Justices rule 'border security' measure will go to Arizona voters

PHOENIX — Arizonans will get to vote in November on a package of measures that Republican lawmakers say are necessary to create a secure border.

In a brief order late Tuesday, the Arizona Supreme Court rejected arguments by immigrant rights groups and Living United for Change in Arizona that the five-provision measure violates a requirement that all legislation be limited to “one subject and matters properly connected therewith.’’

The same requirement applies to measures 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 in order to get what they do.

Challengers specifically argued that new sentencing laws for sale of lethal fentanyl proposed in the package have nothing to do with other provisions, such as allowing state and local police to arrest border crossers.

But Chief Justice Ann Scott Timmer, writing for the unanimous court, rejected their pleas to keep Proposition 314 — originally crafted by lawmakers as HCR 2060 — off the ballot.

“The court concludes that HCR 2060 satisfied the single subject rule,’’ Timmer wrote. “HCR 2060’s subject is ‘responses to harms relating to an unsecure border.’ And all components of the proposed law are ‘reasonably related’ to that subject.’’

Foes now have to convince voters in the November election to reject the plan.

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. That is modeled after SB 4, a similar law enacted last year in Texas, though enforcement of that remains on hold because of a federal appellate court order.

Republicans in the Legislature here approved a measure earlier this year to authorize such arrests, only to have it vetoed by Democratic Gov. Katie Hobbs. So the GOP leadership decided to bypass the governor and send it directly to voters.

The final version, however, also contains other issues, including creating one crime of using forged papers to seek public benefits and another one making it illegal to get around requirements to prove legal presence to work in the state.

Also added was a section on fentanyl sales.

Selling the drug already is a felony, punishable by a presumptive sentence of five years in prison. The new language would add another five years if the seller knew the drug being sold was fentanyl and if it resulted in the death of another.

Now it is part of the single take-it-or-leave-it package for voters, Prop. 314.

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Attorney Andrew Gaona, representing several immigrant rights groups, argued to the high court that, whatever the merits of the new penalty, it has no business being rolled into a measure dealing with border security and immigration.

“Prescribing a new crime for every adult for the sale of lethal fentanyl has nothing to do with an individual’s immigration status,’’ Gaona said. In fact, the way the proposal is worded, the harsher penalties would apply to any individual, whether in this country legally or not.

Before putting it on the ballot, GOP lawmakers did make a last-minute change to try to tie the issues of fentanyl sales and illegal immigration together: They said someone charged with a crime could escape the presumptive 10-year prison term by providing proof the fentanyl or the chemicals that made it were either manufactured in the United States or were lawfully imported.

That provision drew derision during debate from House Minority Leader Lupe Contreras. “I don’t think the fentanyl pill’s going to have a stamp on the back that says ‘hecho in Mexico,’ ‘’ said the Avondale Democrat.

Attorney Beau Roysden, who represents the GOP lawmakers, did not dispute foes’ legal arguments that provisions related to illegal immigration in Proposition 314 are not directly tied to whether someone who sells fentanyl that results in a death should face an enhanced penalty.

But he told the justices that’s not the legal test to see whether it violates constitutional language limiting 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 Legislature made specific findings “that both problems are contributing to an unsecure border.’’ He said the provision on fentanyl, while it doesn’t apply solely to those who are not here legally, fits within that definition because of the dangers of the drug and the impact of its transportation across the border, including enticing people to enter the country illegally.

Proposition 314 could become a draw to bring out voters who may be sympathetic to Republicans who will be running for office in the same Nov. 5 general election.

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

“I understand their frustration,’’ she said. But the governor, in an earlier interview with Capitol Media Services, made her case for its defeat.

“It will kill jobs. It will vilify communities,’’ Hobbs said. “It will put us right back where we were with (SB) 1070,’’ she said, referring to a 2010 law that was designed to give police more power to detain and question those not believed to be in the country legally.

The U.S. Supreme Court voided some part of that law, but the authority of police to question the immigration status of those they have stopped for some other reason remains on the books.