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LUCHA sues to keep border-crossing initiative HCR 2060 off the ballot

Arizona nonprofit's lawsuit says the measure is unconstitutional

By Manuelita Beck, ABC 15

PHOENIX — An Arizona nonprofit is suing to keep a ballot measure to make illegal border crossings a state crime off the November ballot.

Living United for Change in Arizona filed a challenge to House Concurrent Resolution 2060 on Wednesday, just one day after the state House referred the measure to voters.

“We are confident that the courts will have no trouble determining that this referendum to be unconstitutionally defective and keeping it from appearing on the ballot in the 2024 general election,” LUCHA attorney Jim Barton said at a news conference outside the Arizona Supreme Court.

HCR 2060, also known as the Secure the Border Act, would make crossing Arizona’s border with Mexico outside of legal ports of entry a state crime, meaning local law enforcement could make arrests and local judges could issue deportation orders.

The ballot measure also includes other provisions:

  • Stiffer sentences for fentanyl sales in cases where someone dies.

  • Making it a crime to give an employer false paperwork.

  • Criminalizing the submission of false paperwork when applying for public benefits.

  • Requiring agencies that grant public benefits to use a federal database to check the eligibility of non-citizens.

Those provisions, LUCHA’s lawsuit argues, mean the measure has multiple subjects, making it unconstitutional.The Arizona Constitution mandates legislation have a single subject, and Barton told ABC15 the state Supreme Court has previously ruled that the requirement applies to measures that lawmakers refer to voters.

“And the court specifically said, ‘Yep, we're going to use a single subject rule, the one that's in the Constitution, the one that relates to the legislative acts,” he said.

Barton said the requirement is not just a technicality, saying it ensures that popular measures aren’t packages with unpopular ones.

Republican leadership in the Legislature criticized the lawsuit.

“It’s unfortunate special interest groups are attempting to stop Arizona citizens from voting on an issue they consider a top priority,” Senate President Warren Petersen said in a statement. “We’re confident the Secure the Border Act will survive the scrutiny in court and will be approved by voters in November.”

House Speaker Ben Toma said Arizonans have had enough and want change.

“HCR 2060 empowers Arizona voters to have their will heard, and that is clearly panicking liberal leaders and their activist allies who fiercely oppose any efforts to secure the border,” he said in a statement.

LUCHA organizers said the group is committed to defeating HCR 2060 and ending Republican control of the Legislature.

“We're going to be knocking on a million doors and registering 20,000 people to vote,” organizing director Gina Mendez said. “We're going to have conversations with the people in our communities and talk about comprehensive policy.”

HCR 2060 moved through the Legislature within a month. It was introduced May 8 as a strike-everything amendment to a previous proposed ballot measure that would have greatly expanded Arizona’s laws around E-Verify, a federal database that checks employment eligibility. The Senate passed the amended version May 22, and the House approved it June 4.

The border-crossing portions of the measure are based on Texas Senate Bill 4, a law that similarly makes it a state crime to enter Texas illegally. Gov. Katie Hobbs, a Democrat, vetoed a similar bill earlier this year.

The Fifth Circuit Court of Appeals has blocked implementation of Texas SB 4 while lawsuits filed by the U.S. government and the ACLU are pending.

HCR 2060’s border provisions are dependent on the state of Texas prevailing in those cases. If passed by Arizona voters, those sections would become enforceable 60 days after the Texas law takes effect.

Backers say HCR 2060 is a border enforcement measure that won’t be enforced statewide. Opponents say it does not include any geographic restrictions tied to the border.

Critics have compared it to SB 1070, commonly known as the “Show Me Your Papers” law.” Much of that 2010 Arizona law was thrown out by the U.S. Supreme Court because it conflicted with federal law.

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