Republicans want judge to rule on border security vote

PHOENIX – Republican legislative leaders are asking a judge to let voters decide whether they want to pass a multi-pronged measure to protect border security

In a court filing, Kory Langhofer, one of their attorneys, said the challengers are wrong to argue that what GOP lawmakers have dubbed the “Border Security Act” violates constitutional requirements that ballot measures deal with only one topic.

Langhofer acknowledged that the bill, approved on a party-line vote as HCR 2060, contains several different provisions. They include:

• Establishing a crime for people who are not there legally and want to enter Arizona from Mexico other than through a port of entry.
• Tightening penalties for using false documents to obtain public benefits or to circumvent regulations on the employment of people without documents.
• Strengthen laws requiring public documentation to obtain public benefits.
• Imposing tougher penalties on sellers of fentanyl that causes the death of another person.

But Langhofer told Maricopa County Superior Court Judge Scott Minder that all of the legislation relates to one overarching theme: “responding to the harms associated with Arizona’s unsecured southern border.”

The downside is whether voters will have a chance to decide on the package in November.

In the lawsuit, several groups challenging the law pointed out that lawmakers tried to pass various provisions as separate bills earlier this session, all of which were vetoed by Gov. Katie Hobbs. But Langhofer said history is “irrelevant” to whether lawmakers can now combine the issues into one ballot initiative.

But lawyer Andrew Gaona, who represents several organizations, said it was ignoring what he said were the clearly different nature of the regulations.

“The legislature’s attempt to impose legal consequences on individuals who do not enter the country and state through a legal port of entry or who submit false documents or information when applying for employment or public benefits has been Thread “This has to do with imposing criminal liability on any adult found guilty of ‘selling deadly fentanyl,'” he said. And Gaona described the arguments presented on behalf of GOP leaders as “an effort to save HCR 2060 as an election-year political issue” to “divide our communities.”

But Langhofer said Minder only needs to look at what lawmakers included in the “legislative findings” attached to the measure to prove his case that all the issues are related.

It has begun, he said, telling lawmakers that Arizona is facing a “public safety crisis” “caused by transnational cartels engaged in rampant human trafficking and drug smuggling across the state’s southern border.”

“Regarding fentanyl’s role in this crisis, the legislature said that ‘transnational cartels are funding their operations by smuggling this deadly drug across the Southwest border’ and that ‘illegal fentanyl is a leading cause of Arizona’s rising drug overdose deaths,’” Langhofer said.

There is something else that ties the issue of increased penalties for fentanyl traffickers to the border package: the law states that a person accused of this crime can avoid harsher penalties if he or she can show that the drug and its chemical predecessors were manufactured in the United States or legally imported.

This escape clause – formally called the “firm defense” – drew derision during the debate from House Minority Leader Lupe Contreras.

“I don’t think you’ll find ‘hecho in Mexico’ on the back of a fentanyl pill,” the Avondale Democrat said.

Leaving aside the specific provisions, Langhofer maintains that the opponents’ arguments that the bill does not meet the requirements of the single object principle are without merit as a matter of law.

He cited case law that states that the question of what constitutes a single entity “should be given a broad and extended meaning.”

On the other hand, Langhofer said, a measure can only be considered to violate the single entity principle if it involves “distinct and divergent entities that cannot in any way be considered to have any legitimate connection or relationship with each other.” Crucially, courts should exercise “judicial restraint” with respect to legislative decisions about how to legislate.

“The Legislature designed HCR 2060 as a comprehensive approach to addressing the public security crisis at this nation’s border by raising costs and reducing incentives for illegal activities that have undermined border security,” Langhofer wrote. “The overall goal of HCR 2060 is therefore to curb such illegal activity and thereby enhance border security.”

No trial date has been set yet.