Immigrant rights group seeks to nullify ‘Secure Border Act’ over missing funding

Gloria Rebecca Gomez

Wed, April 2, 2025 at 12:45 PM MST 9 min read

LUCHA Executive Director Alejandra Gomez speaks on April 2, 2025, about the lawsuit her organization filed challenging the constitutionality of the Secure Border Act, which voters overwhelmingly passed in 2024. Photo by Gloria Rebecca Gomez | Arizona Mirror

An immigrant rights group is asking the courts to overturn the Secure Border Act, the ballot measure voters overwhelmingly approved last year that made it a state crime for migrants to illegally cross the Arizona-Mexico border, because it violates a provision in the state constitution that voters approved more than 20 years ago. 

Living United for Change in Arizona, a progressive organization that was among the most vocal critics of the act while it was being considered by lawmakers last year,” filed a lawsuit in Maricopa County Superior Court Wednesday arguing that the sweeping anti-immigrant law should be struck down because it violates funding source protections in the Arizona Constitution. 

Standing in front of the court on Wednesday afternoon, just hours after the lawsuit was filed, Alejandra Gomez, LUCHA’s executive director, denounced it as a resurrection of SB1070, the state’s notorious “show me your papers law” that gave police officers permission to investigate a person’s legal status during routine traffic stops.

“We remember SB1070,” she said. “We remember what happened when politicians played politics with our dignity and safety. We are taking this fight to the courts because our families, our rights and our futures are on the line.”

Voters last year sided with the GOP lawmakers who crafted the Secure Border Act and sent it to the ballot, with 63% of votes in favor of Proposition 314. The law makes it a misdemeanor to cross the state’s southern border without authorization anywhere but at an official port of entry, which could carry with it up to 6 months in jail. Local police officers would be empowered to arrest migrants suspected of violating that law, and state judges would be able to issue deportation orders. 

While that provision is frozen until the U.S. Supreme Court rules a near-identical law in Texas can be enforced, other parts of it are active, including making it a class 6 felony to use false documentation to apply for benefits or jobs and creating an entirely new class of felony for people convicted of selling fentanyl that later results in someone else’s death. 

The problem with the initiative, according to LUCHA attorney Jim Barton, is that the Arizona Constitution requires ballot measures that result in any government spending to identify a funding source. And that money can’t come from Arizona’s general fund. 

That constitutional provision dates back to 2004, when Republican lawmakers sought to prevent advocacy groups from going to the ballot to force the state government to pay for programs that the GOP majority didn’t want. But the constitutional restriction applies also to measures sent to the ballot by the legislature.

When lawmakers last year were considering the Secure Border Act, multiple law enforcement officials travelled to the Capitol to warn that they would need more resources to enforce its directives. 

But lawmakers still failed to set aside a funding stream, something the Arizona Mirror exclusively reported on. 

That, Barton said, nullifies the initiative. 

“Because Proposition 314 will cost millions of dollars and it has no funding source, it’s unconstitutional and unenforceable,” he said. 

In Texas, more than $11 billion of taxpayer money has been set aside to fund the Lone Star State’s restrictive border policies.

Although the provision in Prop. 314 making it a state crime to cross the border without permission is likely the one with the biggest price tag, the other parts that are being implemented also cost money.

In the brief, Barton pointed out that the act requires state agencies to double-check a person’s eligibility for public benefits through a federal database if they are a noncitizen, even if they have legal status. That database, called the Systematic Alien Verification for Entitlements, charges individual agencies a $25 monthly fee and a separate fee for each inquiry. That per-inquiry fee is currently $1.50 but will incrementally increase in the coming years until it hits $3.50 by 2028.

Several state agencies already use SAVE, including the Department of Health Services to verify eligibility for AHCCCS and the Department of Economic Security to make sure applicants are eligible for food stamps or cash assistance, but Barton told the Arizona Mirror that the Secure the Border Act threatens to impact a host of new public benefits, including library cards.  

During Wednesday’s news conference, Barton also noted that lawmakers had ample notice about the potential economic hit of the Save the Border Act. While it was still being drafted, the Joint Legislative Budget Committee released a fiscal impact report that estimated it would cost state and local law enforcement as much as $41 million every year to make arrests and transport people with orders of deportation to a port of entry. 

And the Arizona Department of Corrections, Rehabilitation and Reentry, which would be required under the act to house people accused of illegally crossing the border if local law enforcement agencies don’t have the capacity to, could see costs of up to $178 million. The nonpartisan Grand Canyon Institute, meanwhile, projected the total annual costs at $325 million if the provision giving the state the power to enforce federal immigration is made effective. 

