By Howard Fischer
Capitol Media Services
PHOENIX -- Calling the voter-approved measure legally flawed, a Latino immigrant rights group is leading the fight in asking a judge to block Proposition 314 from taking effect.
Legal papers filed Wednesday in Maricopa County Superior Court point out the key provision of the measure -- allowing police to arrest those who cross the border at other than a port of entry -- effectively and illegally delegates the question of whether it can be enforced to what happens to a similar law in Texas which is itself being challenged. Attorney Jim Barton said if Arizona legislators want to make a law, they have to decide that themselves, not make it contingent on what happens elsewhere.
That, he said, is just part of the problem.
Barton said the Arizona Constitution says any voter-approved measure that carries a price tag also is required to come up with plan to fund it, not just right now but for what it will cost in the future.
He said even proponents admitted that there will be a cost to not just enforce the new language about police making arrests and the court costs but also other provisions dealing with having to check federal databases to verify someone's immigration status. In fact, legislative budget staffers pegged the cost at close to $60 million just for the first six months it is in effect.
Finally, Barton said the measure illegally spells out what a police officer can consider "probable cause'' to determine if someone entered the country illegally. But he said only the courts can make that definition.
But Alejandra Gomez, executive director of Living United for Change in Arizona, one of the groups challenging the law, said the legal fight is about more than just what is in Proposition 314.
"It a part of a larger coordinated effort to turn Arizona into a testing ground for Trump's mass deportation strategy,'' she said of the measure at a Wednesday press conference.
"We are taking this fight to the courts because our families, our rights, and our future are on the line.'' Gomez said. "Prop 314 is not just about enforcement. It's about fear.''
The most visible part of the measure, approved in November by a margin of 62.5 to 37.5, allows police to arrest those who enter Arizona from Mexico other than at a port of entry. It is modeled after SB 4, a similar law enacted in 2023 in Texas.
But enforcement of that Texas law remains on hold while a federal appellate court decides whether immigration is the sole province of the federal government. Arizona lawmakers, rather than picking their own legal fight, agreed to condition Prop 314 on Texas getting the final go-ahead, something that could require the issue to get all the way to the U.S. Supreme Court.
Republicans in the Arizona Legislature actually had approved a measure last year to authorize such arrests, only to have it vetoed by Democratic Gov. Katie Hobbs. So the GOP leadership decided to bypass the governor and send it directly to voters.
The final version that went on the ballot, though, also contains other issues, including creating one crime of using forged papers to seek public benefits, and another one making it illegal to get around existing requirements to prove legal presence to work in the state.
Lawmakers also added a section on fentanyl sales.
Selling the drug already was a felony, punishable by a presumptive sentence of five years in prison. The new language adds another five years if the seller knew the drug being sold was fentanyl and if it resulted in the death of another.
This lawsuit seeks to overturn the entire statute.
"So much of it is unconstitutional that it can't stand on its own after you take out all of the unconstitutional bits,'' Barton said. "The tattered remains of this law are not enough to stand on its own.''
There was no immediate response from Senate President Warren Petersen. The Gilbert Republican, who is running for attorney general in 2026, was one of the key supporters of the effort to put the issue on the ballot.
But GOP backers already had anticipated the litigation, particularly over the issue about the measure, specifically including the one about covering the cost.
The constitutional provision cited by Barton spells out that any ballot measure that proposes mandatory spending must also provide a new source of dollars "sufficient to cover the entire immediate and future costs of the proposal.
A report by legislative budget staffers said there will be costs associated with arrests, prosecutions and incarceration of those who police arrest for crossing the border illegally. That includes an estimated $41 million in law enforcement costs and $16.6 million for incarceration in just the first six months, with that latter figure estimated to his $178 million by 2029.
But putting a precise figure on that has been difficult, at least in part because there is no way to know how long any individual who is arrested will remain in the system
That is a critical number because the measure actually says anyone arrested for a first-time offense of crossing the border illegally can instead actually agreed to be deported instead of risking conviction and time behind bars. And there are no estimates of how many of the 1,500 who are caught -- a figure that the governor's office said came from the Department of Public Safety -- would choose deportation versus incarceration.
And then there are smaller costs.
For example, the report said that the law requires state and local agencies that provide public benefits to use a database administered by U.S. Citizenship and Immigration Services to verify if someone is eligible. And the cost of that, currently $1 for each inquiry, will rise to $3.10 by 2028 -- plus a minimum monthly service charge.
Proponents of the measure, however, cited figures from the Federation for American Immigration Reform which estimated that there are 610,000 individuals in Arizona without lawful presence. It pegged the potential savings at $3.2 billion a year, including nearly $1.4 billion for education, $631 million for justice-related and incarceration programs and the balance for other programs such as health care and public assistance.
But the legislative staffers said they were unaware of how FAIR derived its figures.
Costs aside, the heart of the issue is giving state and local police the authority to arrest those who are crossing the border anywhere other than an official port of entry. And that goes to the question of whether it can be enforce in a race-neutral fashion.
The ballot measure says police can arrest someone only if they have "probable cause.'' That includes actually witnessing someone entering the United States illegal or if they have a recording of the event.
There is, however, also a catch-all provision which allows police to make an arrest if they have "any other constitutionally sufficient indicia of probable cause.'' That, however, is not defined in the legislation.
And that goes to how challengers say the law is likely to be enforced in a discriminatory way.
Martin Hernandez, one of the plaintiffs in the lawsuit, said that goes to the fear many Latinos already have of being targeted, which is why they often are hesitant to deal with police.
"When you look like me, speak like me with a heavy accent, and when your English is less than perfect, you know that reporting a crime you'll be the one that's going to be questioned, not the others,'' he said.
Gomez said all this is part of a larger MAGA agenda.
"This new political order is targeting our communities by criminalizing immigrant families, undermining civil rights, and fueling fear and division across our state,'' she said.
"The MAGA extremist agenda is not about safety or justice,'' Gomez said. "It's about control, it's about cruelty, and silencing the voices and the very people who make Arizona vibrant.''
Barton said the issues in the lawsuit are not new. But he said courts will not address legal or constitutional issues of ballot measures unless and until they have been approved.
No date has been set for a hearing.
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