A GOP-backed ballot measure that will make it a state crime to enter the country illegally passed out of the Senate with a 16-13 vote on Wednesday. The final vote on the measure was clouded with uncertainty before it was amended because a Republican senator had previously vowed to kill it if certain changes were not made.
Hours of deliberation preceded the measure’s passage. The contentious amendment process was marked by points-of-order, gasps from opponents in the gallery and emotional testimonies from Democrat lawmakers who opposed it.
The ballot measure – HCR2060 – has faced resistance from Democrats, business leaders and attorneys since its introduction. Opponents say it would permit law enforcement officers to racially profile and harm the state’s economy and reputation. The ballot referral was watered down to address some Democrat complaints after it was introduced, but their opposition has stood firm on the basis that immigration is an issue to be left to the federal government.
The legislation is similar to Texas’ SB4, which is currently being litigated in federal court. The measure is written to go into effect 60 days after the Texas law is greenlit, and Republican lawmakers have made it clear they are ready to put any funding necessary behind its implementation.
“We are being invaded,” Sen. Jake Hoffman, R-Queen Creek, said.
The Republican majority in the Senate is slim enough that one opposing GOP vote could kill the measure. Last week, Sen. Ken Bennett, R-Prescott, said certain changes needed to be made or he would not vote to pass it.
“Some of these things are important enough that my vote is contingent on it,” Bennett said at the time. “I’m concerned overall about the reputation of our state.”
The amendment was brought to the Senate floor just minutes before the session kicked off. All eyes were on Bennett as he read through the proposed changes to the legislation.
Ultimately, the amendment was enough to gain his support.
The new language clarified that DACA recipients cannot be affected, probable cause must be established by witness testimony of law enforcement or a video recording or “any other constitutionally sufficient indicia” – and arrests for illegal entry can only be enforced prospectively.
Bennett said the changes alleviated his concerns that ambiguous language could lead to racial profiling or allow individuals to be retroactively prosecuted for having entered the U.S. illegally before the measure became law.
Bennett said he has done everything he can to make sure racial profiling doesn’t occur.
Democrats took issue with the word “other,” claiming ambiguity would still allow for racial profiling and cloud the definition of probable cause.
“It is my personal interpretation of this language, that the level of probable cause necessary to arrest someone in violation of this would be witnessing the crime personally by the law enforcement official, or video recording,” Bennett said.
Sen. Priya Sundareshan, D-Tucson, said the first two lines in the amendment defining probable cause are “very specific” but the last line will likely be interpreted as a “much broader granting of that probable cause.” Bennett disagreed and said the language gave “clear guidance” of what constitutionally permissible evidence of illegal entry would look like for enforcement officers.
Sen. John Kavanagh, R-Fountain Hills, said the probable cause language was initially a “catch-all” but the amendment clarified evidence of illegal entry must be “constitutionally sufficient.”
Democratic lawmakers reiterated that the legislation’s vagueness could allow law enforcement to enter homes, churches or schools to arrest individuals being accused of illegal entry. “I don’t think that’s how law enforcement works,” Bennett responded.
“That is probably a belief that has derived from your personal experience,” Sen. Anna Hernandez, D-Phoenix, said. “However, there are many other people of different communities who have had different experiences.”
Hernandez said the bill is not just limited to border regulation due to the lack of geographical limitations.
“Only the bad actors are going outside of ports of entry … we’re trying to stop the dangerous people,” Kavanagh said. “You don’t invalidate a law because a small number of police may abuse it.”
As the debate wore on, a group of people in the gallery erupted into protest, adorned in white shirts that spelled “Stop the hate,” which they chanted while shouting at Republican lawmakers in the chamber. One called Kavanagh a “racist,” and they were eventually escorted out of the building by security.
“Honestly, I find this bill a little unserious, the question of ‘Why isn’t this bipartisan?’” Burch asked. “Because nobody was invited to the table.”
Deliberation on the border security measure went well into the evening. Lawmakers touched on the topic of funding, to which Kavanagh said he was willing to chalk up whatever appropriations are needed to allow enforcement if the legislation becomes law.
“We’re in the early stages of this bill, it’s got to go to the House and I hope our minds and the members over there are open to further improvements,” Bennett said. “Because, I don’t think we should ever say that we’ve got something perfect and I know this is not perfect. But I think this is a vast improvement over where it was a week ago.”
The measure was transmitted to the House but won’t get a hearing until June 4 at the earliest.
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