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Arizona GOP border security measure will be on November ballot after state House vote

A controversial proposal to give local and state police the power to enforce immigration law will appear on Arizona ballots this fall after Republicans at the state legislature voted in favor of the proposal against opposition from Democrats, Latino rights groups and the business community.

By Wayne Schutsky & Camryn Sanchez, Fronteras Desk

Republicans in the Arizona House of Representatives approved HCR 2060 Tuesday, two weeks after the Senate approved the measure on a party-line vote. If approved by voters, it would make it a state crime to enter Arizona from Mexico outside of a designated port of entry, something that’s already illegal under federal law, but can’t be locally enforced.

House Republicans closed the public gallery prior to the vote, instead requiring members of the public to watch the debate on televisions in separate rooms. Rep. Travis Grantham (R-Gilbert) pointed to security concerns, citing protests that disrupted a Senate hearing on the same bill. 

But critics said that’s a double standard, pointing to raucous conduct by people opposed to a repeal of the state’s near-total abortion ban who were allowed to stay in the gallery in May.

HCR 2060  is similar to a bill passed by Republicans earlier this year that was vetoed by Democratic Gov. Katie Hobbs, but the new ballot referral will bypass Hobbs’ veto pen and go directly to voters on the Nov. 5 ballot. 

Both HCR 2060 and the vetoed legislation were modeled after Texas’ SB4, which is currently blocked from going into effect as it faces a pending legal challenge. 

Republican lawmakers said the measure is necessary to stem the flow of immigrants crossing the border illegally in the face of federal inaction.

The vote came the same day President Joe Biden issued an executive order that will temporarily block migrants who attempt to cross the border illegally from seeking asylum once the amount of daily crossings meets a preset threshold.

Biden lobbied blame at Republicans in Congress for not taking more action on the border.

“The current situation is also the direct result of the Congress’s failure to update an immigration and asylum system that is simply broken — and not equipped to meet current needs,” he stated in a proclamation.

Arizona state Rep. Analise Ortiz consults with House Minority Leader Lupe Contreras after House Speaker Pro-tem Travis Grantham cut her off when she complained about the decision not to allow spectators in the House gallery

But Republicans said the state law is necessary despite that action. 

“But it’s three and half years too late,” House Majority Leader Leo Biasiucci (R-Lake Havasu City) said. “The federal government has been failing to do the job that they have promised to do to protect our border.”

The legislation faced stiff opposition from Democrats, who said it is not the state’s job to police the border. They called HCR 2060 an ineffective solution to the problem that will drain the state’s budget and harm minority communities.

“I can assure you that HCR 2060 is not a solution,” said Rep. Marianna Sandoval (D-Goodyear). “It’s … election year politics.” 

Democratic lawmakers, activists and business leaders compared the legislation to the controversial SB 1070 that was passed over a decade ago and partially overturned by the U.S. Supreme Court. They said they believe that, like SB 1070, HCR 2060 would be used to illegally profile minority residents, a concern Republicans said they addressed by including language in the measure requiring law enforcement to have probable cause that a person crossed the border illegally.

And business groups, including the Arizona Chamber of Commerce, said the state should leave immigration enforcement to the federal government, warning the legislation could be a black eye for the state.

“I am an immigrant,” said House Speaker Ben Toma (R-Peoria). “This is not anti-immigrant. This is anti-lawlessness. It’s about securing our border, because the federal government has failed to do their job.” 

HCR 2060 goes beyond criminalizing illegal border crossings in state law. 

It also includes enhanced penalties for persons found guilty of selling fentanyl that causes the death of another person and those that submit fraudulent paperwork in order to obtain public benefits or evade the federal E-verify system, which verifies an individual’s legal status to work in the U.S. 

The benefits and employment clauses are remnants of legislation crafted by Toma, which did not deal with illegal border crossings.

Beyond those policy concerns, critics also said the way HCR 2060 is constructed poses serious concerns. They say it could violate the Arizona and U.S. constitutions and lead to costly litigation.

