Letting the ‘Secure Border Act’ go to voters would neuter an AZ Constitutional rule, critics argue

A team of Soldiers with 610th Engineer Support Company attach a string of concertina wire to the border fence at San Luis, Ariz., in March 2019. The Department of Defense has deployed units across the Southwest Boarder at the request of U.S. Customs and Border Protection and is providing logistical, engineering, and force protection functions. Photo by U.S. Army Sgt. 1st Class Ben K. Navratil, 24th Theater Public Affairs Support Element | public domain image

Four immigrant advocacy organizations are urging the Arizona Supreme Court to overrule a lower court judge and block a GOP ballot referral that would give police officers permission to jail migrants, saying that it violates the state’s constitutional requirement to stick to one topic.

“Two years ago, this Court held that the Legislature violated the (single-subject rule) by injecting unrelated hot-button political issues into ‘budget reconciliation bills’ intended to implement the State’s annual budget. Yet here we are again, with more hot button political issues and another constitutional violation,” wrote Democratic attorney Andy Gaona, referencing the high court’s 2021 decision to strike down a bid by Republican lawmakers to ensconce wish list items into the state budget, including mask mandate prohibitions and critical race theory bans .

Gaona represents Poder in Action, the Phoenix Legal Action Network and the Florence Immigrant and Refugee Rights Project in an ongoing effort to prevent the “Secure the Border Act” from being considered by voters.

The ballot measure seeks to make it a state crime, punishable with jail time, for migrants to cross the southern border anywhere except an official port of entry and would penalize the submission of false documentation to apply for jobs or public benefits with a class 6 felony. It also creates an entirely new class of felony offense, with harsh prison sentences, for those convicted of knowingly selling fentanyl that ends in someone else’s death.

Critics have argued in court that its provisions are too different to comply with the Arizona Constitution’s mandate that a ballot measure address just one subject. But earlier this month, a Maricopa County Superior Court judge ruled that the act does satisfy the single-subject rule, siding with GOP lawmakers who claimed the proposal works towards one unifying goal: responding to the “harms” caused by an “unsecured” border. Opponents quickly filed an appeal to the state Supreme Court in a last-chance bid to block it from appearing on the November ballot.

Gaona warned that the trial court’s ruling threatens to render the state’s single-subject requirement meaningless. The rule, he wrote, is intended to prevent political logrolling . Allowing GOP lawmakers to use broad themes to defend a piece of legislation that was once five separate bills undermines that, he argued.

“The (single-subject rule) is an important limitation (and check) on legislative power,” Gaona wrote. “It ensures that, to pass substantive policy, legislators must gather enough votes from representatives of the majority of constituents who support the policy — not slip them into unrelated legislation. Yet that’s exactly what happened with (the Secure the Border Act).”

One of the early iterations of a bill that was later inserted into the act was vetoed by Gov. Katie Hobbs, and two others were near-identical mirrors of that failed proposal. The remaining bills that inspired provisions in the act, including the portions having to do with the sale of lethal fentanyl and legal punishments for submitting false documentation, had previously stagnated in the legislature.

Gaona added that, on top of being a clear example of logrolling, the act itself is made up of provisions that violate the state’s single-subject rule. Criminalizing the sale of lethal fentanyl, he wrote, is completely unrelated to the other crimes the act seeks to punish, which are dependent on a person’s citizenship status.

“Prescribing a new crime for every adult for the ‘sale of lethal fentanyl’ has nothing to do with an individual’s immigration status, and thus is not ‘connected with or related to…either logical or in popular understanding’ (the Secure the Border Act’s) remaining provisions,” Gaona wrote, referencing previous court rulings.

Critics of the GOP’s ballot measure have frequently denounced the fentanyl provision as the most disparate part of the proposal, pointing to it as proof that the act fails to comply with the single-subject rule.

But Republican leaders have defended it by citing a legislative findings clause they added to the act’s underlying legislation that asserts Arizona’s fentanyl crisis is tied to the “harms” originating at the southern border. And a last-minute amendment added to the legislation sought to quell criticism by further linking fentanyl to the southern border with an affirmative defense claim that would allow people charged under it to avoid a conviction if they can prove that the fentanyl that was sold or its precursor chemicals were legally imported into the U.S.

