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LUCHA sues to block anti-immigration ballot measure over single-subject law

A sweeping ballot proposition approved by the Arizona Legislature might not reach voters after a lawsuit was filed claiming it addresses more than one subject, in violation of the state constitution.


By Camaron Stevenson, The Copper Courier


Living United for Change in Arizona (LUCHA) filed a challenge to the proposal, known as HCR 2060, with the Arizona Superior Court shortly after it was passed along party lines in the state legislature. The complaint claims the measure would be in violation of a mandate in the Arizona Constitution that bills and ballot measures only address one subject.


“Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title,” the state constitution reads. “But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.”

 

Bipartisan support for single-subject law

While the title of the bill—”border; benefits; fentanyl; illegal entry”—covers much of what’s in the proposal, there are provisions that don’t appear to fall under any of the four categories listed. LUCHA’s claim goes further and alleges the title and provisions in the bill are so broad that it violates the single subject rule.


The group is urging the courts to reject the measure in its entirety.


“We want to prevent this from going forward because it takes advantage of this unlawful and sinister tactic, where you put a bunch of stuff in one thing and you make them pick between what they like,” said Jim Barton, the attorney representing LUCHA. “Maybe they’re worried about fentanyl, but they don’t like the racism, and they don’t really think anybody’s taking their jobs, but they worry about public benefits. That person now is given this unfair choice.”


Barton’s argument against violating the single-subject rule is strikingly similar to that of Republican Sen. John Kavanagh, who in 2021 sponsored Prop 129, a ballot referral to expand this rule to include citizen initiatives. It was approved by a majority of voters in 2022, signaling popular support for single-issue legislation.


“It’s unfair to the people who you ask to vote to have more than one subject area, because it’s quite possible that the individual will be very much supportive of one of the subjects, but not supportive of the other,” said Kavanagh. “It’s a matter of treating the voters with respect, and let the people who run these initiatives do a little more work.”

 

Laws affected by the proposition

Despite his vocal support for single-subject laws, Kavanagh and every Republican in the legislature voted to pass HCR 2060, which would create or change nine different state laws, according to a fiscal note on the bill prepared by Mitch Wenzel, a fiscal analyst for the Arizona Joint Legislative Budget Committee.


The text of HCR 2060 outlines four different titles, or subject classifications of state law, that would be amended. The bill’s far-reaching nature is expected to impact at least six different titles in the Arizona Revised Statutes—five more than should be impacted by ballot propositions, as mandated by the Arizona Constitution’s single-subject rule.


The titles that would be affected are:

 

Title 1: General Provision

It is currently a class 2 misdemeanor to falsify documents in order to receive state or federal public benefits. HCR 2060 would raise the charge to a class 6 felony.

 

Title 12: Courts and Civil Proceedings

The proposed law would expand qualified immunity to protect any government employee “from civil liability for damages arising from enforcing laws related to illegal entry or orders to return to foreign nation.”


It would also give power to the minority leaders in the legislature to file lawsuits specifically in relation to HCR 2060, whereas state law currently only affords that power to the attorney general, the Senate president, and the speaker of the House.


The reason for this addition, according to Democratic Sen. Juan Mendez, is a failsafe measure for Republicans. The conservative party currently holds a slim, two-seat majority in both the Senate and the House, and a major effort is underway by Democrats this year to win control of the legislature. The provision would allow Republicans to circumvent Democratic leadership should they lose their majority in either chamber.


“I believe they are adding in the minority positions because they expect to lose their majority in at least one chamber in the upcoming election,” Mendez told The Copper Courier. “And they still want to be able to file lawsuits to stop us from governing.”

 

Title 13: Criminal Code

Crimes involving crossing the US-Mexico border are violations of federal law and can only be enforced by federal law enforcement. HCR 2060 would change the criminal code by making unauthorized entry into Arizona a state crime. A first offense would be a class 1 misdemeanor, and any following offense would be a class 6 felony.


The proposition would also give local judges the authority to deport anyone convicted under this law; currently that authority rests with US Department of Justice (DOJ) immigration courts. The DOJ filed a lawsuit against the state of Texas earlier this year after it passed a similar law, which is currently working its way through the courts. The suit claims the law is in violation of the US Constitution’s Supremacy Clause, which prevents states from enforcing certain federal laws.


Under HCR 2060, Penalties would also be increased for charges relating to the sale of fentanyl if it’s proven that what the individual sold caused the death of another person. The charge would go from a class 6 felony to a class 2 felony, and an additional five-year prison sentence would be added to any sentence.

 

Title 23: Labor

State law requires employers to use a federal program called E-Verify to confirm employees are eligible to work in the United States. HCR 2060 would make it a state crime for a worker to submit false documents through E-Verify. Violations would be a class 1 misdemeanor for a first offense, a class 6 felony for future offenses, and anyone guilty would be ineligible for probation or pardon until after their sentence is served.

 

Title 31: Prisons and Prisoners

With the creation of several misdemeanors and felonies, HCR 2060 also mandates cooperation by law enforcement and the Arizona Department of Corrections. Transportation of convicted individuals is currently the sole responsibility of the ADC; under the current proposal, all law enforcement would be required to transport anyone convicted of illegal entry into the US.

The ADC would also be required to detain anyone arrested or convicted for unauthorized entry if local law enforcement lacks the capacity to do so.

 

Title 36: Public Health and Safety

Any noncitizen who applies for public benefits is required by law to prove their eligibility. HCR 2060 would make it a requirement for any state agency that administers benefits to verify eligibility as well through the US Citizenship and Immigration Services’ Systematic Alien Verification for Entitlements program.

 

Court date imminent

Republicans who support the measure appear unfazed by the lawsuit. House Majority Leader Rep. Ben Toma told KJZZ reporter Wayne Shutsky that HCR 2060 isn’t in any legal danger.


“On the single subject, that’s been cleared already,” Toma said. “We’re good.”

No ballot measure has ever been removed for violating the single-subject law. In 2018, a lawsuit was filed to block a legislative referral that aimed to change how the Citizen’s Clean Elections Commission distributed its funds and give additional oversight authority to the Governor’s Regulatory Review Council. However, both changes fell within Title 16 of the Arizona Revised Statutes, and the Arizona Supreme Court ruled that the changes were related closely enough not to violate the single-subject law.


A court date has not yet been set for the challenge, but Barton said it would be on a judicial fast-track so the matter can be settled before ballots are finalized in August.


“I think the courts will have some motivation to be prompt about it because they’re going to have other challenges,” said Barton. “There will be other ballot measures that the court’s going to have to work its way through, so I can see it wanting to get this one taken care of.”


Should the courts rule in favor of HCR 2060, it will appear as a proposition on the November ballot.


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