Judge Weighs Constitutionality of Arizona GOP’s ‘Secure Border’ Proposal

The future of a controversial GOP-backed ballot measure that empowers local police to arrest migrants now lies with a Maricopa Superior Court judge. On Monday, Judge Scott Minder heard arguments over whether the proposal, called the “Secure the Border Act,” adheres to constitutional requirements and if it can be presented to voters in November.

A coalition of Latino and immigrant advocacy organizations has filed a lawsuit to block the legislative referral from appearing on the ballot. The lawsuit argues that the act violates Arizona’s Single Subject Rule, which mandates that ballot measures focus on a single issue. The act includes provisions criminalizing illegal border crossing, punishing undocumented Arizonans for falsifying documents to gain jobs or public benefits, and establishing a new felony for selling fentanyl that results in deaths.

Supporters argue that the act meets the single-subject requirement because it addresses the “harms” from an unsecured southern border. Attorneys for both the immigrant advocacy groups and GOP legislative leaders presented their cases, with Judge Minder indicating he hopes to issue a ruling by the end of the week to leave time for appeals before ballots start printing on Aug. 22.

Democratic attorney Andy Gaona, representing several advocacy groups, criticized the act as a “patchwork” of provisions from multiple failed bills. He argued that bundling these provisions together is a form of political strategy known as logrolling, which the Arizona Constitution aims to prevent under the Single Subject Rule. Gaona emphasized that the act combines unrelated issues, pointing out that provisions penalizing unlawful entry have no connection to criminalizing fentanyl sales.

GOP leaders, represented by Kory Langhofer, countered that the single-subject rule is being interpreted too narrowly. Langhofer argued that the act should be viewed as a broad effort to address smuggling at the border, encompassing both human and drug trafficking.

Attorney Jim Barton, representing an immigrant rights group, contended that even without the fentanyl provision, the act remains unconstitutional. He said previous case law mandates that if a ballot measure is proven to breach the constitution, the entire measure should be discarded.

Judge Minder questioned the broadness of using the border as a single subject. He also pointed out that although the state legislature included a clause tying the act’s provisions together, such justifications might lead to political “mischief.” Minder noted that while the Arizona Supreme Court had struck down similar cases of bundling unrelated provisions in the past, it never ruled a broad subject like the budget as unconstitutional.

Langhofer asserted that the legislature is allowed to pass broad reform packages. He defended the fentanyl provision, noting that even its criticized caveat, allowing a legal defense based on where the drug was sourced, ties back to border issues. He emphasized that voters have the right to address pressing issues like fentanyl deaths and border security.

The final decision from Judge Minder will determine whether the measure will be struck down or placed on the ballot, potentially setting the stage for a heated debate among Arizona voters come November.