In his ruling, Maricopa County Superior Court Judge Scott Minder concluded that the legislative findings clause was sufficient to justify the inclusion of fentanyl. But Gaona urged the state supreme court to ignore that conclusion. Many things, he wrote, cross Arizona’s southern border, including potentially dangerous items like firearms. It would be a mistake, he continued, to give lawmakers the ability to cherry pick which ones to package into a single proposal, limited only by how they connect them in their own “self-serving” legislative findings clauses.

“The Legislature shouldn’t have license to include whatever it wants in that legislation so long as it makes legislative findings that make vague connections between various matters,” he wrote.

In his ruling, Minder repeatedly noted that the court operates from a default position of supporting the legislature’s findings and accepting the presumptive constitutionality of laws. But Gaona said courts shouldn’t merely “rubber-stamp” legislative findings, and called on the justices to ignore the legislative findings clause.

The court, he said, should be more concerned with the practical, real world effects of the act’s provisions, not with what lawmakers claim their intent was.

While Gaona argued that the fentanyl provision alone renders the act unconstitutional, attorney Jim Barton, representing Living United for Change in Arizona, reasoned that all of its provisions are too different to comply with the single-subject rule. LUCHA, a Latino and immigrant advocacy organization that was at the forefront of public criticism of the act while it was being debated by lawmakers, was the first to launch a lawsuit against it, and has since combined its legal efforts with the one headed by Poder in Action.

Barton argued that policing who crosses the state’s southern border, criminalizing the submission of false documentation and erecting new prison sentences for the sale of lethal fentanyl all constitute different and wholly unrelated issues. And, he said, the attempt from GOP lawmakers to tie all the provisions together under the umbrella of “harms” caused by the “unsecured” southern border isn’t a valid approach.

“The sale of lethal fentanyl is not a factor affecting the receipt of public benefits,” Barton wrote.  “Finding some abstract problem that each of the provisions indirectly touch — for example, have some relationship to Arizona’s southern border — is not enough. They must have a real, logical connection, not one concocted to bypass the single subject rule.”

Minder’s ruling accepted that a broad theme could satisfy the single-subject rule. As proof for his conclusion, Minder cited a 1990 case that centered around a person’s bid to nullify a DUI conviction by challenging the constitutionality of a bill that included various regulations on DUI testing, license suspensions and court hearings. The court, Minder said, ultimately found that all of those provisions, though different, were connected because they all fell under the theme of “transportation”.

But Barton accused Minder of overstating the subject, and noted that other rulings have determined that using an umbrella approach to find “some semblance of unity” is not valid. Barton added that the provisions contested in the 1990 case were all related to DUI violations, and noted that, in the same legislative session that produced the bill that case focused on, lawmakers also passed 24 other, separate bills having to do with “transportation”.

Ultimately, Barton wrote, a ballot measure’s provisions must correlate to each other as well as work towards a singular goal. But the “Secure the Border Act,” he argued, doesn’t meet those requirements.

“If the act’s main objective is to respond to ‘harms relating to an unsecured border,’ the act’s provisions should fall within that objective plus the provisions must be logically or naturally connected to each other so that they present a coordinated approach,” Barton wrote.

He urged the court to reject the act in light of its obvious violations of the single-subject rule, and warned that finding it to be fit for voters would drastically undermine the constitutional mandate and the court’s own 2021 ruling.

“Concocting a unifying theme as the alleged objective of disparate measures does not satisfy the constitutional requirement that an act embrace but a single subject and matters properly connected therewith,” Barton wrote. “To allow such an interpretation of the rule to stand is to construe it so foolishly liberally as to essentially repeal the rule altogether.”

Senate President Warren Petersen and House Speaker Ben Toma, who have taken up defending the act in court after Democratic Attorney General Kris Mayes declined to, have until the end of the month to file a reply. The case is on an expedited schedule, as Maricopa County is set to begin printing ballots on Aug. 22 and the issue must be resolved by then.

If the current challenge is unsuccessful, opponents have already signaled an interest in launching lawsuits later in the process , once voters have had their say.

DONATE: SUPPORT NEWS YOU TRUST

The post Letting the ‘Secure Border Act’ go to voters would neuter an AZ Constitutional rule, critics argue appeared first on Arizona Mirror .