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Activists sue to block controversial immigration voter resolution from Az ballot

Activists challenged the constitutionality of an Arizona ballot proposal they say violates the state’s single-subject law in a lawsuit filed against Arizona’s secretary of state Wednesday in an effort to block a controversial voter resolution from hitting the ballot in November. 


By Joe Duhownik, Tucson Sentinel


The nonprofit Living United for Change in Arizona, along with Democratic state Representative Oscar De Los Santos and others, object to House Concurrent Resolution 2060, which proposes enforcement of federal law against border crossings outside legal ports of entry at the state level, making it a felony to submit false citizenship documents to government programs for employers and establishment of “lethal sale of fentanyl” as a felony act if the seller knows the product contained fentanyl and the fentanyl was the main cause of death of the user. 


“The Republican legislators have all but conceded that this measure embraces more than a single subject,” Living United for Change attorney Jim Barton said outside the Arizona Supreme Court Wednesday morning as the lawsuit was filed.

Standing behind a podium, he quoted House Speaker Ben Toma, a Republican from Peoria and a sponsor of the resolution that defended it Wednesday afternoon on the House floor. 


“He said 'HCR2060 does three things. It enhances sentencing for fentanyl dealing, it strengthens E-Verify, it prevents submitting false documents for public benefits, and it makes it a crime to enter the state illegally,’” Barton said. He counted the four actions on his fingers, feigning confusion to see four, rather than three. 

“Even in his statement, he admits it’s three things and then he lists four things!” Barton said.


The single-subject rule is meant to prevent voter confusion and forced choice between two subjects voters may have competing feelings for. 


“This rule ensures that acts of the legislature do not result in surprise from unrelated propositions that are under the same act to attract majority support for what otherwise would be unpopular measures,” Barton said. “It avoids tucking away less popular aspects into a popular measure.”


By Republican lawmakers’ admissions in floor debates and committee meetings, HCR 2060 is a collection of provisions from 10 bills sent to Democratic Governor Katie Hobbs, who vetoed them earlier in the year. 


The resolution was sent to the secretary of state Tuesday after the Arizona House gave it the final push it needed to reach the ballot in November. The bill received sharp criticisms that, among many things, it would encourage police to rely on racial profiling to enforce. Democratic lawmakers say a line giving police immunity for actions taken in furtherance of the law confirms those fears. 


They’ve also complained that the resolution would violate the U.S. Constitution’s supremacy clause by enforcing federal law at the state level, and that it violates the state constitution because it lacks a revenue source. 


If the resolution remains on the ballot and is approved by the voters, Barton said Living United for Change will sue on those grounds. But for now, the plaintiffs can’t sue based on projected effects of the legislation. Instead, they must prove why the proposal is unconstitutional on its face to remove it from the ballot. 

The plaintiffs have just under two months to seek an injunction before the ballots are finalized.


Barton said he anticipates Toma and state Senate President Warren Petersen will intervene in the case and argue that the resolution abides by the single-subject rule, as every problem the resolution aims to fix is a result of the border crisis. 

“You can’t say because we think brown people are the problem, everything we do to hurt brown people is a single subject,” Barton said. “That’s ridiculous.” 


Neither Petersen nor Toma immediately replied to emails requesting comment. 

Even if the measure makes it onto the ballot and is approved by voters, the legislation can’t take effect until 60 days after a Texas law the resolution is based on takes effect, if it isn’t struck down. That law is being litigated in federal court under the same claims that Barton listed Wednesday. 


Gina Mendez, organizing director for Living United for Change in Arizona, called on the public to raise awareness of the resolution and encourage more people to vote. 


“Today is the beginning of the end of HCR2060,” she said Wednesday morning. 

She said her organization will canvass “seven days a week” to educate people on the resolution and encourage them to vote against it and the legislators responsible for it.


“It will be our mission to ensure that the architects of this bill will be defeated,” she said. “Because Arizona deserves better than this.”


The secretary of state’s office didn’t answer a phone call for comment.


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