But, Barton said, while GOP lawmakers knew about the costs, the Arizonans who voted to approve the Secure the Border Act were never given the opportunity to consider that drawback. 

“The legislature chose to lie to the voters and hide the cost of this measure when they presented it to the voters,” Barton said. “Luckily, in the state of Arizona, that is unconstitutional. It is unconstitutional to ask voters to pass legislation without identifying the funding source when it costs money.” 

When faced with questions about the costs, GOP lawmakers last year repeatedly waved away the concerns, saying they would figure that out later — or that it would pay for itself by saving the state vast sums because the rate of illegal immigration is even more expensive than any costs that could be incurred by enforcing federal immigration laws. 

In the lawsuit, LUCHA lambasted that reasoning, with Barton writing that nowhere in the Revenue Source Rule is any exception made for funding sources established after the fact, or for “hypothetical offsets.” 

Senate President Warren Petersen, who helped write the Secure the Border Act and shepherded it through the legislature, did not respond to requests for comment on the lawsuit. Kim Quintero, a spokeswoman for Petersen and Senate Republicans, said he was not willing to speak on the issue until he’s able to review the lawsuit himself. Follow-up questions about whether Petersen believes that the act complies with the Revenue Source Rule went unanswered.

This isn’t the first time LUCHA and Barton have sought to void Prop. 314. Before the initiative was placed on the ballot last year, the group attempted to convince the courts that, because it spans so many different parts of Arizona law, it violated the state constitution’s single-subject rule. But that challenge failed, with the Arizona Supreme Court agreeing with Republican lawmakers, who argued that all of the act’s provisions fall under the overarching theme of border security.

But this lawsuit is different, Barton said, because the Arizona Constitution is very clear about funding sources and it isn’t open for interpretation. 

“I don’t see any wiggle room here,” he said. “The law says you have to provide funding for mandatory expenditures. This mandates expenditures and it doesn’t provide a source.”

And that earlier loss in court will also aid LUCHA: Barton noted that the courts have already concluded that all the provisions in Prop. 314 deal with just one subject, meaning that Republicans won’t be able to argue that just one part should be struck down. So, if any part of it is judged to be in violation of the Arizona Constitution, the whole act will have to be nullified. 

Along with arguing that Prop. 314 is unconstitutional because it fails to provide money to pay for it, LUCHA is also claiming that it violates two other legal principles enshrined in the state constitution, which govern how lawmakers make policy and to what degree government branches can encroach on each other’s responsibilities. 

One of them, which is included in the Arizona Constitution, is the separation of powers. Barton said that a provision in Prop. 314 defining probable cause for officers who arrest migrants infringes on the judicial branch’s authority. 

That provision was added by GOP lawmakers after public outcry from immigrant rights groups and criticism from Democrats that it would result in discriminatory policing. It states that an arrest under the new law may only be made if an officer witnesses a person crossing the border unlawfully, there is a video recording of the event, or there are “other constitutionally sufficient indicia of probable cause”. 

In the lawsuit, Barton argues that lawmakers have no authority to define what probable cause is because that’s the court’s job, and they’ve already done it. In 1974, the Arizona Supreme Court ruled that probable cause is when an arresting officer has a “reasonably trustworthy information of facts and circumstances” which lead them to a reasonable inference that a crime is being committed, that a specific person is committing or has committed it and that a reasonable person would believe the same. 

The Arizona legislature’s decision to write a different definition of probable cause amounts to lawmakers “seeking to take over a judicial function,” according to Barton.

Barton also claimed that Republicans committed an unlawful delegation of legislative authority by making the effectiveness of the Secure the Border Act dependent on the outcome of a case against a near-identical law in Texas. That law, SB4, was challenged in federal court by the Biden administration and remains tied up in litigation. The Arizona iteration is on hold until the Texas version or similar laws in other states are allowed to go into effect. Putting the enforcement of Arizona laws into the hands of other states where Arizona has no input into their legal strategy is unconstitutional, Barton said. 

“The Arizona legislature gave our lawmaking over to the Texas legislature, and said, ‘Well, once Texas gets their law through, then and only then will our law take effect,’” he said. “You can’t do that. The Arizona legislature has the responsibility to make laws for the state of Arizona.”

Read Original Article Here: https://www.yahoo.com/news/immigrant-rights-group-seeks-nullify-194500664.html