Arizona voters will decide the fate of the Texas-style ‘Secure Border Act’ in November

   

Arizona voters will get a chance to decide whether the state should have the ability to enforce immigration law after Republicans in the state legislature OK’d sending a proposal to the November ballot that seeks to grant local police officers and state judges the power to arrest and deport migrants.  

But there are numerous constitutional questions about the proposal, which the GOP majority in the state House of Representatives approved on Tuesday.

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Republicans passed House Concurrent Resolution 2060 by a vote of 31-29, while every Democrat voted in opposition. Titled the “Secure the Border Act,” the proposal would make it a state crime for migrants to cross Arizona’s southern border anywhere but at an official port of entry. If voters approve it, a first offense could lead to a class 1 misdemeanor, which carries with it up to 6 months in jail. Repeat border crossers could face greater penalties and longer jail time.  

Hoping to capitalize on the election year concern with immigration, Republicans touted the proposal as a solution for the state’s recent spike in border crossings. Last year, interactions between migrants and border patrol officials in the Tucson sector, which spans 262 miles, outnumbered every other U.S.-Mexico border sector for five months in a row. 

Since then, however, encounters have steadily decreased and in April were at 31,219 – a marked difference from 80,184 in December of 2023. 

The Biden administration is to blame for Arizona’s border troubles, said Rep. Matt Gress, R-Phoenix. 

“For too long, our southern border has been broken, and it is a disaster because the federal government has failed to do its job,” he said. 

Left unsaid by Gress and his GOP colleagues, however, is that a bipartisan federal immigration bill was left on the table last year after Republicans in Congress walked away at the request of former President Donald Trump, who has made the border the focal point of his bid to recapture the White House. And just hours before Tuesday’s vote, President Joe Biden issued an executive order drastically overhauling and tightening the country’s asylum policies.

Several Republicans sought to cast migrants as dangerous criminals. Rep. Joseph Chaplik, R-Scottsdale,  read aloud from a list of people he claimed were undocumented and responsible for gruesome crimes, including murder and rape. 

“This is a federal problem and Arizona needs to take control of it, and we will let the citizens of Arizona vote on this this November to decide how we’re going to handle our own border,” he said. “These folks should not be in our country and they’re making every community in our state more dangerous.” 

Rep. Alexander Kolodin, likened Arizona’s southern border to the Israel-Hamas conflict, equating migrants with violent terrorists and implying they would destroy Arizona communities. The Scottsdale Republican said that, on a recent trip to a war-torn border town he and other legislators took in March, he was overcome with tears imagining a similar fate for Arizonans. 

“I was thinking to myself: ‘This is what happens when borders fail.’ And I was seeing a picture in my head of Scottsdale — what I think is the most beautiful place on Earth — in ruins like that,” he said.

Democrats, meanwhile, vehemently denounced the proposal, citing opposition from the business community, Latino advocacy groups, and criticism from state and law enforcement officials that it will result in insurmountable costs for Arizona and rampant discrimination if voters greenlight it. 

Rep. Judy Schwiebert, D-Phoenix, pointed out that HCR2060 includes no funding for the law enforcement agencies who will be responsible for upholding it, despite the fact that most of them are already financially strained. The Arizona Republic recently reported that the Department of Public Safety is struggling with a severe trooper shortage, leaving many rural areas unsupervised at night. And in a legislative analysis released last week, the department estimated it would be forced to set aside $3.8 million every year to comply with the proposal, and it projected that the total costs for law enforcement agencies across the state could be as much as $41 million. 

“How many robberies and other crimes in local communities will now go uninvestigated, how many crimes will go unreported by immigrants and Latinos who will be too scared to trust law enforcement to protect them?” asked Schwiebert, before voting against the measure.

Rep. Quantá Crews, D-Phoenix, sounded the alarm over a provision in the ballot referral that provides legal immunity for police officers who make arrests under it. The legislation expressly gives civil immunity for damages for enforcing the law.

