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Activists move to block bloated immigration resolution

The plaintiffs say the ballot referral violates the state constitution by including more than one subject in a single vote.

By Joe Duhownik, Courthouse News Service

PHOENIX (CN) — Immigrant advocates urged an Arizona judge on Monday to toss a legislative initiative set to appear on the November ballot they claim includes too many topics for voters to make an informed decision. 

The nonprofit Living United for Change in Arizona sued the state just days after the Legislature passed House Concurrent Resolution 2060, which, if supported by voters, would enforce federal law against border crossings outside legal ports of entry at the state level, make it a felony to submit false citizenship documents to government programs for employers and establish “lethal sale of fentanyl” as a felony act if one knowingly sells a lethal dose. 

The resolution, passed after weeks of controversial debate in both the House and the Senate, is an amalgamation of Republican efforts to get a handle on the southern border while a Democratic governor fights them at nearly every turn. The result is “plucked from four other bills the Legislature couldn’t pass in this session,” Poder in Action attorney Andy Gaona told Maricopa County Judge Scott Minder in a Phoenix courtroom Monday morning. Poder in Action saw its lawsuit against the state consolidated with Living United’s. 

In a preliminary injunction hearing, the plaintiffs accused the Legislature of “logrolling” — forcing a decision from voters on one topic by connecting it to a more favorable decision within the same vote.

“You can’t make them choose,” Living United for Charnge's attorney James Barton told Minder. “You can’t say ‘If you wanna regulate fentanyl this way, then you gotta regulate library cards that way.’”

Instead, ballot referrals sent to voters must abide by Arizona’s single subject law, meant to prevent voter confusion and forced choices between competing interests. 

But the Legislature provided a subject that Minder seems sympathetic to.

“Smuggling at the border — smuggling people and drugs,” defense attorney Kory Langhofer said on behalf of Senate President Warren Petersen and House Speaker Ben Toma, who intervened in the case as defendants. The state of Arizona and Secretary of State Adrian Fontes take no official position and made no arguments Monday. 

The fentanyl provision includes an affirmative defense if the fentanyl sold is made in the U.S. or imported legally into the U.S. While Democratic lawmakers complained that the added defense is meaningless since it is often impossible to tell where the drug came from, Langhofer said the defense proves the Legislature’s intent. 

“Once you add in the affirmative defense, I think this becomes a very easy decision whether it relates to the topic of smuggling across the border,” he said. He added that it doesn’t matter how infrequently that defense may be invoked. 

Citing the Drug Enforcement Agency’s statements that most fentanyl in the U.S. flows through Mexico, Minder asked Gaona why fentanyl can’t fit neatly into the subject of border smuggling. 

Gaona countered that while fentanyl is related to the border, so are any other illegal products that come from Mexico. If the Legislature wanted to pass a resolution restricting multiple illegal items flowing from Mexico, it could do so, he said. But connecting that to a person’s legal status has no relevance. 

Barton added that provisions on whether people can receive public benefits and on the sale of fentanyl are “divergent topics,” and both are unrelated to whether a person crossed illegally. He said the provisions need to relate to one another more specifically.

“It can’t just be an academic game where you can just draw a circle big enough with your words to capture everything,” he said. 

But Langhofer said the Legislature can essentially do just that. As long as each provision can connect back to the main subject, in this case border smuggling, each provision doesn’t need to interrelate to one another. 

“The problem at the southern border is a broad topic,” he conceded. “There’s a lot that flows from it. But it’s not limitless.”

Minder repeatedly asked the plaintiffs' attorneys why the subject can’t be as broad as the Legislature makes it out to be, hinting at his agreement with the intervening parties. 

He said he expects to make a decision by the end of the week.

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