GOP ‘Secure Border’ Ballot Measure Cleared for Voters After Judge Rejects Constitutional Challenge

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.

{snip}

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.

{snip}

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.

{snip}

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.

{snip}