PHOENIX โ Republican legislative leaders are asking a judge to allow voters to decide whether they want to adopt a multi-pronged measure billed as protecting border security.
Challengers are off-base when they contend that what is in what GOP lawmakers labeled the โSecure the Border Actโโ violates constitutional requirements that ballot measures deal with only a single subject, Kory Langhofer, one of their attorneys, said in court filings.
Langhofer acknowledged that there are several different provisions in the measure, approved on a party-line vote as HCR 2060. They include:
Making it a crime for those not here legally to enter Arizona from Mexico other than at a port of entry;
Increasing penalties for using false documents to obtain public benefits or evade laws about hiring undocumented individuals;
Strengthening laws that require public documentation to receive public benefits;
Imposing harsher penalties for those who fentanyl causes the death of another person.
But Langhofer told Maricopa County Superior Court Judge Scott Minder that the provisions all relate to the single, general subject of โresponding to harms relating to Arizonaโs unsecured southern border.โโ
Hanging in the balance is whether voters will get a chance to decide on the package in November.
In filing suit, several groups challenging the measure pointed out that lawmakers attempted to adopt various provisions as separate bills earlier this session, all of which were vetoed by Gov. Katie Hobbs. Langhofer, however, said that history is โirrelevantโโ to whether lawmakers can now bundle the issues into a single ballot measure.
But attorney Andrew Gaona, representing several of the organizations, said that ignores what he said is the clearly disparate nature of the provisions.
โThe Legislatureโs attempt to impose state law consequences against those who do not enter the country and state through a legal port of entry or who submit false documents or information in applying for employment or public benefits has nothing to do with imposing criminal liability on every adult who commits the โsale of lethal fentanyl,โ โโ he said. And Gaona described the arguments presented on behalf of the GOP leaders as an โeffort to salvage HCR 2060 as an election-year political issueโโ to โdivide our communities.โโ
Langhofer, however, said Minder need look only at what lawmakers put in โlegislative findingsโโ that accompany the measure to prove his point that they all are related.
It starts, he said, with the argument by lawmakers that there is โa public safety crisisโโ in Arizona โcaused by transnational cartels engaging in rampant human trafficking and drug smuggling across the stateโs southern border.โโ
โWith respect to the role of fentanyl in this crisis, the Legislature found that โtransnational cartels fund their operations by trafficking this deadly drug across the Southwest borderโ and that `โillicit fentanyl is primarily responsible for an increasing number of overdose deaths in Arizona,โ โโ Langhofer said.
And thereโs something else tying the issue of enhanced penalties for fentalyl dealers to a border package: The law says that someone charged with that crime can escape enhanced penalties by showing that the drug and its predecessor chemicals were either manufactured in the United States or lawfully imported.
That escape clause โ formally called an โaffirmative defenseโโ โ drew derision during debate from House Minority Leader Lupe Contreras.
โI donโt think the fentanyl pillโs going to have a stamp on the back that says โhecho in Mexico,โ โโ said the Avondale Democrat.
Specific provisions aside, Langhofer contends that the arguments by challengers that the ballot measure fails the single-subject rule fails as a matter of law.
On one site, he cited case law that says the question of what is a single subject โis to be given broad and extended meaning.โโ
Conversely, Langhofer said, a measure can be considered as violating the single-subject rules only if it includes โdissimilar and discordant subject that by no fair intendment can be considered as having any legitimate connection with or relation to each other.โโ And, if nothing else, he said courts should exercise โjudicial restraintโโ on legislative decisions on of how laws are made.
โThe Legislature designed HCR 2060 as a holistic approach to address the public safety crisis at this stateโs border by raising the costs and reducing the incentives for such illegal activity that has undermined border security,โโ Langhofer wrote. โThe general purpose of HCR 2060 is thus to reduce such illegal activity and thereby make the border more secure.โโ
In his own legal filing, attorney Jim Barton, representing LUCHA which also is trying to have the measure kept off the ballot, told Minder that the argument about a single general purpose is flawed.
Consider, he said, the provision about getting federal, state or local public benefits without documentation.
โLocal benefits are not defined by HCR 2060 but would surely include attending public schools,โโ Barton wrote. โDoes denying a student access to public school related to defunding cartels?โโ
And he pointed out that the denial of benefits does not apply only to those who entered Arizona at other than a port of entry.
No date has been set for a hearing.
Even if the challenges fail and the measure gets on the ballot and is approved, that is unlikely the end of the legal issues.
Much of what is in HCR 2060 about having state and local police arrest those who enter the country at other than a port of entry is modeled after a Texas law.
A federal appeals court has barred enforcement of that statute while the case is pending, a fact of which Arizona lawmakers are keenly aware. In fact, legislators here included language that does says the border-crossing provisions cannot be enforced until at least six months after there is a final ruling in that Texas case.
But Barton said even putting in language into Arizona statutes making the law here conditional on what a federal court says in Texas is itself illegal.
Barton acknowledged, however, judicial procedures prohibit him from raising those legal issues unless or until the ballot measure is approved. It is only the allegation of violation of the single-subject rule that can be heard prior to an election.
