By Howard Fischer
Capitol Media Services
PHOENIX -- Foes of what has been promoted as a "border security'' bill filed suit Wednesday to keep it from ever appearing on the ballot.
Attorney Jim Barton representing LUCHA detailed what he says are a series of constitutional and legal problems with HCR 2060, approved less than 24 hours before by the Republican-controlled House. The Senate had previously voted for the measure; sending it directly to voters bypasses Gov. Katie Hobbs who had vetoed a nearly identical measure.
But Barton said the strongest case for knocking it off the ballot is that it has at least three major provisions, none of which relate directly to each other. That, he said, runs afoul of a provision in the Arizona Constitution which limits all measures to "one subject and matters properly connected therewith.''
And Barton said that even House Speaker Ben Toma, who crafted HCR 2060, spelled out during floor debate Tuesday that it addresses allowing police to arrest those who cross the border illegally at other than a port of entry, requiring verification of the immigration status of those seeking public benefits, and enacting enhanced penalties for the sale of fentanyl when it results in the death of another.
"This is not some mere technicality,'' Barton said of the constitutional provision. "It avoids tucking away tucking less popular aspects into a popular measure.
That practice is known as "logrolling'' 'where voters are presented with a take-it-or-leave-it measure.
"They have to hold their nose and vote for provisions that they don't want to get one that they do want,'' he said. "The framers of the Arizona Constitution said that's a ridiculous way to legislate and they forbid it when they wrote our constitution.''
Toma disagreed.
"I think all of these items are clearly related to the border,'' he said.
Even penalties for fentanyl?
He cited "legislative findings'' in the measure citing the amount of fentanyl seized at the Southwest border almost tripling from 2021 to 2023. Toma said even if all that may be produced elsewhere, much is getting into Arizona from Mexico.
The speaker also pointed out that even that provision -- and the enhanced penalties -- is linked to border security.
"If you can prove that the fentanyl was not manufactured or brought over from Mexico, then that's a defense,'' he said.
Anyway, Toma said it would be "ironic'' if LUCHA got the language about fentanyl were stripped from the bill before it went to voters, saying that is the one piece of the law that appears to have at least some bipartisan support.
But that, said Barton, is not how it works. He said judges can't decide which provisions go to voters and which do not, which is why the litigation seeks to remove the entire measure from the November ballot.
Now the question is whether the Arizona Supreme Court, where the case filed in Maricopa County Superior Court ultimately will end up, concludes that what is in HCR 2060 fits the definition of "logrolling.''
In 2021, the justices struck down a bid by lawmakers to include a host of policy decisions like mask mandates and the kind of paper that counties can use for ballots in its budget legislation. The court concluded that violated the single-subject rule.
But three years earlier the court found no constitutional problem with a measure that on one hand prohibited public funds from the Citizens Clean Elections Commission from going to political parties while at the same time subjecting the commission's rules to oversight by the Governor's Regulatory Review Council. The justices said they were "reasonably related to one general subject.''
Barton, in Wednesday's legal filing, said what lawmakers approved Tuesday doesn't fit that definition.
"HCR 2060 does not amend a specific, single act enacted by the Arizona voters or the Arizona Legislature, but rather sections of ... statutes scattered throughout several titles enacted by numerous, separate legislative acts,'' he wrote. All that, Barton said, is grounds for an injunction to keep the measure off the November ballot.
LUCHA and other plaintiffs, including Executive Director Alejandra Gomez and Assistant House Minority Leader Oscar De Los Santos, are not relying on the courts to see it their way. They already are preparing for a fight at the ballot box.
"While Republicans believe this will rally their base, I can assure you that a different story will be told on the day after election,'' said Gomez.
"It will be a story of first-time voters casting one of the biggest votes in their lifetime,'' she said. "It will be the story of Latino voters mobilizing against hate. And it will be a story of abuelitas (grandmothers) voting hand-in-hand with their sobrinos (nephews) and grandchildren.''
LUCHA already has a political action committee, first set up in 2020, which the lawsuit says will be in a position to take donations and spend money to urge defeat of the ballot measure.
And Barton is prepared for future legal challenges if the proposal is approved.
He said it runs afoul of another constitutional amendment, one that says there needs to be a new source of revenues -- outside of existing state collections -- for any ballot measure that "proposed a mandatory expenditure of state revenues for any purpose.''
There is no such source here despite reports from legislative budget analysts that there will be costs, including to police agencies enforcing the law and county jails and state prisons who will be tasked with holding those arrested, not just for crossing the border at a place other than a port of entry but also for those charged with fentanyl sales and those accused of seeking public benefits which are not legally available to those not in the country legally.
Barton has other legal theories.
"It's preempted by federal law,'' he said. "It's defective.''
That is precisely the same basis on which the U.S. Department of Justice has sued Texas over its approval of SB 4, the model for much of what is in HCR 2060.
A federal appeals court has barred enforcement of the Texas statute while the case is pending, a fact of which Arizona lawmakers are keenly aware: They included a provision here that does not allow the border-crossing crime to be enforced until at least six months after there is a final ruling in that Texas case.
And Barton said even putting in language into Arizona statutes making the law here conditional on what a federal court says in Texas is itself illegal.
Barton acknowledged, however, judicial procedures prohibit him from raising those issues unless or until the ballot measure is approved. It is only the allegation of violation of the single-subject rule that can be heard prior to an election.
No date has been set for a hearing.
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