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Judge to decide whether border ballot measure violates AZ Constitution

A Maricopa County judge must decide whether there’s a common thread tying together a wide-ranging border proposal sent to the November ballot by Arizona lawmakers.

That’s because a state constitutional provision requires individual pieces of legislation to stick to a single subject, and immigrant rights groups argued in court that HCR 2060 — which will appear on the ballot as Proposition 314 — violates that rule, because it criminalizes crossing the border outside of a port of entry in state law and adds new penalties for fentanyl dealing or using fake documents to get a job or public benefits.

Jim Barton, who represents some of the groups challenging the ballot referral, said voters have a right to pass those types of laws.

“But what the single-subject rule says is they have a right to do them separately, that you can't make them choose,” Barton said. “You can't say if you want to regulate fentanyl this way, you've got to regulate library cards this way.”

Attorney Andrew Gaona, representing other groups challenging the bill, said HCR 2060 was the result of “log rolling,” or combining several disparate proposals into a single bill in order to increase its chances of success. He pointed out that the different provisions included in the single ballot referral mirror multiple different bills that failed to pass out of the legislature this year.

But attorney Kory Langhofer, who represents the Republican lawmakers who voted to send the measure to voters, disagreed, saying all facets of Proposition 314 are linked, because each facet of the proposal deals with smuggling-related problems at the border.

“The clauses do, in fact, relate to the general topic of smuggling across the border, and that's sufficient,” Langhofer said.

That includes a clause imposing enhanced penalties on a person found guilty of selling fentanyl that resulted in the death of a person if the fentanyl was manufactured outside of the U.S.

“This is a really pernicious problem of people dying because of unlawfully smuggled fentanyl,” Langhofer said. “We know that relates to the border, you don't have to be a DEA agent to sort of appreciate that.”

But Barton and Gaona argued that definition is overly broad. They compared the ballot referral to a state budget passed by Republicans in 2021 that was partially dismantled by the Arizona Supreme Court, which found the budget bills were stuffed with non-budget laws in order to marshal support among lawmakers.

Gaona argued lawmakers included the fentanyl provision in HCR 2060 for much the same reason.

“That violates the single-subject rule by veering substantially away from all of HCR 2060’s other provisions that relate directly to a person's immigration status,” Gaona said.

Both Gaona and Barton argued the court should not just accept the legislature’s explanation at face value and that accepting the legislature’s argument would essentially neuter the single-subject rule.

“I think that it cannot be an academic game of just drawing a circle big enough with your words that you can bring in all kinds of different subjects,” Barton said. “These subjects are very disparate; they impact different people and they would have different opinions with the voters; all of those things are evidence of the fact that this subject is too big.”

Langhofer acknowledged there are topics that could be so broad that they would violate the single-subject rule but rejected the notion that HCR 2060 enters that territory.

“The problem of the southern border is a broad topic, right? There's a lot that flows from that, but it is not limitless,” Langhofer said.

Maricopa County Superior Court Judge Scott Minder said he will issue a ruling on whether the measure can stay on the ballot by the end of the month.

Wayne Schutsky is a broadcast field correspondent covering Arizona politics on KJZZ. He has over a decade of experience as a journalist reporting on local communities in Arizona and the state Capitol.
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