Arizona border policing measure passing with 61% so far

Voters in Arizona, whose border with Mexico is on the front lines of dealing with illegal immigration, appear in early returns to be favoring enactment of new state laws designed to stem the flow.

Early returns show Proposition 134 winning with 61.3% of the votes counted, with 47% of ballots tallied so far.

It has perhaps surprisingly been a fairly low-key race, with little money spent on advertising.

The measure, put on the ballot by Republican lawmakers, could be benefiting from years of headlines and videos about people entering the country illegally.

The number of border crossers has recently slowed. But the issue is a central point in the presidential race, with Republican Donald Trump promising mass deportations if elected, and Democrats conceding that more needs to be done though their approaches are different.

There's also the fact that proponents wrote the proposition in a way that could tilt public support. The ballot language says it is designed to respond to "harms related to an unsecured border.''

The measure has four provisions.

One would make it a crime to use false documents when applying for work. Another would mandate proof of legal presence to obtain certain public benefits.

There also is a section to increase the penalty for the "sale of lethal fentanyl'' based on the claim that much of the supply of the drug or its precursor chemicals has come across the border.

The measure's key provision would allow state and local police to arrest anyone who is not a legal resident who they suspect entered Arizona from Mexico at other than a lawful port of entry.  

That has led to claims the proposition would lead to racial profiling.

In a bid to address that, state Sen. Ken Bennett, R-Prescott, insisted on addition of a provision saying an arrest could not take place unless the law enforcement officer "witnesses the violation'' or has a recording of the illegal crossing.

That did not mollify foes, who noted there also is a catch-all of sorts to allow an arrest if there is "any other constitutionally sufficient indicia of probable cause.''

During House debate on the measure, Rep. Patty Contreras, D-Phoenix, who was born in Yuma, said there is a history of racial profiling in Arizona.

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She told colleagues of being taken with her seven siblings on road trips by her parents. On one of those trips, Contreras said, her father, John, was stopped by police in Quartzsite, about 100 miles north of the border.

"He was an American citizen, he was born in California, he was a Korean War veteran,'' she said. He was also a businessman and a former vice mayor of Somerton where they were living, and an American Legion post commander.

"But these things didn't matter to the officer,'' Contreras continued. "What mattered to the officer was that there was a brown-skinned man driving a station wagon filled with a bunch of little brown kids.''

Opponents also said the measure could be misused because it would provide immunity to government entities, officials, employees and contractors for any actions taken under the law.

But House Minority Whip Teresa Martinez, a Casa Grande Republican, said, "This vote will allow the people of Arizona to decide for themselves what they want. Do they want a stronger border? Or do they want open borders?''

There have been various estimates of what the new law might cost in law enforcement and incarceration. That has been countered by various claims of the cost of illegal immigration.

Prop. 134 is set up so that judges, rather than jailing individuals, can order them to "return to the foreign nation from which the person entered'' or to the "nation of origin.'' Judges would be able to order a state or local law enforcement agency to transport them to a port of entry.

There's also the question of whether all of this is legal.

The key provision is modeled after SB 4, approved by the Texas Legislature and challenged by the U.S. Department of Justice. A  federal appellate court has blocked its enforcement until that litigation is settled.

That fact did not escape Arizona lawmakers. Prop. 134 is worded that it could not be enacted here until at least 60 days after there is a final ruling on that Texas law. Going through the anticipated appellate process could take months.

Arizona Democratic Gov. Katie Hobbs vetoed legislation with a nearly identical provision earlier this year. That led to the decision by GOP lawmakers — there were no Democratic votes for it — to bypass the governor and send it directly to voters.