one to recruit votes and ensure its ultimate passage. 

And while a multi-pronged proposal doesn’t, by itself, run afoul of the state constitution, opponents say the problem with the act is that it spans very different subjects. The provisions penalizing the unlawful entry and behavior of undocumented Arizonans, Gaona said, have nothing to do with the provision criminalizing the lethal sale of fentanyl. 

“Separate and apart from these new state law criminal offenses that turn on an individual’s unlawful entry to and presence in the United States, and how those individuals can and cannot seek employment and public benefits, HCR2060 also creates a new drug crime that has absolutely nothing to do with an individual’s immigration status,” he said, referencing the act’s underlying legislation. 

Minder pressed Gaona on why he should view the act through the lens of addressing unlawful immigration, as critics have proposed, instead of accepting the argument from GOP leaders that all of the act’s provisions fall under a general theme of addressing the “harms” caused by the “unsecured” southern border. Gaona responded that the court should consider the act’s practical effects, and not how Republican lawmakers frame it. 

“If you look at the substance, all of the provisions…save for the lethal fentanyl provision, relate to someone’s immigration status. And so, in our view, that is the actual subject of the measure,” he said. 

Gaona added that the legislature has sought to get away with an overly broad theme in the past and failed. In 2021, the Arizona Supreme Court struck down an attempt by the GOP majority legislature to embed dozens of unrelated bills, including mask mandates and critical race theory bans, into the state budget. Republicans at the time assured the court that the issues were relevant because they were all funded by the budget. 

But Minder was skeptical of Gaona’s argument, pointing out that, while the court decided that the provisions in that case were unrelated to the K-12 budget, it never ruled that simply using the budget as a subject was too broad to pass constitutional muster. 

Minder noted that Republican lawmakers included a legislative findings clause in their ballot referral to tie its many provisions together, and said that reasoning alone might set the act apart from the 2021 violation. 

“We’re not talking about things crammed in —  if you take what the legislature has had to say as being true,” he said. “It seems to me that the legislature, at least as they’re offering, has identified some of the key issues and key concerns that are raised with what they deem to be the unsecured border.”

Gaona, however, warned Minder that greenlighting the act based on how lawmakers justify their own proposals would open the door to political “mischief.” 

“What the court can’t, and shouldn’t, do is simply defer to the legislative findings, because if that were the rule, then the legislature could just make findings about anything in any piece of legislation,” he said. 

Attorney Jim Barton, representing Living United for Change, an immigrant rights advocacy organization that was a vocal opponent of the referral while it made its way through the legislature, said that, even without the highly-contested fentanyl provision, the act would still be unconstitutional. 

And, he added, the court is not authorized to simply remove that provision to help it comply with the single-subject rule. Previous case law demands that the entire ballot measure be thrown out if it’s proven to be unconstitutional because the courts have no way of truly determining what the actual subject of a proposal was intended to be. 

Barton said that, while the fentanyl provision is the most egregious provision, even the parts governing how to punish undocumented Arizonans and unlawful border crossings are too different to fall under the same subject. 

“Talking about a person’s ability to have public benefits and talking about a person’s ability to enter into a contract – those are different ideas than a person crossing the border,” he said.  

Arizona voters and the state legislature, Barton said, have a right to determine how to regulate public benefits and address the fentanyl crisis. But lawmakers are prohibited from putting voters in unfair quandaries by sending them a referral that forces them to consider issues that are best split up into separate proposals, he said. 

“You can’t make them choose, you can’t say if you want to regulate fentanyl this way, you’ve got to regulate library cards this way,” Barton said.

GOP leaders: the single subject is ‘smuggling’ across the border

Kory Langhofer, an attorney representing Senate President Warren Petersen and House Speaker Ben Toma, who both made the act a legislative priority, said that opponents are interpreting the single-subject rule too narrowly in order to disqualify the act from the ballot. 

The state Constitution, he said, doesn’t require the provisions in a ballot measure to be related to each other. To satisfy the rule, it’s enough that the content of the proposal aligns with an overarching topic. 

Langhofer said the act is best interpreted as addressing unlawful smuggling across the state’s southern border. 

“The way I think about it is smuggling at the border,” he said. “Smuggling includes humans, and it includes drugs.”

Minder, however, noted that such an explanation isn’t included in the act, which defends its provisions as addressing the “harms” caused by the southern border. He questioned Langhofer on the concern voiced by critics that approving the act would effectively empower lawmakers to use broad themes to bypass the single subject rule. 

Langhofer replied that he felt the principle of the argument was valid, but said that while future lawmakers may choose to use that strategy, the act is not a product of such an attempt. It conforms to a specific topic, he said, and concerns a limited amount of issues. 

“You could define something in such a nebulous way that nothing would not relate to it,” he said. “I don’t think we have that here. The problem of the southern border is a broad topic. There’s a lot that flows from that, but it is not limitless.The legislature is allowed to pass broad reform packages, but not limitless.” 

Minder grilled Langhofer on the fentanyl provision, which includes a caveat that allows those charged under its penalties to mount a legal defense based on the claim that the drug and its precursor chemicals were legally imported into the U.S. 

The caveat has been widely criticized as useless, as it’s virtually impossible to determine where individual fentanyl pills were sourced from. Barton argued that it was instead added as a last-minute amendment so that the fentanyl provision could looped in with the rest of the act under the umbrella of issues at the southern border.  

Langhofer rebutted that argument, saying that, even without the affirmative defense amendment, the fentanyl provision is still sufficiently related to concerns over the “unsecured” border. 

“The legislature and the voters are entitled to say, ‘Look, we’re aware of what’s happening in our community.’ This is a really pernicious problem of people dying because of unlawfully smuggled fentanyl,” he said. “We know that relates to the border — you don’t have to be a DEA agent to appreciate that.”

And it doesn’t matter, Langhofer said, that the affirmative defense will likely rarely, if ever, be used in court. 

“The people who are prosecuted for this probably will not have that defense available to them factually,” he said. “But doctrinally it does not matter whether it would be used often or not. Because it is there and it does tie us to the general topic of illegal smuggling.” 

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