While Republican lawmakers have dismissed concerns that the proposal could lead to racial profiling and added a set of criteria for police officers to follow in an attempt to satisfy critics, Democrats and immigrant advocacy groups have remained unimpressed with the continued existence of the blanket legal protection. And the criteria for police officers to make arrests, which requires the officer themselves to witness an unlawful border crossing, video evidence, or other “constitutionally sufficient indicia of probable cause,” has also been criticized as broad enough to allow for discriminatory arrests. 

Crews, who is Black, said she has been the victim of racial profiling and said the proposal threatens to shield law enforcement officials with discriminatory motivations from accountability. 

“Not all law enforcement officers are racist, but law enforcement has been weaponized by racist individuals,” she said. “If this bill is so safe for American citizens, why grant 100% immunity to law enforcement officers? Why does law enforcement need protection if they’re not going to do anything wrong?” 

Democrats also derided the proposal for its likely unconstitutionality. 

The proposal, modeled after a Texas law that is currently being litigated but has been blocked because it doesn’t comply with U.S. Supreme Court rulings that only the federal government can enforce immigration laws, is merely Arizona’s latest attempt to criminalize being in the country illegally. In 2010, the state’s infamous SB1070 directed local law enforcement to detain suspected undocumented immigrants and turn them over to federal authorities for detention and possible deportation.

In 2012, the Supreme Court ruled the bulk of that law was unconstitutional because states have no authority to enforce immigration laws.

There are also apparent conflicts with the Arizona Constitution, which has strict rules for how ballot referrals and initiatives must be crafted, including requirements that they focus on just one subject and include an independent funding source if they increase state spending. 

Assistant Minority Leader Oscar De Los Santos pointed out that HCR2060 covers a wide range of topics. Along with making it a crime to cross the border between official ports of entry, it also criminalizes undocumented Arizonans who submit false information to apply for jobs or public benefits and it creates an entirely new class of felony to punish people who knowingly sell fentanyl that ends in someone’s death. 

Republicans have sought to tie each provision together in a lengthy introduction by classifying them as the consequences of an “unsecured border,” but it’s unclear if that argument will hold up in court. De Los Santos was unconvinced. 

“(HCR)2060 embraces a hodgepodge of disparate subjects, including employee verification, immigration law enforcement, sentencing for drug crimes, laws related to city county and town administration of public benefits and the legislature’s right to intervene in lawsuits,” he said. “Simply put, this cannot conceivably be construed as a single subject.”

The Democrat from Laveen added that the proposal also likely violates the state’s constitutional requirement for ballot initiatives to account for funding needs, saying that “not a single sentence, and, in fact, not a single word,” in the proposal addresses how lawmakers intend to cover the costs. 

Legislative budget analysts and an independent economic analysis each concluded that the measure would cost several hundred million dollars a year to enforce.

House Speaker Ben Toma, who has been a key proponent of the legislation, told reporters after the vote that perceived conflicts with the single-subject or constitutional revenue rule are unfounded. The Republican from Glendale defended accusations that the ballot referral will incur hundreds of millions of dollars of costs by claiming that even more will be saved by cutting off undocumented immigrants. 

“We’re saving billions of dollars,” he said. “There’s clearly an offset.” 

The Arizona Constitution, however, doesn’t contemplate weighing savings from a ballot measure against the money it demands be spent. The revenue provision, which voters added in 2004, says only that a ballot measure requiring any “mandatory expenditure of state revenues for any purpose” must also “provide for an increased source of revenues sufficient to cover the entire immediate and future costs of the proposal.” And that money can’t come from the state’s general operating fund.

One Latino advocacy organization, Living United for Change, announced on Tuesday that it plans to take the proposal to court over its single-subject issues. Because an intiative’s compliance with the single-subject requirement has to do with its structure, such a challenge can be launched before voters get a chance to weigh in. 

“HCR 2060 is a right-wing extremist wish list cobbled together from a variety of previously rejected individual pieces of legislation. It covers everything from an imagined invasion of the state to criminal drug charges to regulating employment,” LUCHA attorney Jim Barton said in an emailed statement. “It most certainly embraces more than a single subject. Arizonans against hatred and extremism will have their day in court.”

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