Fact checking the Prop. 314 "Secure the Border Act" debate

Transcript: Fact Check Ep 202

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This week on Fact Check Arizona, we break down the recent Arizona Clean Elections Commission debate on Proposition 314, also known as the Secure the Border Act. We look at the major arguments from each side to test their validity and add context.

Read the proposition and find out more information on its Ballotpedia page.

Transcript:

Steve Jess: Welcome to the Fact Check Arizona podcast from AZPM. In each episode this series, we'll look at a particular claim about elections in Arizona. We'll set the record straight and also give a sense of the context surrounding it. I'm Steve Jess.

This week, we dive into a debate that AZPM aired last week on our TV station *PBS 6, which features two speakers making the case for and against Proposition 314, also known as the Secure the Border Act.

Briefly, this proposition makes it a state crime to enter Arizona from Mexico without documents, empowers state and local police to arrest migrants, empowers state judges to deport them, makes people go through the e-Verify system in order to qualify for state aid, makes it a state felony to lie about your citizenship on an application for a job or assistance, and makes it a state felony to sell fentanyl that leads to a fatal overdose. And that, believe it or not, is the brief description.

The debate featured Republican state senator John Kavanagh and Democratic state representative Analise Ortiz and joining us to go through some of their claims is our show's producer, Zac Ziegler. Hello, Zac.

Zac Ziegler: Hello, Steve.

SJ: Zac, this debate was a heated one with plenty of accusations thrown around on each side. You pick out some of the arguments that both sides went to multiple times. Let's start with this one that Representative Ortiz made in her opening remarks.

Analise Ortiz: What this is asking is for local police to do something that is entirely outside of their Constitutional authority, and enforce federal immigration law.

That argument in Arizona goes back to 2010 when a bill known as SB 1070 made its way to the US Supreme Court. The argument's also been pressed again, more recently, with a Texas law similar to SB 1070.

ZZ: Yeah, exactly. And AZPM's show, The Buzz, did an episode on what states can do at the border back in March during that debate over the Texas bill. This is an excerpt from that show with Lynn Marcus, an immigration law professor at the University of Arizona, College of Law.

Lynn Marcus: Article I of the Constitution grants the Congress the power to establish 'a uniform rule of naturalization,' and that's presumably because it would be chaos if individual states could set their own rules as to whose eligible for US citizenship. But since the late 1800s, the courts have also found that the federal government has to be able to set and enforce immigration laws and policies generally because that's inherent in national sovereignty. National sovereignty means not only having control over the the territory, but also being able to conduct foreign relations and immigration impacts all aspect of foreign relations: trade investment, tourism, diplomatic relations, how US citizens are treated abroad. And so when you have a patchwork of policies on how immigration is regulated, that creates problems with foreign relations.

ZZ: So that doesn't necessarily mean that all powers are separated between state and federal levels of government, as we heard in that same episode from Victor Manjarrez Jr, a former Border Patrol sector chief who now directs the Center for Law and human behavior at the University of Texas El Paso. There are also some instances where federal law enforcement can arrest people who are committing state felonies if the border patrol officer happens to witness it.

Victor Manjarrez Jr: Great example, let's say they're at the 7-Eleven getting a cup of coffee, and there's an armed guy that comes in robbing the place, and he's watching it go down. He would technically have the arrest authority, to arrest him on a felony. Now, of course, the arrest would come up and the the local law enforcement would be called and they would hand that person over."

ZZ: So the federal agent can enforce State law. But the opposite isn't necessarily true. The Supreme Court has ruled that state officials can't intrude into immigration, which is the responsibility of the federal government.

SJ: Another area of concern that was regularly mentioned in this debate was the cost of this bill. In this clip, we'll hear from debate co moderator Rafael Carranza, first, then we'll hear from Senator Kavanagh. Then we'll also get a quick rebuttal,

RC: And Analysis by the non-partisan Grand Canyon Institute estimates that the cost of implementing some of the immigration Provisions from proposition 314 at at least 325 million per year where will the money to cover many of these productive expense to enforce proposition 314 come from?

