Latino advocacy group challenges GOP’s border ballot proposal in court

Democratic attorney Jim Barton speaks, during a June 5 news conference in Phoenix, about Living United for Change's lawsuit challenging a GOP ballot proposal that would give Arizona law enforcement unprecedented authority to enforce federal immigration law. Photo by Gloria Rebecca Gomez | Arizona Mirror

A Latino advocacy group has filed a lawsuit challenging a GOP ballot proposal that seeks to give Arizona unprecedented authority to enforce federal immigration law, claiming that it’s unconstitutional and should not be considered by voters. 

The legal challenge was launched just a day after the Republican majority in the state legislature awarded  final approval to the plan, dubbed the “Secure the Border Act,” and voted to send it to the November ballot. Living United for Change, a pro-immigrant organization that has spearheaded public criticism of the act, alleged in its lawsuit that the ballot referral should be struck down because it violates the strict guidelines in the Arizona Constitution that govern how ballot measures must be written. One of those rules mandates that ballot measures focus on a single subject. 

The act aims to enshrine a bevy of new criminal penalties into state law. If approved by voters in the fall, the act would make it a state crime for migrants to cross the border anywhere but at an official port of entry, and first time offenders could face jail sentences of up to 6 months. It would also make it a class 6 felony for undocumented people already living in Arizona to submit false information to apply for jobs or public benefits. And it would create an entirely new class of felony — with harsh prison sentences — to punish people convicted of knowingly selling fentanyl that causes someone else’s death. 

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Jim Barton, a Democratic attorney representing LUCHA, said that while the proposal is “defective” for several reasons, including ignoring a state mandate to identify a funding source and for unlawfully usurping federal authority, the single-subject rule is the only criteria under which the act can be taken to court before voters decide its fate. 

“It enhances and embraces more than a single subject. This is a deficiency to the form and as such it is vulnerable to challenge before it ever gets to the ballot,” he said, during a Wednesday morning news conference announcing the lawsuit. 

Barton called the legislation discriminatory because it claims to remedy problems Republican lawmakers posited were worsened by illegal immigration. In a lengthy introduction, the act blames migrants who unlawfully cross the state’s southern border for unfair labor competition, increases in fentanyl trafficking, taxpayer-funded benefit fraud and a breakdown of public safety. 

“Racial animus and scapegoating of immigrants are neither one a single subject that satisfies Arizona’s constitutional requirement for legislative acts,” Barton said. 

In the act’s underlying legislation, Republican lawmakers sought to tie its wide-ranging provisions together under the umbrella of border policy, saying that each new criminal penalty addresses the “harms” resulting from the state’s “unsecured border.” But that argument, Barton said, is unlikely to sway a judge. 

“A judge will hear them say ‘Every problem in the state of Arizona is caused by immigrants,’ and ‘Anything we do falls under the same topic or banner,’ but I can’t imagine a judge will be convinced by that,” he said. 

The Arizona Constitution is clear, he said, that ballot measures must stick to one subject. That mandate is intended to avoid unrelated issues being packaged into one proposal that could present voters with confusion when deciding what to support and what to reject. 

The lawsuit notes that the referral is clearly a combination of multiple bills that were previously either vetoed by Democratic Gov. Katie Hobbs or failed to make it out of the legislature. In January, Senate Republicans pushed a bill criminalizing migrants that Hobbs later vetoed. That proposal was ensconced into the ballot referral, along with some provisions pulled from two other near-identical bills that stagnated in the legislature after Republicans realized they, too, would be rejected. And a widely criticized bid to increase penalties for violations of E-verify, a federal online database used by some employers to confirm the legal status of potential hires, that was championed by House Speaker Ben Toma was revised and added to the referral as well. The provision addressing fentanyl crimes appears to be inspired by a failed attempt last year to charge fentanyl dealers with first-degree murder. 

