Opponents say the ruling is flawed and they plan to appeal
By Gloria Gomez, The AZ Mirror
A judge on Friday rejected a lawsuit against a GOP ballot referral that would make it a state crime for migrants to cross the southern border and empower local police officers to arrest them, clearing the past for it to go before voters in November.
Late Friday, Maricopa County Superior Court Judge Scott Minder threw out the legal challenge against the “Secure the Border Act” that sought to keep it off the ballot, writing in an 11-page order that the act complies with the Arizona Constitution’s single subject rule.
“Because all provisions of HCR 2060 relate to one general subject — ‘responses to harms related to an unsecured border’ — and because Plaintiffs have not met their burden to overcome Arizona’s presumption of constitutionality, the Court finds that HCR 2060 satisfies the Arizona Constitution’s single-subject rule,” Minder wrote, referring to the act’s underlying legislation.
Four Latino advocacy groups — Living United for Change in Arizona, Poder in Action and the Florence Immigrant and Refugee Rights Network — had sued, arguing that the referral violates the constitutional requirement because its provisions make multiple changes. It creates a new felony offense for the sale of lethal fentanyl, punishes undocumented Arizonans who submit false documentation to apply for jobs or public benefits and makes crossing the southern border illegally a state crime punishable with prison time.
In his order, Minder, who was appointed to the bench in 2017 by GOP Gov. Doug Ducey, dismissed the criticism from the immigrant advocacy groups, saying that their interpretation was too narrow. Previous court cases concerning the single subject rule have found that only a “reasonable” relation between a ballot measure’s provisions is necessary, Minder wrote.
Among the cases Minder cited as proof that the single subject rule allows broad interpretation was the 1990 case Knapp v. Miller. In that case, John Knapp, whose driver’s license was suspended, argued that an act that included regulations on DUI testing, license suspensions and court hearings violated the Arizona Constitution. But the court found that all of the act’s provisions fell under the single subject of “transportation.”
Minder concluded that the “Secure the Border Act” similarly satisfies the state Constitution’s single subject rule. In a legislative findings clause added to the act, GOP lawmakers defended its wide-ranging provisions as solutions for the same issue: the problems caused by an “unsecured” southern border. Minder agreed with that premise, writing that all of the provisions included in the act appear to work towards the same goal.
“Four of the five provisions relate to the presence, verification, benefits, and return of people who cross the border without legal permission. Those four provisions are all deterrents to, or enforcement methods for, crossing the border without legal permission,” he wrote. “Logic and popular understanding shows that those items ‘are parts of, or germane to’ responses to harms relating to an unsecured border.”
The fifth provision, creating a new class of felony offense, with strict prison sentences for people who sell fentanyl that knowingly ends in someone else’s death, also complies with the act’s purported subject, according to Minder. Critics argued in court that the sale of fentanyl is unrelated to someone’s immigration status and loops in all Arizonans, meaning the act encompasses separate and dissimilar subjects.
But Minder said that the drug is sufficiently related to the theme of the unsecured border because it is being illegally smuggled across it.
“Entry of people and of drugs into Arizona through the border are ‘logically or in popular understanding’ connected, which is what the single-subject rule requires,” he wrote.
Minder upheld the legislative findings clause as the justification for the inclusion of the fentanyl provision and said it adequately ties the rest of the provisions together.
“It is enough that the Legislature believes the ‘lethal fentanyl’ and the other four provisions appropriately address harms from the “unsecured border” and that Plaintiffs have not sufficiently shown otherwise,” he wrote.
And, Minder added, a ballot proposal doesn’t have to punish just one group of people to comply with the single subject rule. Previous court rulings have concluded that, as long as a ballot measure complies with the single subject requirement, it can be deemed constitutional, even if it affects multiple different groups of people.
In a Monday court hearing, opponents of the act warned Minder that finding it to be in compliance with the Arizona Constitution’s single subject rule would open the door to lawmakers making any legislative findings to bolster overly broad ballot referrals. Minder acknowledged that risk in his ruling, but said that the mere possibility that future legislatures could violate the constitutional requirement using his reasoning as a basis isn’t sufficient to render the act unconstitutional.
In the end, Minder wrote, opponents simply didn’t meet the burden of evidence needed to prevent the act from being placed on the November ballot. The courts, he noted, operate from a presumption that the legislature passed a constitutional measure, and the evidence against that must be clear and convincing. A successful challenge of the single subject rule, he ruled, faces a high bar: It needs to prove that a ballot measure’s provisions cannot be linked together by any reasonable argument. Now, Minder concluded, it’s up to the voters whether to support the proposal in November.
“Arizona law requires Plaintiffs to overcome the strong presumption that the act is constitutional,” he wrote. “Because a natural connection exists, i.e., all provisions are ‘responses to harms relating to an unsecured border,’ Plaintiffs have not met their burden to show a violation. Absent other challenges, the policies of HCR 2060 should be left to the voters.”
In a statement posted to social media site X, Senate President Warren Petersen applauded the ruling. The Republican from Gilbert, along with House Speaker Ben Toma, took up the defense of the legislation in court after Attorney General Kris Mayes, a Democrat, declined to. The duo were instrumental in passing the act through the legislature, with Petersen co-sponsoring a bill that sought to make it a state crime to cross the southern border that was later ensconced into the act after Gov. Katie Hobbs vetoed it.
In his statement, Petersen lambasted the Democratic governor and the Biden administration for failing to resolve the state’s border issues. Arizona Republicans have repeatedly touted the “Secure the Border Act,” as a solution in a bid to recruit votes during an election year when the border has risen to the top of voter concerns for the first time in five years.
“It’s unthinkable that Democrats and our Governor would stand with Biden and radical left activists, instead of the hardworking Arizona families who are begging for their elected leaders to secure our border and promote safety within our communities,” Petersen said. “As expected, the court ruled in favor of sanity instead of chaos, and we’re grateful we are able to provide this opportunity to voters to have the final say on.”
Jim Barton, an attorney who represented LUCHA in court, said the group’s legal team is still weighing its options.
Ballot measures can only be challenged on their form before voters consider them in an election. A violation of the single-subject rule was among the few legal avenues to prevent the act from making it onto the ballot. Challenges based on the act’s content can’t be launched until after voters have had a say.
That includes a lawsuit over the act’s lack of allocated funding. The Arizona Constitution requires ballot proposals that are likely to incur state spending to make up for that cost, and despite multiple law enforcement and government officials warning of just that during the act’s passage through the legislature, GOP lawmakers refused to account for it.
Alejandra Gomez, executive director of LUCHA, denounced the act as “stop and frisk on steroids” and said Minder’s ruling sets a “dangerous” precedent. She warned that if the act, which has been titled Prop. 314, makes it onto the November ballot, the state’s minority populations will suffer. LUCHA, she said, is prepared to appeal the ruling.
“If Prop. 314 reaches the ballot box this November, many Arizonans will be disproportionately targeted and subjected to suspicion and persecution. This discriminatory legislation will lead to over-policing in every community across our state,” Gomez said in a written statement. “Arizonans, even those hundreds of miles from the border, will be under the intense scrutiny of law enforcement. A routine traffic stop could quickly escalate into an inquiry about citizenship status and possible detainment based solely on the color of your skin and your last name.”
Critics have compared the act to SB1070, Arizona’s notorious “show me your papers law” that led to rampant racial profiling after it empowered local police officers to question the citizenship status of Arizonans during routine traffic stops.
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