Arizona border measure is fit for ballot, GOP lawmakers argue

PHOENIX — State lawmakers are arguing to the Arizona Supreme Court that there’s nothing legally wrong with asking voters to boost penalties for lethal fentanyl sales in the same ballot measure that seeks to let police arrest illegal border crossers.

In new court filings, an attorney for the GOP lawmakers, Beau Roysden, does not dispute legal arguments by foes that provisions related to illegal immigration in Proposition 314 are not directly tied to whether someone who sells fentanyl that results in the death of another person should face a presumptive 10-year prison term.

But he told the justices that’s not the legal test to see whether it violates constitutional language that limits ballot measures to a single subject. All that’s required, he said, is that all the provisions are part of a larger plan to accomplish a specific purpose.

In this case, Roysden said, the GOP-controlled Legislature made specific findings “that both problems are contributing to an unsecure border.’’ That is enough to send it to voters on an all-or-nothing basis, he said.

The Republican lawmakers who wrote the ballot measure won the first round earlier this month when Maricopa County Superior Court Judge Scott Minder concluded that all five provisions in the ballot measure are closely related enough to comply with the Arizona Constitution.

These include:

Allowing state and local police to arrest those who enter Arizona from Mexico at other than a port of entry;

Allowing a judge to drop charges if the person agrees to self-deport;

Making it illegal to apply for public benefits using false documents;

Providing for criminal penalties to use false information or documents to evade normal verification processes for employment;

Enacting enhanced sentences for anyone who knowingly sells “lethal fentanyl’’ that causes the death of another person.

An attorney for several Latino rights groups that sued over the measure, Andrew Gaona, said the drug measure has no business being stuffed into a package dealing with whether people are in this country legally. He pointed out the penalties apply to anyone who sells fentanyl, including if they are U.S. citizens.

Jim Barton, attorney for Living United for Change in Arizona, which filed its own challenge, went farther. He said there is no link between those caught crossing the border and the fact that some individuals who may already be here illegally might apply for a library card.

Both said the packaging violates the single-subject rule and precludes the measure from being presented to voters.

They also argued that packaging it all into a single ballot measure constitutes illegal “log rolling.’’ That’s where proponents put multiple issues into a single measure in a take-it-or-leave it manner, forcing people who may like one provision to accept other sections with which they disagree.

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Minder rejected the challenges. The Arizona Supreme Court will make the final decision about whether Prop. 314 will be on the state’s November ballot.

Roysden is urging the justices to leave the lower court ruling intact.

He said the key is that lawmakers clearly identified the measure as “responses to harms related to an unsecure border.’’

Even the provision on fentanyl, while it doesn’t apply solely to those who are not here legally, fits within that definition, he said, because of the dangers of the drug and the impact of its transportation across the border, including enticing people to enter the country illegally.

Roysden said challengers are interpreting what the constitution allows in a single ballot measure far too narrowly.

“The single subject rule does not require relatedness of provisions to each other beyond germaneness to one general subject,’’ he wrote. Roysden said the provisions about entry, verification for benefits and the return of people who cross the border illegally “relate to each other, particularly given the act’s express findings that both problems are contributing to an unsecure border.’’

Put another way, he said, the focus is on the goal of the legislation — securing the border — not the individual provisions.

He said the Legislature concluded that the cartels that smuggle people and drugs finance their operations by trafficking in fentanyl. Lawmakers also made findings that “illicit fentanyl is primarily responsible for an increasing number of overdose deaths in Arizona.’’

The bottom line, Roysden said, is that it all fits into lawmakers’ goal to deal with “harms related to an unsecure border.’’

The justices have not said when they will rule. They need to act within the next few weeks: Counties begin printing ballots around the third week of August.

Legal issues aside, foes say what’s in Prop. 314 is a bad idea, arguing it would lead to racial profiling. Those arguments are irrelevant to whether the measure can go on the ballot and instead have to be fought in the court of public opinion.

If the measure is approved, there is the chance of further litigation, including over whether the state can assume any role in dealing with border security.

A federal appeals court has so far barred Texas from implementing its own SB 4, which became a model for the Arizona legislators’ language allowing police to arrest border crossers, after being sued by the U.S. Department of Justice. GOP lawmakers here, recognizing that issue, included language in Prop. 314 to say that provision could not take effect until there is a final court action on the Texas law.