GOP lawmakers themselves have repeatedly acknowledged that the referral covers several distinct subjects, according to the lawsuit. Rep. Steve Montenegro, on June 4 during a debate of the ballot referral, criticized Hobbs for rejecting so many border-related bills and touted the act as a way to circumvent her veto stamp and earn the approval of voters. Also on June 4, Toma listed the referral’s provisions for other lawmakers on the floor, and said it accomplishes several goals. 

“The bill does three things, broadly,” Toma said. “It has enhanced sentencing for fentanyl dealing. Two: it strengthens E-verify and prevents applicants from submitting false documents to qualify for public benefits. Three: it makes it a state crime to enter Arizona from a foreign nation somewhere other than a legal point of entry.”

The lawsuit notes that each of those new criminal penalties proposes to change multiple legal statutes, indicating the proposal’s wide-ranging breadth. 

“HCR 2060 does not amend a specific, single act enacted by the Arizona voters or the Arizona legislature, but rather, sections of the Arizona Revised Statutes scattered throughout several titles enacted by numerous, separate legislative acts,” reads the brief.

GOP leaders backing the referral have repeatedly maintained that the legislation is carefully tailored to comply with Arizona’s constitutional requirements. On Tuesday, they reiterated that view and blasted the effort to strike down the act as a bid to rob voters of their ability to offer their input. 

“The Democrats’ open border policies have wrought crime, deadly drugs, violence, unsafe communities, and an unending financial drain on American taxpayers. Arizonans have had enough and want change. HCR 2060 empowers Arizona voters to have their will heard, and that is clearly panicking liberal leaders and their activist allies who fiercely oppose any efforts to secure the border,” Toma said, in a written statement. 

LUCHA is joined in their lawsuit by Democratic Minority Assistant Leader Oscar De Los Santos, who strongly opposed the referral while it was making its way through the legislature. The lawsuit explains De Los Santos’ involvement in the legal challenge by noting that he was “denied the opportunity to vote for the subjects covered by HCR2060 individually.” 

“It’s unfortunate special interest groups are attempting to stop Arizona citizens from voting on an issue they consider a top priority. We’re confident the Secure the Border Act will survive the scrutiny in court and will be approved by voters in November,” added Senate President Warren Petersen. 

Petersen and Toma did not respond to a question about whether they plan to lead the defense of the ballot referral in court. But it’s unlikely that Arizona Attorney General Kris Mayes will take up the role, as she has been critical of the legislation in the past. Richie Taylor, a spokesman for her office, declined to comment on whether the Democrat would agree to argue on behalf of the act. 

Barton said the challenge against the act is likely to see an expedited schedule, as it concerns a proposal meant for the November election and the controversy must be resolved before mid-August, when ballots are set to begin printing. 

And while he’s confident the court will side with LUCHA, Barton said that, if the proposal is passed by voters, there are other avenues by which to challenge it afterward. One strategy would be to take it to court over its violation of Proposition 101, a voter-approved constitutional requirement that demands ballot measures account for an independent funding source if they will lead to increased state spending. Multiple law enforcement agencies and state officials have warned that the “Secure the Border Act” will do just that, but Republicans have consistently waved away the need to address that problem.

“It so nakedly violates the revenue source rule that it makes you wonder if the Republicans ever thought this thing would take effect. Or if it’s not just red meat to fire up their base,” Barton said. 

Alejandra Gomez, the executive director of LUCHA, said on Wednesday that the organization’s first step in defeating the act is the lawsuit, but that the group is also focused on ensuring Republican lawmakers are held accountable for backing it in November. 

“Today’s fight is bigger than one bill,” she said. “As long as Republican legislators remain in power, this will never end. They will never stop using our communities as cannon fodder for their ploys to stay in power.”

The organization, which has been overseeing a voter mobilization campaign since January, has committed to knocking on 1 million doors this year and registering at least 20,000 new voters. Gomez said she expects the anti-immigrant sentiment in the GOP-controlled legislature to rile up Latino Arizonans and convince them to make their voices heard at the ballot box. 

“On election day, voters will have a choice to make on what kind of country and state they want to be,” she said. “And while Republicans believe this will rally their base, I can assure you that a different story will be told on the day after the election.”

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