Posted Oct 6, 2024, 2:01 pm
Cris Seda Chabrier
Almost two-thirds of Arizona voters are in favor of Prop. 314, according to a recent Noble Predictive Insights Poll. But experts and activists, including law enforcement, have come out strongly against the measure, calling it a reprise of the state's infamous SB 1070 law, most of which was found to be unconstitutional a decade ago.
"Most people strongly back holding drug dealers responsible for the death of a person who consumes a drug containing fentanyl (77% support), and requiring employers to verify the immigration status of workers (75% support)," the poll found. There is less support for modifying how migrants obtain public benefits.
Kavanaugh staunchly supported the proposition, arguing that it would only target people who cross the border outside the official points of entry to traffic fentanyl and people.
“These are the worst of the worst. These are people who have criminal records,” the GOP senator said. “They can't go to the legal border crossing where they would be interviewed and given status to enter. Instead, these people sneak in between our borders.”
Many migrants, including families with small children, are fleeing cartel and police violence in Mexico, Central America and other countries. They are desperate, and often choose to seek asylum by entering the U.S. outside of regular border crossing points to surrender themselves to Border Patrol. The measure does not distinguish between them and smugglers.
Fentanyl is mostly smuggled by people who cross through official ports of entry, and most smugglers are U.S. citizens, law enforcement data shows.
Ortiz came out strongly against Prop. 314 due to these factors.
"Prop. 314 will implement New York-style stop and frisk policy across the entire state of Arizona, turning every local law enforcement officer and civil servant into a federal immigration agent without giving them any funding or training to do the job. We could see churches and businesses raided, we could see children detained in cages. Prop. 314 is SB1070, the “show me your papers law,” on steroids.” she said.
“Prop. 314 is nothing more than a cheap political distraction from what we actually need to do on the federal level. I'm not falling for it,” said the Democrat.
“And neither is the Hispanic Chamber of Commerce, the Arizona Education Association, faith leaders, civic and law enforcement, leaders from border communities, who are all joined in opposition to Prop. 314,” Ortiz said during the debate.
What does Prop. 314 say?
Dubbed the "Immigration and Border Law Enforcement Measure," it would make crossing the border anywhere apart from the official ports of entry a state crime. If convicted for the first time, it would be a misdemeanor, but for those previously convicted, it would become a felony.
A second provision would criminalize undocumented people who submit false documents when applying for public benefits or for jobs that require the E-Verify system. It would also make selling fentanyl a felony if it results in someone’s death.
Law enforcement officers, such as local police, could then arrest people who can’t prove citizenship or legal residency status in the United States, and it would allow state courts to issue deportation orders. That provision is unconstitutional, critics say, as immigration is solely the legal province of the federal government.
Currently, only the federal government has the power to regulate immigration, but some local law enforcement already assist Border Patrol in Arizona.
Is Prop. 314 even constitutional?
Constitutionality, along with economic and human rights concerns, was one of the reasons why Gov. Katie Hobbs vetoed HCR 2060, known as the Arizona Border Invasion Act. After the Democrat's veto, the Republican-controlled Legislature replaced it with a ballot measure. A referendum sent to voters cannot be vetoed by the governor.
It was modeled on Texas’ SB 4, which was passed by the state’s legislature in 2023, but has been caught up in multiple court challenges brought by the federal government and civil rights organizations.
The legal reasoning behind SB 4 and Prop. 314 rests upon Section 10 of the U.S. Constitution which says that states “may engage in war” without the consent of Congress if subject to military invasion or in “imminent danger” of it.
Proponents, such as former Arizona Attorney General Mark Brnovich, a Republican, argue that criminal cartel violence and unauthorized border crossings constitute an invasion.
But, the federal government is not buying the argument.
“SB 4 is clearly unconstitutional,” said Associate Attorney General Vanita Gupta in a press release that accompanied the federal government’s lawsuit against the Texas’ law, filed this past February.
“Under the Supremacy Clause of the Constitution and longstanding Supreme Court precedent, states cannot adopt immigration laws that interfere with the framework enacted by Congress.”
The lawsuit makes this abundantly clear.
