Judge weighs if Republicans' border measure can go to Arizona ballot

PHOENIX — The question of whether Arizonans get to vote on what Republicans bill as a border security measure could depend on whether a judge thinks enhanced penalties for selling fentanyl have anything to do with provisions about crossing the border illegally or whether someone not here legally gets a library card.

To hear attorney Kory Langhofer explain it, everything in HCR 2060 is related to the subject of smuggling. Langhofer, who represents Republican legislators who voted to put the issue on the November ballot, said it’s irrelevant whether the acts they want to criminalize involve smuggling of humans or drugs.

His argument is important because the Arizona Constitution requires state laws — including those proposed for the ballot — to embrace only a single subject. Langhofer said this meets that test.

Not so, argued challengers to the measure at a hearing Monday in Maricopa County Superior Court.

Andrew Gaona, representing three immigration rights groups, told Judge Scott Minder the heart of the measure would make it a crime to cross the border at other than a port of entry. It also would authorize judges to dismiss charges if the individuals agree to self-deport.

He said there is no way to tie that issue to a separate provision dealing with the sale of fentanyl that causes the death of another. In fact, Gaona pointed out, that crime would apply not just to those here illegally but also to U.S. citizens selling the drug.

That’s just part of the problem cited by foes.

Jim Barton, representing Lucha, pointed out to the judge that the measure also contains provisions that make it a felony for anyone who is not in this country legally to submit false documents when applying for public benefits.

Barton said lawmakers are free to enact laws to regulate fentanyl. Ditto, he said, regulating who can get public benefits.

“But what the single subject rule says is they have a right to do them separately,” Barton said.

The purpose of that rule, he said, is to avoid putting voters in a position where they have to accept something they don’t want to get something unrelated that they support enacted.

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

Proponents of the measure, which would appear on the November ballot as Proposition 314, argue everything is sufficiently legally related to present it as a take-it-or-leave-it question for voters.

What is clear is that lawmakers did try to adopt some of these provisions separately.

The language about people entering Arizona at other than a port of entry was approved by Republicans earlier this year only to be vetoed by Democratic Gov. Katie Hobbs. She said the measure “does not secure the border, will be harmful for communities and businesses in our state, and burdensome for law enforcement personnel and the state judicial system.”

Separately, Rep. Quang Nguyen, R-Prescott Valley, proposed increasing the penalty for selling dangerous or narcotic drugs if they cause the death of someone else. That measure, however, failed to clear the House.

So House Speaker Ben Toma, a Peoria Republican, chose to link them while also adding other provisions, including making it illegal under state law to provide false documents to prove to an employer someone has a right to work here and to apply for public benefits without being eligible.

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And in an effort to tie everything together, Toma, who is running for Congress, added legislative “findings” detailing everything from the number of people who have entered the United States illegally through the Southwest border, figures on drug seizures, and arguments on how many who come here are “enticed by smugglers with promises of economic incentives, including employment and taxpayer-funded benefits” and how unchecked and unauthorized employment “causes economic hardship to Arizona workers who may face unfair labor competition, wage suppression and reduced working conditions or opportunities.”

Putting it into a single package to send to voters not only lined up the necessary votes in the Republican-controlled Legislature, it also bypassed the governor.

The judge, Minder, at one point appeared skeptical that everything in the measure really is legally interrelated. He asked Gaona if his legal objection to putting HCR 2060 on the ballot would disappear if there was nothing in the measure dealing with fentanyl.

Gaona responded that it would.

But Minder lacks the legal authority to excise that language and send what remains to the ballot. If the judge finds the fentanyl provision does not relate to the border security language he would be obligated to declare the whole thing cannot go to voters.

One potential sticking point is the enhanced drug penalty — an additional five years in prison if the sale results in death — would apply to anyone, including U.S. citizens.

“That has absolutely nothing to do with an individual’s immigration status,” Gaona told the judge. He said it also does nothing to discourage illegal immigration, one of the stated goals of the proposal.

Langhofer conceded it’s “possible” legal U.S. residents could also face the enhanced penalties. But he said that doesn’t undermine the Legislature’s argument this all relates to border security.

“As long as this clause as written does affect people who are engaged in smuggling, they’re crossing the border illegally with something or themselves that are not supposed to be crossing the border, the fact that it has some ancillary effect on someone else doesn’t render this unconstitutional,” Langhofer said. All that’s required, he said, is that the provisions relate to “the general topic of smuggling across the border.”

And if the drugs didn’t come from Mexico? Langhofer pointed out there is an “affirmative defense” that allows people who sell fentanyl that leads to the death of another to escape the enhanced penalties of the proposed new law if they can prove that the drug itself or its precursor chemicals were manufactured in the United Sates or lawfully imported into this country. That, he said, shows that the new penalty actually is related to illegal border activities.

Minder seemed skeptical, suggesting that it would be rare for a person charged with the offense to prove a negative — that the drugs didn’t originate in Mexico.

“Factually, I suspect you’re right,” Langhofer conceded. But he said it doesn’t affect the legality of the enhanced penalty — and putting it into a border-security proposal — even if it’s rare that someone might be able to use that defense.

“It is there,” Langhofer said. “And it does tie us to the general topic of illegal smuggling.”

Whatever Minder rules is unlikely to be the last word. Whichever side loses is virtually certain to seek appellate court review.

But all that would have to come quickly. Langhofer told the judge there needs to be a final ruling by the third week of August when counties begin to print up the ballots for the general election.