Arizona Senate Republicans advance controversial border ballot measure

A border security ballot measure advanced through the Arizona Senate on Wednesday on party lines with amendments that Republicans say will ensure no one is racially profiled under the proposal. 

The legislation, HCR 2060, would make it a state crime to enter Arizona from Mexico outside of a designated port of entry. That’s already illegal under federal law, but can’t be locally enforced.

The measure is based on a Texas law, SB 4, that is currently blocked from going into effect, as it’s being challenged in court.

Democrats have likened the measure to SB 1070, a controversial immigration law passed in 2010 that was commonly known as the “show me your papers” bill. That law sparked months of protests, and portions of it were later struck down in court.

HCR 2060 is similar to a bill Republicans passed earlier this year, only for it to be vetoed by Democratic Gov. Katie Hobbs. Republicans now aim to bypass the governor’s veto stamp by referring the measure to Arizona voters this November.

But the Senate’s approval is not the last step – the new measure goes next to a vote in the House of Representatives, which isn’t scheduled to convene again until the beginning of June.

And even if approved by the Senate, House and voters, the measure also cannot take effect unless Texas’ SB 4 is cleared in court.

The Senate only approved the measure after adopting several amendments insisted on by Sen. Ken Bennett (R-Prescott). Every Democrat in the Senate opposed the bill, and Republicans only hold a one-seat majority in the Senate – meaning Bennett held the crucial 16th vote needed to move the measure forward.

Bennett objected to part of the bill that would have allowed law enforcement officers to deport recipients under the Deferred Action for Childhood Arrivals program, in the event a future administration or court order canceled the program. 

While voting, Bennett said he was satisfied with an amendment that states the proposal will go into effect prospectively, and will not affect anyone who has been in the country illegally or otherwise if and when the law goes into effect.

Bennett also praised language GOP supporters say will prevent racial profiling under the proposal.

“I’ve done everything I can at this point to make sure that doesn’t happen,” Bennett said before the vote.

But Democrats said their concerns that the measure will be weaponized and used for racial profiling were not satisfied by the amendment. Sen. Rosanna Gabaldón (D-Tucson) spoke about her experience under SB 1070, warning the same could happen under this new proposal.

“Each time that I was stopped, I asked why. Majority of the time, they said, ‘no, prove your citizenship,’ or something like that,” she said. “They didn’t tell me how I broke the law. To me, I believe they didn’t have probable cause, stopping me because of what I looked like.”

Tensions ran high, as debate on the measure lasted more than four hours. 

The amended measure states that law enforcement can only arrest someone if they witness them crossing the border illegally, if there is a technological recording of the crossing or if there is “any other constitutionally sufficient [signs] of probable cause.”

It’s the third, more vague explanation of probable cause that Democrats said could be abused. Sen. John Kavanagh (R-Fountain Hills) argued in favor of that third definition, insisting there are other ways to get probable cause that someone has crossed the border illegally, such as a confession.

“Criminals are stupid,” Kavanagh said, eliciting gasps from onlookers in the Senate gallery opposed to the proposal.

“I’m sorry if I offended any criminals in the gallery,” he added.

That comment led to a heated exchange between Kavanagh and Sen. Catherine Miranda (D-Phoenix), who accused him of racial profiling, which he denied and requested an apology for.

Miranda later warned that, like in Texas, this measure will be challenged if it passes and will ensnare the state in an expensive legal process. She cited warnings from the Senate’s own lawyers that the measure may be unconstitutional and could also violate Arizona statute that requires ballot referrals to cover a single subject.

Miranda argued a different part of the ballot referral that includes enhanced sentencing guidelines for a person found guilty of knowingly selling fentanyl that causes the death of another person violates that restriction.

Sen. Christine Marsh (D-Phoenix) also objected to the fact that the measure refers to fentanyl. Marsh argued that it won’t stop that drug from hurting Arizonans, citing Border Patrol figures that show most fentanyl trafficked into the country is being moved by legal residents through official ports of entry.

“This bill will not solve the fight against this crisis,” Marsh said. “It makes it appear falsely that there’s already a solution to the crisis.”

The bill was also amended to say that someone who chooses to “self-deport” could go back across the border into Mexico, or to their “country of origin” if it is not Mexico.

Senate Minority Leader Mitzi Epstein (D-Tempe) questioned how that will be enforced. She and other Democrats also questioned how much the measure will cost the state since it doesn’t include any appropriation of funds.

Republicans did not have specific answers to that criticism. Sen. David Gowan (R-Sierra Vista), the bill’s sponsor, only said that those charged under the law would be financially responsible for self-deporting.

Roughly halfway through the proceedings, Sen. T.J. Shope (R-Coolidge) was interrupted by protesters with LUCHA, an advocacy group opposed to the measure, who yelled “Stop the hate,” and cursed at Republicans before being escorted out by security.

Sen. Anna Hernandez (D-Phoenix) said that not only is she concerned about racial profiling, but how individuals who believe they are victims of that treatment will hold law enforcement accountable.

She drew attention to a section of the bill that grants law enforcement officers civil immunity if they are sued for enforcing the law. 

“What legal recourse will they have?” Hernandez asked the room.

Senate President Warren Petersen (R-Gilbert) rejected that criticism, saying the immunity clause applies to issues at the state level, not alleged violations of federal Civil Rights laws. 

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