Texas's "efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations. SB 4 is invalid and must be enjoined,” the Department of Justice said in the filing.
The federal government’s argument also rests upon the Supreme Court decision — Arizona v. United States in 2012 — that struck down much of Arizona’s SB 1070 law.
For its part, the Mexican government has stated that they will not collaborate with state law enforcement on deportations.
“The coordination that the government of Mexico carries out is with the federal authorities,” said Rafael Barceló, Mexican consul in Tucson.
All five Mexican consulates in Arizona came out against Prop. 314.
Key differences between SB 4 and Prop. 314
SB 4 prohibits arrests in places of religious worship, schools, healthcare facilities and facilities that provide forensic medical examinations to sexual assault survivors. Prop. 314 has no such exceptions.
And since Prop. 314 is a ballot referendum and not a state law, it cannot be significantly amended by lawmakers. A measure repealing it would need to be placed on the ballot for voting in a following election cycle.
Potential for racial profiling
For many experts and activists, Prop. 314 is a throwback to SB 1070, which, among other provisions, allowed state police to detain anyone suspected of being an undocumented immigrant.
“If we go back to what SB1070 was in Arizona, it was the law that said you could be questioned on your citizenship when you're pulled over. This is SB1070 on steroids.” said Lena Avalos, senior policy advisor for Living United for Change in Arizona, a Latino activist organization.
“You can be questioned on your citizenship no matter where you are, right? The traffic stop isn't the probable cause,” Avalos continued. “What you look like, the language you speak, how you dress is the reason for being stopped.”
“The motivations behind this proposition are clear: to instill fear, promote racial profiling, and enable the unchecked over-policing of Arizona’s neighborhoods, said LUCHA’s executive director Alejandra Gomez in a press release.
Indeed, in Prop. 314 there is no provision regulating when someone can be stopped and asked for documentation. The E-Verify and fentanyl parts of the measure both apply to anyone residing in the state without authorization.
Pima County Republican sheriff candidate Heather Lappin disagrees that the measure could lead to racial profiling.
“It requires a law enforcement officer to have probable cause, which means they would have to have seen somebody crossing the border in an area other than the port of entry,” she said and added that in the city of Tucson, there is no way to know where someone has crossed.
Scant support from law enforcement
Lappin said that she would not have enough deputies to enforce Prop. 314.
“We don't have the staffing for that. We just don't have the bodies to go man the border," she said.
Tucson Police Department Chief Chad Kasmar echoed Lappin.
“We don't have the capacity or desire to be any kind of arm of the federal immigration departments,” he said in a radio interview with Bill Buckmaster and Tucson Sentinel journalist Paul Ingram. Kasmar added that TPD already collaborates with Border Patrol and instead called for more technology to be placed at the border to intercept fentanyl smuggling.
Democratic candidate and incumbent Sheriff Chris Nanos also rejected the measure during a debate this past June, saying it does not assign funding for already short-staffed deputies, and that the border is a federal issue.
"I'm praying and hoping that our citizenry knows better and will vote the right way and say, no, to this stupid bill," Nanos said to cheers and applause from the crowd at the event.
His predecessor, former Republican Sheriff Mark Napier, has called the measure an "ill-conceived political stunt" that "arguably contributes to the problem by degrading rational approaches to address the issues through the posing of a politically driven solution that is entirely without clear merit."
Enforcement would cost millions in state dollars
Prop. 314 would cost millions to enforce, officials said.
“The (Department of Public Safety) estimates their annual costs under the proposition at $3.8 million. DPS further extrapolated their experience to an overall state and local total apprehension cost of $41 million,” stated a recent report from the Joint Legislative Budget Committee, which is responsible for fiscal policy analysis in the Republican-controlled Arizona legislature.
Costs for incarceration could balloon to $178 million.
Additional unknown administrative costs could be incurred by the added workload for public attorneys and defenders.
K-12 education spending could also be cut since the funding is portioned by school enrollment. Arizona public schools admit children regardless of immigration status.
The progressive Arizona Center for Economic Progress has even grimmer numbers.
