Judge OKs border security measure for Arizona's ballot

PHOENIX — State lawmakers are entitled to ask Arizona voters to approve a border security measure that contains everything from penalties for entering this country to selling fentanyl, a judge ruled late Friday.

There’s nothing illegal about putting all of that into a single take-it-or-leave-it ballot measure, Maricopa County Superior Court Judge Scott Minder said in an 11-page ruling.

Minder rejected arguments by immigrant rights groups and Living United for Change in Arizona (LUCHA) that the five-provision measure violates a requirement that all legislation be limited to “one subject and matters properly connected therewith.”

That same requirement applies to measure placed on the ballot. The idea is to prevent “logrolling,” where disparate issues are placed together with voters forced to adopt the whole package — including things they don’t want — to get what they do.

Minder said four of the provisions relate to the legal presence, employment verification, access to benefits and allowing judges to order the deportation of those who enter the country at other than a port of entry.

“Those four provisions are all deterrents to, or enforcement methods for, crossing the border without legal permission,” the judge wrote. “Logic and popular understanding shows that these items are parts of, or germane to responses to harms relating to an unsecured border.”

And Minder concluded that a fifth provision — enhanced prison sentences for those who sell fentanyl if it results in the death of another person — also fits.

“The Legislature made explicit findings about the dangers of fentanyl and the impact of the transportation of fentanyl over the border, including the enticement of people to cross the border without legal permission,” he wrote.

“This court has no factual basis to doubt, and plaintiffs have shown no reason to question, the deterrent effect of the proposed ‘lethal fentanyl’ crime,” the judge continued, “Entry of people and of drugs into Arizona through the border are logically or in popular understanding connected, which is what the single-subject rule requires.”

There will be an appeal, Alejandra Gomez, the group’s executive director, said Saturday in a statement.

“If Proposition 314 reaches the ballot box this November, many Arizonans will be disproportionately targeted and subjected to suspicion and persecution,” Gomez said, referring to the number being given to the measure by the Secretary of State’s Office. “This discriminatory legislation will lead to over-policing in every community across our state.”

The most visible part of the legislation is the language allowing police to arrest those who enter Arizona from Mexico other than at a port of entry. The Republican-controlled Legislature actually approved a measure to do just that earlier this year, only to have it vetoed by Gov. Katie Hobbs.

A separate proposal by Rep. Quang Nguyen, R-Prescott Valley, dealing with the sale of fentanyl never made it out of the House.

GOP leaders then combined both into HCR 2060, designed as a ballot measure to bypass the governor. They made violating that law a crime — but allowed judges to drop charges if the person self-deports.

They also added provisions making it a crime to use forged papers to seek public benefits and to get around requirements to prove legal presence to work in the state.

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The combined measure was approved by lawmakers over the objections of many Democrats. They said the provision empowering police to arrest border crossers would lead to racial profiling and result in the same bad publicity Arizona got in 2010 with the adoption of SB 1070 giving police the power to question and detain people they believe are in the country illegally.

Foes also questioned whether the measure is constitutional. They pointed out that a federal appeals court has so far barred enforcement of SB 4, a nearly identical Texas law on which much of HCR 2060 is modeled,

But any similar challenge here cannot be heard by the court unless and until the measure is approved in November. That left foes with only one pre-election legal tool: argue that it violates the single-subject rule.

Minder acknowledged that courts have struck down other ballot measures where lawmakers have tried to cram in various unrelated items.

“The subject is broad,” he said of HCR 2060. “But it is not foolishly so.”

Consider, he said, a decision by the Arizona Supreme Court to strike from the ballot a measure that was simply titled as “relating to state government.”

But Minder said the justices found nothing improper in allowing a vote on a package of issues as “related to marital and domestic relations.” Ditto, he said, of a ballot measure labeled simply “protection of children” or one labeled “transportation.”

“This court finds that ‘responses to harms related to an unsecured border’ is no broader than ‘domestic relations,’’ Minder said.

Even the provision on fentanyl, he said, meets the legal test, even though those who would be subject to its penalties could be U.S. citizens.

“Arizona courts have repeatedly found that provisions of the same act can affect different groups of people without violating the single-subject rule,’’ Minder said.

If the decision is not overturned, it could become a draw to bring out voters who may be sympathetic to Republicans who will be running for office at the same Nov. 5 general election.

Hobbs herself has acknowledged that the measure is likely to prove popular among those who believe the border is not secure.

“I understand their frustration,” Hobbs said. But the governor, in an earlier interview with Capitol Media Services, is beginning to make the case for its defeat.

“It will kill jobs,” she said.

“It will vilify communities,” Hobbs continued, “It will put us right back where we were with 1070. And that’s not good for Arizona.”