JK: That is a bogus and absurd analysis by the Grand Canyon Institute. It is based on the assumption that every time a police officer apprehends one of these people entering illegally rather than take the option if they don't have warrants and they weren't previously apprehended, they will take the option they will not take the option of going back across the border but instead will say, 'No, I want to go to an Arizona prison. This law says that when they're apprehended, that they don't have warrants, if they didn't do it before, right, they have the option of being escorted out of the country. If they don't and they found guilty then they go to prison.

Dave Wells: In the context of Kavanagh's comment, we actually didn't estimate the cost of incarcerating anybody who was caught crossing the border. We estimated the cost of enforcement and the cost of of the e-Verify provision in the bill.

SJ: So, Zac, who did that last statement belong to?

ZZ: That was Dave Wells, research director at the Grand Canyon Institute, and the author of that paper, who I called up a few days after the debate.

His estimate broke down the parts of what is in Prop 314. The first one, making it a state crime to be in the state without federal authorization, which he referenced, would cost an estimated $185 million a year. He said that number is based on Texas's allocation of about $825 million for two years, then comparing the percentage of illegal border crossing encounters that happen in each state. It's of note that the number does not include cost for people who opt for jail over returning to their home country.

Now, another part of it, the second the cost of stiffening penalties for the possession and sale of fentanyl. The Grand Canyon Institute said that was determined to be unknown.

Now the last part, which requires applicants for state assistance get checked in the e-Verify system before receiving help, and it also makes it a crime to apply for state assistance when you are here illegally, had a price tag of $140 million the last part of that provision is the most expensive. Initially, when this was written, it was a low level felony. It was downgraded to a high level misdemeanor. The Grand Canyon Institute estimates there would be about 9000 cases per year.

DW: In Arizona, if you're not here on a documented basis, you're required to serve half of your term and then your sent back to Mexico. For a class six felony that's a minimum of one year; for a class one misdemeanor, it's six months. We estimate that about six months would cost us over $140 million dollars.

ZZ: And that's part of the increased cost, along with the cost of having a county staffer run people through e-Verify.

SJ: Kavanagh seems to be delivering a bit of a red herring fallacy by calling the study bogus on terms that it didn't address and a bit of moving the goalposts, too.

SJ: Let's move on to an argument by Representative Ortiz about those same prison costs. Here's that audio.

AO: The director of our department of corrections himself has said that this will cost the Department of Corrections $250 million each year on top of their billion dollar budget currently.

SJ: If her claim is true, that would be a lot of money. But it turns out, her claim is is not true.

ZZ: Correct. That estimate actually $252 million was for costs over five years. So maybe a misspeak, maybe not. We can't fact check someone's intent. But the statement, as said, is false. The costs are itemized annually with increases for operations, food, health care and recruitment and retention efforts for staff. And corrections would be forced to incur that cost. Some of the language from this proposition says:

13-4295.06.
NOTWITHSTANDING ANY OTHER LAW, IF A COUNTY OR LOCAL LAW ENFORCEMENT AGENCY DOES NOT HAVE THE CAPACITY TO HOLD A PERSON WHO IS ARRESTED FOR OR CONVICTED OF AN OFFENSE INCLUDED IN THIS ARTICLE, THE DIRECTOR OF THE STATE DEPARTMENT OF CORRECTIONS SHALL ACCEPT ARRESTED OR CONVICTED PERSONS WHO ARE CHARGED WITH OR CONVICTED OF AN OFFENSE INCLUDED IN THIS ARTICLE AT ANY FACILITY IN THIS STATE THAT HAS AVAILABLE CAPACITY.

ZZ: So the director that's mentioned there, that would be Ryan Thornell, who issued this estimate. He is a Hobbs appointee.

SJ: And it's important to think critically when talking about political appointees.

ZZ: Yes and again, it is hard to fact check intent, but this much can be said about Thornell. He got unanimous approval from a Republican controlled confirmation committee that held up many other Hobbs appointees, and according to the Arizona Republic, various members of that committee thanked him for his candor in that hearing.

SJ: Costs are obviously a concern with this, or for that matter, any other government bill. The lack of funding for Proposition 314 has divided law enforcement and county attorneys.

JK: Nothing in this bill requires any law enforcement agency to do anything we rely on their basic commitment to enforcing the law.

ZZ: So it is true that there are no statements that law enforcement shall or must enforce these laws in this bill, so it does have room for discretion, like is often the case.

