Arizonans to vote on making unofficial US border crossings a state crime

Arizona voters will be able to decide this November whether to approve a measure that would make it a state crime for migrants to cross the Mexico border into Arizona other than through an official US entry point, the state supreme court has ruled.

If the controversial new law, currently known as Proposition 314, wins voters’ favor when they cast their ballots in the presidential election , Arizona would empower local law enforcement officials to arrest and prosecute suspected violators. State judges would also be allowed to issue de facto deportation orders.

Crossing into the US outside of an official port of entry is already a federal crime . But several Republican-led states have sought to also make it a state offense, giving them greater power to crack down on migration, but putting them on a collision course with the federal government.

Earlier this week, the Arizona supreme court rejected a lawsuit filed by immigrant rights groups that wanted to remove Proposition 314 from the ballot on constitutional grounds. In the majority opinion, the state’s chief justice, Ann Scott Timmer, concluded that the measures in the proposal amount to “responses to harms relating to an unsecured border”.

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Some advocacy organizations and Arizona Democrats have said Proposition 314 demonizes immigrants and raises the specter of racial profiling.

“The intent of this measure is to divide our communities, to spread fear so that one party, Republicans, can gain a leg-up in the next election,” Oscar De Los Santos, an Arizona state representative, said in a statement to the Guardian.

He added: “What this decision says is that they see politics as a zero-sum game, which makes it more difficult to unite communities, build on our common interests and move our state forward.”

Early in June, Republican lawmakers, who make up the majority of the Arizona house of representatives, created the ballot measure by passing the Secure Border Act, arguing the state law changes were necessary to address record levels of migrant apprehensions at the US-Mexico border in recent years and falsely accusing the government of operating an “open” border.

“Arizonans need to ask Democrats like President Joe Biden and Governor Katie Hobbs why they are fighting to keep America’s border wide open. It’s unsafe, it’s unsecure, it’s un-American, and it’s indefensible,” said Ben Toma, the Arizona house speaker and original sponsor of the ballot referral.

Earlier this year, Hobbs, the state governor and a Democrat, vetoed a similar bill that would have enacted the Proposition 314 measures, but the ballot initiative in November would bypass her veto powers.

While migrant crossings at the southern border soared to record highs in 2021, 2022 and 2023, they have dropped dramatically this year, falling to the lowest level since September 2020 in July. Officials have credited Biden’s move to severely curtail access to asylum, his most restrictive immigration policy to date and one that has alarmed advocates for migrants.

Cesar Fierros from Living United for Change in Arizona, a group that challenged Proposition 314, said it mirrored a notorious 2010 Arizona law that allowed police officers to check the immigration status of people they suspected of living like US citizens but without the necessary authorization.

Meanwhile, Viri Hernandez, executive director at Poder In Action, another group involved in the lawsuit, said the ballot measure sent a message that “continued racial profiling is acceptable in Arizona”.

She added, in a statement : “In the time since SB1070 was passed, two of the largest law enforcement agencies in Arizona have proved themselves incapable of policing our neighborhoods without using racialized violence and discrimination against people of color.”

The measure is similar to a Texas law known as SB4 that would have authorized state police to arrest any person suspected of unlawfully crossing into Texas through the waters of the Rio Grande along the Mexican border. Following Texas’s lead, other Republican-led states including Iowa and Oklahoma, have tried to enact nearly identical laws. All have faced legal challenges from the US justice department.

SB4 has been put on hold by a federal appeal court, with judges saying that for “nearly 150 years, the supreme court has held that the power to control immigration – the entry, admission, and removal of noncitizens – is exclusively a federal power”.

Fierros added that Proposition 314 will allow law enforcement in Arizona “to conduct mass deportations that are very much linked to Trump’s agenda”.

The Republican presidential nominee Donald Trump has repeatedly vowed to oversee mass deportations if he wins the election in November. “On day one, we will begin the largest domestic deportation operation in American history,” Trump said during a recent campaign rally in Freeland, Michigan.

De Los Santos argued that Proposition 314 would disproportionately affect minority groups.

“Turning local police into immigration officers would actually make our communities less safe, as communities of color, especially Latinos, become more reluctant and afraid to report crimes or cooperate with police as witnesses,” he said.

Over a quarter-million US citizens in Arizona live with at least one family member who is undocumented, according to recent statistics by American Immigration Council .

The Grand Canyon Institute, a non-partisan thinktank that provides research on policies that affect the economy, estimated that, if passed, Proposition 314 may increase state-level border enforcement and incarceration costs by $325m a year.