They said the measure could also violate an Arizona Constitutional provision that requires ballot referrals to cover a single subject, because it lumps border and immigration measures together with legislation targeting fentanyl trafficking. 

“Instead, [HCR] 2060 embraces a hodgepodge of disparate subjects, including employment verification; immigration law, immigration enforcement; sentencing for drug crimes; laws related to city, town and county administration of public benefits; and the legislature's right to intervene in lawsuits.” said House Assistant Minority Leader Oscar De Los Santos (D-Laveen).

LUCHA, a Latino rights group that opposed HCR 2060, said it will hold a press conference outside of the Arizona Supreme Court tomorrow to announce plans to file a lawsuit challenging the measure. 

“HCR 2060 is a right-wing extremist wish list cobbled together from a variety of previously rejected individual pieces of legislation. It covers everything from an imagined invasion of the state to criminal drug charges to regulating employment. It most certainly embraces more than a single subject. Arizonans against hatred and extremism will have their day in court,” LUCHA attorney Jim Barton said in a statement.

There is also the argument that it violates the Supremacy Clause, giving federal law supremacy when it comes into conflict with state statutes. Much like SB 4, Democrats said HCR 2060 would lead to legal challenges, because immigration enforcement is the purview of the federal government.

But Republicans brushed off that concern, citing a clause that says the portion of the ballot referral dealing with border crossings can not actually be enforced until SB4 or similar legislation has been in effect for at least 60 days.

And then there is the cost. 

The state is currently facing an estimated $1.3 billion budget deficit, and opponents said HCR 2060 is an “unfunded mandate” that will either drain state or local coffers. 

The state Department of Corrections, which would have to incarcerate people arrested or convicted under the law, estimated it would cost hundreds of millions of dollars to fulfill its duties under the law, though Republicans argued any costs to the state would pale in comparison to the costs it currently incurs dealing with the effects of unauthorized border crossings.  

The legislature’s own budget analysts estimated HCR 2060 would increase spending for arrests, prosecutions and incarcerations and could reduce state and local tax collections, though they declined to attach a specific cost.

And even supporters like Yavapai County Sheriff Sheriff David Rhodes said the legislature would have to approve new money to fund local enforcement if voters approve the measures.

De Los Santos said those costs constitute “mandatory expenditures.” The state Constitution requires that ballot referrals that include those expenditures must identify a funding source. 

But Toma, the House Speaker, said those costs will be offset by the money the state saves by reducing illegal border crossings, citing a report by the anti-immigration Federation for American Immigration Reform presented to the U.S. House Budget Committee that found illegal immigration costs the state over $3 billion annually.

“We're saving billions of dollars,” he said. “So often we do that when there's an offset, and it's clearly an offset.” 

Republicans have yet to explain how the state would facilitate a provision allowing those arrested under the legislation to self-deport to their home country instead of face jail time.

“That would be up to the courts to decide, but presumably they would be sent back to Mexico,” Toma said.  

However, at the pressing of Sen. Ken Bennett (R-Prescott), Republicans had modified the law to allow a court to order a person returned to the country from which they entered – Mexico – or the person’s “nation of origin.” And, as Republicans repeatedly pointed out, many of the individuals crossing Arizona’s border with Mexico are from dozens of other countries around the world.

All those concerns, critics said, mean HCR 2060 is not something lawmakers should be sending to voters due to legal protections that make it difficult to update or repeal legislation that receives voter approval.

“I’ve said it before and I will say it again: HCR 2060 will hurt Arizona businesses, send jobs out of state, make it more difficult for law enforcement to do their jobs, and bust the state’s budget. It will not secure our border,” Hobbs said in a statement shortly after the bill passed. 

And some critics have already committed to organizing a campaign to defeat HCR 2060 at the ballot.

Alejandra Gomez, LUCHA’s executive director, said earlier this year that the group plans to knock on “1 million doors” this year to convince voters to oppose the measure. 

Toma said he is not yet sure who will spearhead the campaign to convince voters to approve the measure, but “I think this is going to pass even without much of a funding source on this.”

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