“We estimate the cost alone for detaining people under Prop 314 for three to six months in Arizona to be $224 million to $447 million,” said ACEP in a recent analysis that estimates 27,000 border apprehensions at $92 per day detainment cost.
Local jails overwhelmed by an influx of detainees could become less safe for inmates and staff. Pima County’s jail is particularly deadly. An investigation by the Tucson Sentinel found that inmates died at nearly four times the national average between January 2020 and February 2022.
"Are we to assume that the state, county, and local law enforcement agencies have sufficient human resources to establish outposts of some kind in the vast areas of the border between the ports of entry? They do not. When did you last hear a law enforcement leader complain about having too many personnel?," former Sheriff Napier wrote.
"Assume for the sake of a flawed argument that law enforcement could engage in robust enforcement of the new law, what about the other strains on the already overburden criminal justice system? Do we have the resources to incarcerate and adjudicate a considerable number of new violations? Most likely not," the Republican wrote.
Less safety for Latino communities
Opponents said that SB 1070 resulted in a decline in public safety for Latino communities, since people became afraid to report crimes in fear that they or someone they loved would be identified as undocumented and deported.
Prop. 314 could revive these fears because local law enforcement, instead of federal authorities, could order deportations.
“People who live in migrant families in Arizona have for a long time, derived from that legislation, been afraid to report a crime when they are victims or when they are witnesses,” said Barceló, the Mexican consul.
Latino families often have mixed immigration status in which some members are citizens or permanent residents, while others are undocumented.
“It makes many neighborhoods and many parts of the city more unsafe because of this distrust,” said Barceló.
Bad business for Arizona
“They should call it the anti-business policy,” said Monica Villalobos, president of the Arizona Hispanic Chamber of Commerce.
“It’s bad for the hospitality industry, it's bad for tourism and then closer to home, it's bad for construction and agriculture. All of the different industries are affected because it is a domino effect. There is a workforce shortage in Arizona, and if we take, say, one industry like construction and we have less workers in that area, now you're impacting the ability to build homes, which means you're now creating more homelessness,” she said.
“So it's a slippery slope when you cut back on the workforce.”
The U.S. Chamber of Commerce classifies Arizona’s worker shortage as “severe”: there are approximately 71 workers for every 100 jobs.
Villalobos also specifically said that the added bureaucracy of the E-Verify system could raise costs for minority-owned small businesses.
AZHCC is not the only business chamber of commerce against Prop. 314.
Rob Elias, president of the Tucson Hispanic Chamber of Commerce, agreed with Villalobos: "By opposing Prop. 314, we advocate for an Arizona where everyone can thrive and contribute, ensuring a prosperous future for all,” said Elias in a text message.
In its Voter Guide, the Tucson Metro Chamber urged people to vote no on Prop. 314 due to the “potential negative effects on local resources, the business environment, and the community by making local law enforcement do the job of the federal government.”
Additionally, measures like Prop. 314 and SB 4 have the potential to affect trade with Mexico which is the United States’ biggest trade partner, with total two-way goods trade at $807 billion.
What about fentanyl?
Prop. 314 penalizes the illegal sale of fentanyl after a death occurs. There is no evidence that enforcing a law that penalizes the sale of fentanyl after it has been trafficked from Mexico to the United States would prevent smuggling at the border.
Plus, as stated before, most fentanyl comes into the United States through official border crossings, carried by people legally authorized to cross, usually U.S. citizens. There is no evidence that higher penalties would affect fentanyl demand and distribution.
Who else is against it?
Workers at the Josefina Ahumada Worker’s Center in Tucson worry the law will criminalize them, lead to racial profiling and prevent them from having jobs, even if the person is authorized to be in Arizona as U.S. citizens, permanent residents or asylum seekers.
“To be worried that the police haven't grabbed you, that is a physical and mental wear and tear,” said José Fuentes, a Venezuelan man who recently migrated to Arizona through a legal port of entry.
“People commit suicide because they came here with a desire to help their family,” and can’t do so due to criminalization, said Fuentes.
The Catholic Bishops of Arizona and the Arizona Association of Education have also issued statements opposing the bill.
Commentaires