02-04-2025
Immigrant rights group seeks to nullify ‘Secure Border Act' over missing funding
LUCHA Executive Director Alejandra Gomez speaks on April 2, 2025, about the lawsuit her organization filed challenging the constitutionality of the Secure Border Act, which voters overwhelmingly passed in 2024. Photo by Gloria Rebecca Gomez | Arizona Mirror
An immigrant rights group is asking the courts to overturn the Secure Border Act, the ballot measure voters overwhelmingly approved last year that made it a state crime for migrants to illegally cross the Arizona-Mexico border, because it violates a provision in the state constitution that voters approved more than 20 years ago.
Living United for Change in Arizona, a progressive organization that was first formed in the aftermath of SB1070, the state's notorious 'show me your papers law,' filed a lawsuit in Maricopa County Superior Court Wednesday afternoon arguing that the sweeping anti-immigrant law should be struck down because it violates funding source protections in the Arizona Constitution. In a statement, the group's spokesman, Cesar Fierros, characterized the legal challenge as an attempt to push back on increasing anti-immigrant hostility from Arizona's GOP-controlled legislature.
'This lawsuit challenges a key component of the far-right playbook being advanced in Arizona — an effort that seeks to criminalize immigrant families, stoke racial fear, and undermine civil rights across the state,' Fierros wrote. 'LUCHA's legal action aims to protect Arizona communities from policies that threaten our freedoms, our safety, and our democracy.'
Voters last year sided with the GOP lawmakers who crafted the Secure Border Act and sent it to the ballot, with 63% of votes in favor of Proposition 314. The law makes it a misdemeanor to cross the state's southern border without authorization anywhere but at an official port of entry, which could carry with it up to 6 months in jail. Local police officers would be empowered to arrest migrants suspected of violating that law, and state judges would be able to issue deportation orders.
While that provision is frozen until the U.S. Supreme Court rules a near-identical law in Texas can be enforced, other parts of it are active, including making it a class 6 felony to use false documentation to apply for benefits or jobs and creating an entirely new class of felony for people convicted of selling fentanyl that later results in someone else's death.
The problem with the initiative, according to LUCHA attorney Jim Barton, is that the Arizona Constitution requires ballot measures that require any government spending to identify a funding source. And that money can't come from Arizona's general fund.
That constitutional provision dates back to 2004, when Republican lawmakers sought to prevent advocacy groups from going to the ballot to force the state government to pay for programs that the GOP majority didn't want. But the constitutional restriction applies also to measures sent to the ballot by the legislature.
When lawmakers last year were considering the Secure Border Act, multiple law enforcement officials travelled to the Capitol to warn that they would need more resources to enforce its directives.
But lawmakers still failed to set aside a funding stream, something the Arizona Mirror exclusively reported on.
That, Barton said, nullifies the initiative.
'Because Proposition 314 will cost millions of dollars and it has no funding source, it's unconstitutional and enforceable,' he said.
In Texas, more than $11 billion of taxpayer money has been set aside to fund the Lone Star State's restrictive border policies.
Although the provision in Prop. 314 making it a state crime to cross the border without permission is likely the one with the biggest price tag, the other parts that are being enforced will also cost money. Barton noted that the restriction on public benefits, which requires agencies to double check a person's eligibility through the Systematic Alien Verification for Entitlements federal database, could impact kids applying for library cards.
'This is a fiscally irresponsible act,' Barton said.
This isn't the first time LUCHA and Barton have sought to void Prop. 314. Before the initiative was placed on the ballot last year, the group attempted to convince the courts that, because it spans so many different parts of Arizona law, it violated the state constitution's single-subject rule. But that challenge failed, with the Arizona Supreme Court agreeing with Republican lawmakers, who argued that all of the act's provisions fall under the overarching theme of border security.
But this lawsuit is different, Barton said, because the Arizona Constitution is very clear about funding sources and it isn't open for interpretation.
'I don't see any wiggle room here,' he said. 'The law says you have to provide funding for mandatory expenditures. This mandates expenditures and it doesn't provide a source.'
And that earlier loss in court will also aid LUCHA: Barton noted that the courts have already concluded that all the provisions in Prop. 314 deal with just one subject, meaning that Republicans won't be able to argue that just one part should be struck down. So, if any part of it is judged to be in violation of the Arizona Constitution, the whole act will have to be nullified.
Along with arguing that Prop. 314 is unconstitutional because it fails to provide money to pay for it, LUCHA is also claiming that it violates two other legal principles, which govern how lawmakers make policy and to what degree government branches can encroach on each other's responsibilities.
One of them, which is included in the Arizona Constitution, is the separation of powers. Barton said that a provision in Prop. 314 defining probable cause for officers who arrest migrants infringes on the judicial branch's authority.
The other principle is known as the delegation of legislative authority, and it requires lawmakers to pass policy and laws for their own constituents. Barton says lawmakers violated that principle when it made Prop. 314 dependent on the legal future of Texas' law.
'The Arizona legislature gave our lawmaking over to the Texas legislature, and said, 'Well, once Texas gets their law through, then and only then will our law take effect,'' he said. 'You can't do that. The Arizona legislature has the responsibility to make laws for the state of Arizona.'
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