Senate Republicans approve sending ‘secure border’ act to the November ballot

Republicans in the Arizona Senate approved a proposal on Wednesday that seeks to give police officers across the state the power to arrest migrants, and local judges the authority to deport them, over the objections of Democrats, business leaders and immigrant advocates. 

The ballot referral, titled the “Secure the Border Act,” would ask voters in November to decide whether Arizona should be allowed to enforce federal immigration law. 

By sending House Concurrent Resolution 2060 to the ballot, Republicans would circumvent Gov. Katie Hobbs’ veto. The proposal is a collection of GOP bills that have previously failed to pass. Among them is one that Hobbs already vetoed, which would have made it a state crime for migrants to cross the border anywhere but at an official port of entry. 

Another portion of the proposed ballot referral makes it a class 1 misdemeanor for undocumented Arizonans to use false documentation to apply for jobs or public benefits, such as housing or food assistance. 

And a third provision creates an entirely new class of felony, with much harsher punishments, for people who knowingly sell fentanyl that later results in someone’s death. While a class 2 felony is punished with between 4 to 10 years in prison, a conviction under the new felony offense would automatically increase sentences by 5 more years.

A move to push the proposal through the state Senate on May 15 was foiled after a lone Republican withdrew his support. Sen. Ken Bennett, R-Prescott, who has crossed party lines to kill other ballot referrals this session, warned last week that his vote was contingent on amendments that would reduce the penalties for submitting falsified documentation, and ensure that the state crime punishment provision couldn’t be used against undocumented Arizonans who are already living in the state. 

But on Wednesday, Republicans made changes that appeared to meet those demands. The legislation was amended to lower the penalty for submitting false information to apply for a job or a public benefit from a class 6 felony to a class 1 misdemeanor, and to add a stipulation that people would only be guilty of crossing the border illegally if they do so after the proposal goes into effect, offering protection to undocumented people who are already here. 

Additionally, GOP senators added a clause requiring a police officer to justify arrests by meeting probable cause standards. 

But during a combative nearly four-hour-long debate on Wednesday, Democratic lawmakers maintained that the changes were insufficient to assuage concerns about racial profiling. Latino and immigrant advocacy groups have likened the legislation package to SB1070, the state’s notorious 2010 “show me your papers law,” warning that its lax criteria for arrests, coupled with a clause that grants police officers immunity from lawsuits, will lead to discrimination. 

Sen. Priya Sundareshan, D-Tucson, criticized Wednesday’s amendments for leaving the door open for racial profiling. The new clause requiring police officers to have probable cause before they can make an arrest describes it as one of three scenarios: the officer’s own first-person witnessing of an illegal border crossing, a technological recording of an illegal border-crossing or any other “constitutionally sufficient indicia of probable cause.” 

Sundareshan, an attorney, voiced concern that the third acceptable option is too broad. Bennett acknowledged that the language could be stricter, but said he was confident the courts would interpret it as evidence that rose to the same threshold as a first-person testimony. 

But Sen. John Kavanagh, R-Fountain Hills, pointed out that the word “constitutional” necessarily outlaws any justification that violates constitutional protections, meaning that arrests made on the basis of race would not be valid. The third criteria was added not as a means to greenlight discrimination, he said, but to give police officers sufficient leeway to accept other kinds of unexpected evidence. 

Kavanagh, who is a retired New York Port Authority officer, noted that some people confess to breaking the law in the midst of asking law enforcement officials for help and said “criminals are stupid.” That comment elicited a negative reaction from the Senate’s third-floor gallery, which was filled with Latino Arizonans and activists from Living United for Change in Arizona, a pro-immigrant advocacy group that has been at the forefront of public criticism of the ballot referral. 

Kavanagh then quipped: “Apologies to the criminals in the gallery.” 

Sen. Anna Hernandez, D-Phoenix, pressed Bennett on the continued geographical ambiguity in the proposal. While Republican lawmakers have repeatedly claimed that only migrants who illegally cross the border between the ports of entry can be punished under its provisions, critics of the resolution have pointed out that it applies statewide — there are no requirements for police officers to be anywhere near the border to make an arrest. Amendments added to the proposal on Wednesday did not satisfy Democrats. 

Hernandez questioned whether video surveillance footage taken at the border could be sent to law enforcement agencies hundreds of miles from the border and allow them to seek suspects in their communities. Bennett rebutted that he doesn’t think that is how “law enforcement works,” but acknowledged that no clear geographical limit was added in order to give police officers the flexibility to detain suspects who may have traveled just a few miles away from the southern border. 

Kavanagh, meanwhile, defended the right of law enforcement officials to use video recordings to make arrests further away from the border, likening it to security footage of robberies that are later disseminated to find suspects. But, he added, law enforcement agencies likely wouldn’t go to the trouble of expending limited resources to do so in the case of an illegal border crossing, given the number of crossings that occur. 

“How could you ever get all those videos out? It’s not practical,” he said. “The police aren’t going to spend resources that they would with a robber of Circle K, putting it on TV and making posters. They’re not going to do that. But if you have probable cause that a crime was committed in Arizona — in this case crossing the border at not a port of entry — of course the police can arrest!”  

While Republican lawmakers touted the new amendment mandating probable cause as a safeguard against any racial profiling, Democratic lawmakers remained unconvinced, pointing out that what happens on the ground doesn’t always reflect what is written in the law. 

Sen. Rosanna Gabaldón, D-Tucson, noted that, before the U.S. Supreme Court struck down most of SB1070 — which was also advertised as being a race-neutral law by proponents at the time — she was pulled over by police officers 18 times in one year. Gabaldón, who is Latina, said that she often requested justification from officers on why she was being detained, but that several times they refused to offer an explanation and instead pushed her to prove she was in the country legally. 

“They gave me no reason, they gave me no citation, but I had to prove myself as an American citizen,” she said.

Some Republicans took issue with the repeated claims that police officers would use the law as an excuse to discriminate. Sen. T.J. Shope, R-Coolidge, whose mother is from Mexico, apologized to police officers listening to the legislative broadcast, and pointed out that many border law enforcement officials are Latino.

“This Latino Senator doesn’t think that you’re sell-outs or racists, who’s only motivations for wearing a badge are to pull over fellow Latinos,” he said. 

In the middle of Shope’s speech, a protest erupted in the gallery, where members of LUCHA stood up and yelled at lawmakers. Some removed their blue shirts emblazoned with the LUCHA logo to reveal white t-shirts with letters underneath, spelling out “STOP THE HATE.” (Senate rules bar banners in the gallery.) Amid chanting “Stop the hate!”, expletives and accusations of racism lobbed at lawmakers, the crowd was ejected from the gallery. 

“You’re a disappointment, Bennett!” one protester shouted. 

“Kavanagh, don’t you ever refer to our community as criminals!” another LUCHA member yelled. “My brown skin does not make me a criminal!”

Ultimately, the proposal was passed along party lines by a vote of 16-14, with every Democrat in the chamber in opposition. The resolution goes next to the House of Representatives and, if it is approved without any amendments, it will be sent directly to the November ballot.