SJ: Like much of the legal system.

ZZ: Exactly this idea reminds me of something else that Victor Manjarrez Jr said in his interview about what having the mechanism for enforcement did as a chilling effect for cross border crime.

VM: There was a time in the 2000s that the District Attorney for the State of Arizona would not prosecute a marijuana case if it was under 500 pounds. So if you have 499 pounds, they wouldn't prosecute at the federal level. And so what we ended up doing it was going to the state and county level and it was great because they never said no. The problem though is we taxed our resources. The states would come up and say, 'Man could you beef up some of your prosecution units? Could you be, for those type of things, even temporary can you bring them from other counties that maybe are at a slower pace? Because you have enough of a consequence to actually start to turn off that flow that's coming across right now.

SJ: So according to Manjarrez, yes, local law enforcement contributed when it could. Yes, it helped and yes, it overtaxed local capabilities.

SJ: Let's go to another statement from Representative Ortiz about who would be imprisoned if local law enforcement began arresting people for crossing the border without authorization.

AO: I was just down on the Arizona border touring with Representative Sandoval and saw women and children detained by Border Patrol, and they were in facilities with the blankets and trying to keep themselves cool and trying to keep themselves entertained because there are still small babies, toddlers that are crossing the border. And under this law they would be directed to an Arizona State Prison.

SJ: We know women and children routinely end up in Border Patrol custody, and although conditions vary, what Representative Ortiz described is not outside of evidence we've seen. But the question is, would children end up in prisons?

ZZ: So there is no mention of how children should be treated in this bill. So I sought to learn more about how such matters are handled for any arrest in the state. I reached out first to the Department of Public Safety to ask what happens when anyone is arrested with a child in their custody. A spokesperson told me that such decisions are made at the county level.

So I reached out to the Pima County Attorney's Office and spoke with one of their investigators. Heconfirmed that there is no law on the books in Arizona to make this uniform, but standard practice is to find someone like another parent, a family member or a guardian to take the child. If none is available, then the Department of Child Protective Services is contacted.

Now we contacted DCPS with questions about how they handle this, but they did not get back to us in time.

SJ: So let's get back to a statement that is at the crux of this debate over proposition 314. Why pass a law that many say is doomed to be ruled unconstitutional? Are we just setting ourselves up to hand money to the attorneys who will build a case with no change? Here's how Senator Kavanagh responded to that.

JK: The law clearly says that it's only effective if this law the law in Texas are a similar law is ruled constitutional and is it and is enacted.

SJ: So Zac, what exactly does proposition 314 say about this?

ZZ: Well, to give it to you in some of its legalese here, Steve, I'll paraphrase a little quote.

13-4295.04. Enforcement of article
NOTWITHSTANDING ANY OTHER LAW, THIS ARTICLE MAY NOT BE ENFORCED IN ANY MANNER UNTIL ANY PART OF [SECTION 2 OF S.B. 4, 88TH LEG., 4TH CALLED SESS. (2023) THAT WAS ENACTED IN THE STATE OF TEXAS, OR ANY OTHER LAW OF ANY OTHER STATE SIMILAR THERETO], HAS BEEN IN EFFECT FOR A PERIOD OF SIXTY CONSECUTIVE DAYS AT ANY TIME ON OR AFTER THE EFFECTIVE DATE OF THIS ARTICLE.

Note, the portion of the above that is bracketed is summarized as "a big section that basically says the law that we talked about earlier in Texas, or one that's similar" in the audio.

SJ: So Proposition 314 sets up something that is I've never heard of, at least before, which is a state law in Arizona that depends on a law in another state to go into effect, which is kind of an unusual situation, maybe not unprecedented though. In any case, that's our look at proposition 314 on fact check Arizona. If you have any comments about this or any other of our podcasts, do get in touch with us. Our website, of course, is news.azpm.org. My co host and producer for this podcast is Zac Ziegler. Say goodbye to the folks at home, Zac.

ZZ: Bye, folks!

SJ: And join us again for our next fact check. Arizona. Don't forget to subscribe wherever you get your podcasts. And look over the entire list of AZPM podcasts, because some of them are pretty good. I'm not going to tell you which ones. We'll talk to you again next time.

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