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After AZ governor rejects immigration bill, Republicans want to send it to voters

Arizona Senate Republicans on Wednesday revealed new details of a plan for a ballot measure that would give Arizona more power to arrest those who enter the United States illegally and deport people directly, without a federal judge.


By Ray Stern, AZCentral


Republicans expect the "Secure the Border Act" measure to pass next week with only GOP votes, bypassing the need for a signature by Democratic Gov. Katie Hobbs by sending it to the 2024 ballot. Republicans say they want it for two reasons: Concern over the Biden administration's border policies that have allowed millions of migrants to enter the country in the past three years, and to help gain political support amid criticism of their abortion policies.


The proposed measure would not take effect unless a similar law in Texas that's held up in federal appeals court has been cleared of constitutional challenges and is being fully enforced. It could also take effect if the U.S. Supreme Court reverses its decision blocking most provisions of Arizona's Senate Bill 1070 law from 2010.


"This is a humanitarian crisis at the border," said Sen. Janae Shamp, R-Surprise. "This shouldn't be a partisan issue." She added that polls show immigration is a top concern for voters.


In a statement criticizing the Republican plan Wednesday, Democratic lawmakers in the Arizona Latino Legislative Caucus called the enforcement trigger a sign of the measure's overall weakness.


"It is an unconstitutional, legally unnecessary, intensely divisive, xenophobic measure designed by Republicans as an election-year dog whistle," said the statement signed by Sen. Anna Hernandez of Phoenix and Reps. Lorena Austin of Mesa, Lydia Hernandez of Phoenix and Mariana Sandoval of Goodyear.


Political consultant Barrett Marson also pointed out on social media a provision in the proposed measure that would require a 21-day notice before any lawsuit settlement to not only the Senate president and House speaker, currently Republicans, but also to the minority leaders of the Senate and House. The provision appears to provide some protection in case Democrats take control of either the House or Senate in November's election.


Lawmakers created a shell for the measure on May 1, and proposed provisions for it were made public this week. Following a mandated second reading of the original shell bill on Wednesday, the measure was scheduled to be heard in the Senate Military Affairs, Public Safety and Border Security Committee. There, Republicans planned to add the new provisions in a strike-all amendment.


What's in the measure

Republicans plan to pass the bill when lawmakers return. The Senate may resume on Thursday, or stick to the Legislature’s current schedule of meeting once each Wednesday. Senate President Warren Petersen told The Arizona Republic there’s a possibility his chamber could take a final vote on the measure by Thursday. But the House, which will return May 15, still needs to approve the amended bill.


Language for the measure shows it incorporates parts of both the Arizona Border Invasion Act, a bill Hobbs vetoed in March, and a previously stalled ballot measure by House Speaker Ben Toma intended to prevent undocumented residents from obtaining state or federal benefits.


Toma was miffed earlier this year when Petersen prevented his proposal from advancing in the Senate after it passed the House on party lines. Petersen said at the time he'd heard concern about Toma's plan from the business community.

Most of the provisions of Toma's earlier measure, which was used as the shell for the new one, were stripped out of the new legislation. Among the aspects cut from the bill were hefty fines of $10,000 for each failure to use the federal government's E-Verify system to double-check worker eligibility.


The new form of House Concurrent Resolution 2060 attempts to strengthen penalties against migrants who submit fraudulent paperwork to federal systems in order to obtain a job or public benefits, making the violations state crimes subject to felony prosecution. It removes the original provision to use E-Verify to check people applying for public benefits and relegates that to the Systematic Alien Verification for Entitlements.


"It turns out the SAVE program is better for that," Toma said. "This will have the same effect."


The measure would make crossing the border without authorization at anywhere else besides an official port of entry a Class 1 misdemeanor under state law, or a Class 6 felony if the person is a repeat offender. Violators must serve 30 days in jail. An exception exists for people approved between June 15, 2012, and July 8, 2021, under the Deferred Action for Childhood Arrivals program.


It would allow deportation if the immigrant agrees to it, but immigrants who decide against a quick deportation could still be deported after prosecution.

The measure also makes selling "lethal fentanyl" a Class 2 felony when the drug sold is the "substantial" cause of death of another person, with penalties increased by five-year prison sentences.


GOP leaders and Gov. Hobbs weigh in on measure

Republican House and Senate members held a news conference with law enforcement officials before the committee hearing, emphasizing the fentanyl smuggling and record numbers of undocumented immigrants and asylum seekers crossing the international border in Arizona. Petersen and Shamp blamed Democrats for "out of control" policies that led to the current crisis.

Yavapai County Sheriff David Rhodes, who leads the Arizona Sheriffs Association, said he supported the measure but hoped to hear the answer to important questions like whether enforcement efforts would be funded. Petersen, in answer to a question about the funding issue later, said the Legislature typically supports law enforcement and would continue to do so.


Art Del Cueto, vice president of the National Border Patrol Council, said the measure would be "extremely helpful" to the Border Patrol's mission.

"Currently, Arizona is getting inundated with the groups coming into Arizona," he said. "We continue to see groups coming across the border non-stop."


GOP lawmakers hope to see courts uphold Texas' SB4 law. It's remained under a stay since the 5th U.S. Circuit Court of Appeals heard arguments last month from Texas officials and the Biden administration, which opposes the law.


Democrats, besides generally disliking the measure, would like to add an amendment barring authorities from conducting raids of migrants in churches, schools and hospitals, said Sen. Flavio Bravo, D-Phoenix. Texas' SB4 contains such an exception.


Hobbs addressed the measure at a news conference Wednesday, saying she agrees ballot measures are a "remedy" available for Arizonans who will have a "chance to weigh in on that," but that the new border measure will "hurt businesses" and farmers.


"It will send jobs to other states and that’s why the business community came out against (the Border Invasion Act) when I vetoed it," she said. "I’m calling on them to come out against this bill."


Lengthy debate unfolds in committee hearing

The Senate committee hearing was preceded by a joint hearing of the Senate Military Affairs, Public Safety and Border Security Committee and House Judiciary Committee, where members of the public and lawmakers discussed and argued over the measure for several hours.


After the hearing began about 1:45 p.m., debate soon turned to whether law enforcement officers would racially profile people suspected of breaking the law, should voters pass it. One of the worries by opponents was how police would develop probable cause to detain someone for suspected of crossing the border illegally.


Rocky Rivera, a 57-year-old Bisbee resident who was one of several people in the hearing wearing a blue Living United for Change in Arizona (LUCHA), told the panel of House and Senate members the measure "weaponizes the police against brown people." He related a time when he and his father were pulled over and detained for more than an hour while police tried to determine his father's status.


"What I'm saying - it does target people who look like me. There's no way around it," Rivera said.


His comments were echoed by lawmakers including Democratic Majority Leader Lupe Contreras, Avondale, who appealed to his Republican colleagues not to pass the measure.


Rep. Quang Nguyen, R-Prescott Valley, pushed back on the comments, saying the measure "is not about going after skin color, it’s about going after illegal entries."


But Rep. Analise Ortiz, D-Phoenix, pointed out that the long-running, expensive federal monitoring of the Maricopa County Sheriff's Office shows that law enforcement agencies do sometimes racially profile members of the public. She criticized people who question "our lived experiences."


Pinal County Sheriff Mark Lamb, a Republican running for U.S. Senate, said migrants from 170 countries are now showing up at the border.


"We're looking for a bill that might give us a little tool to hold some of these people that are coming from who knows where, accountable, when our federal government has failed to secure our border, when our federal government has failed to appropriately vet people coming into this country," he said.


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