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Arizona votes to put Texas-inspired immigration referendum on November ballot

Arizona Republicans want voters to approve a border security measure that mimics a controversial Texas bill.

By Arelis Hernandez, The Washington Post

Arizona lawmakers voted Tuesday to put a Texas-inspired immigration referendum on the November ballot, the latest effort by Republican state leaders to challenge federal authority on enforcing border security.

The measure will ask voters whether they want to direct law enforcement agencies to arrest those who cross illegally. The resolution mimics Texas’s Senate Bill 4 and is similar to a bill recently signed into law in Louisiana.

In the past year, the Iowa and Oklahoma legislatures have also enacted laws that mirror parts of the controversial Texas law, which is being challenged in court.

Meanwhile, lawmakers in Tennessee, Florida and Georgia adopted measures to more easily penalize and report undocumented immigrants to federal authorities.

The referendum could have broader political implications in a critical swing state in the presidential election. Republicans are counting on drawing to the polls voters upset over President Biden’s handling of border security, while Democrats believe constituents will see the proposal as extreme. The measure is likely to fire up opposition from the same groups that helped Democrats win big in Arizona in 2020 by standing against another controversial immigration-related state bill.

The vote came on the same day that Biden announced new measures blocking migrants’ access to the U.S. asylum system when illegal border crossings reach high levels.

“We believe these types of bills are going to galvanize Latino voters to show up at the polls and reject not just this proposal but also the architects of the bill,” said Cesar Fierros, a spokesperson for Living United for Change in Arizona, an immigrant advocacy organization. The group is one of several that challenged Arizona’s controversial “show me your papers” law, or S.B. 1070. The Supreme Court struck down most of the law’s provisions but upheld immigration checks.

As proposed, Arizona’s Secure the Border Act will make crossing the border illegally a state crime and allow state judges to order deportations. It also includes new penalties for any undocumented immigrant found fraudulently receiving public benefits, selling fentanyl or working without authorization.

The proposal is a compilation of various border measures rejected by Gov. Katie Hobbs (D) earlier this year. Republicans are expecting voters to support it.

Republican state Rep. Alexander Kolodin, a lawyer who was disciplined by the State Bar of Arizona for representing plaintiffs in baseless lawsuits challenging the 2020 election results, said the ballot measure is a response to the Biden administration’s “failures” to uphold federal law.

“The federal government is the sole regulator of immigration policy set by Congress, saying illegal immigration is a crime,” Kolodin said. “Congress said it’s a crime. We also think it’s a crime and we are just allowing our people to enforce it, too.”

Critics say the referendum is a desperate attempt by Republicans to gin up voter turnout in an election year that may wipe away their thin majorities in both legislative chambers. Arizonans could have to slog through at least a dozen proposed measures on the ballot. Democrats who oppose the immigration bill are worried voters will unwittingly choose to approve the measure to get through an exceptionally long ballot quickly without understanding the consequences.

Democratic state Sen. Flavio Bravo dismissed the referendum effort as a political ploy by Republicans that does nothing to solve actual problems.

“They are trying to hold on to their power and are going to put this on the back [of] immigrants,” Bravo said. “This is not about border security.”

The constitutionality of the statutes in Arizona and other states closely resembling the Texas law hinge on the case before U.S. Circuit Court of Appeals in the Fifth Circuit. In that case, opponents contend Senate Bill 4 is unconstitutional because it usurps federal authority on enforcing immigration laws. Lone Star state leaders have expressed a willingness to challenge the federal government’s supremacy on immigration matters all the way to the U.S. Supreme Court.

Arizona’s governor, Democrats, business leaders and some state law enforcement, including those near the border, have opposed the bill. Advocates contend it will lead to the same kind of racial profiling that the 2010 law permitted and will harm families, particularly those where some members are undocumented, but others are in the nation legally. The measures regarding fraud, for example, could confuse parents with U.S.-born children, who may forgo public benefits even if their children are eligible, lawmakers said.

State Sen. Ken Bennett, a Republican, had similar concerns. He vowed not to vote for the referendum earlier this spring unless his colleagues removed a provision allowing law enforcement to retroactively enforce the law against people like “Dreamers.” That measure, which would have penalized young immigrants protected by the Deferred Action for Childhood Arrivals policy, was later removed from the bill.

He also pushed for amendments he thinks will prevent discriminatory behavior from law enforcement.

Under the current proposal, state and local police would have to personally witness someone crossing the border outside a port of entry, watch a video of it or secure some other “constitutionally sufficient” indication that they entered illegally. The grounds for probable cause are more vague in Texas, where how immigrants will be identified by law enforcement under S.B. 4 remains a major point of contention.

Migrants caught crossing illegally in southern Arizona will face a misdemeanor charge for the first offense and a felony for subsequent attempts.

“Without a state law, all deputies and police on the border can do is call Border Patrol, who are so overwhelmed that they can’t get there for hours or even days,” Bennett said. “This is adding a very narrow tool for catching someone in the act. Beyond that, this is not a stop-people-based-on-racial profile and ask-about-lawful-presence bill.”

Along the southwest border, Arizona has seen the highest number of border encounters in recent months. Migration routes have shifted away from Texas, where crossings have largely dropped, since last fall, according to federal data.

State Rep. Oscar De Los Santos, a Democrat, said he still doesn’t think the language is clear enough to prevent racial discrimination by law enforcement. He said he has met locally with several immigration activist groups and that they are preparing to challenge the measure in court, in hopes of preventing it from being placed on the ballot.

“It really does feel like S.B. 1070 days,” he said.

Republicans have included language in the bill that would give minority leaders unprecedented authority to defend the law in court in the event they lose control of either chamber in November.

“Typically, the language has been that the House speaker and the Senate president can intervene on behalf of a law,” De Los Santos said. “They’re explicitly writing into it a brand new provision that we’ve never seen before. It’s clear that they’re terrified of what might happen in November.”

The proposal needed a simple majority in the state House to pass. The Senate had already given the bill its stamp of approval. A state budget analysis said implementing the law would cost more than $300 million at a time when Arizona is facing structural budget deficits. The analysis also noted the state could save money from reduced immigration levels.

Dave Wells, research director for the Grand Canyon Institute, a nonprofit think tank, said several ballot initiatives could draw Democrats to the polls, but whether that’s enough for them to retake control of the state legislature remains to be seen. The GOP has had largely uninterrupted control of the legislature since the 1960s, and predicted Democratic victories haven’t materialized on several occasions.

The immigration bill could play a significant role in driving voters to the polls, particularly young Latino voters. Republicans represent the largest group of registered voters in the state and are unanimously dissatisfied with border matters. Disapproval of Democrats’ handling of immigration matters spans across the political spectrum in the state.

But independent voters, who make up more than a third of the electorate, are less keen to approve extreme measures or deportation schemes, according to University of Arizona political scientist Samara Klar.

“It’s going to be a really close call,” Wells said. “Voters have really short

memories and a lot about elections these days is about turning out your base.”

Once the ballot measure is filed with the secretary of state, opponents have 10 days to file a lawsuit to try to stop the referendum. Immigrant rights groups signaled they would unveil the details of their expected legal challenge on Wednesday.

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