Is immigration the Arizona GOP's last hurrah?
HCR 2060 is best thought of as a political Hail Mary pass. Substantively, it doesn't amount to much.
Let’s roll back the political tape in Arizona to 2014.
That year, Republicans won every race for statewide office, virtually all of them by very comfortable margins. The only close race was for superintendent of public instruction.
Republicans held both U.S. Senate seats. In 2012, Jeff Flake successfully retained the position yielded by the retiring Jon Kyl. John McCain would go on to be reelected in 2016, exceeding Donald Trump’s Arizona vote by more than 100,000.
In the Legislature, Republicans won a comfortable margin of control in both chambers, 18-12 in the Senate and 36-24 in the House.
Today, Democratic candidates occupy both U.S. Senate seats. In 2022, they won the top three statewide offices: governor, secretary of state, and attorney general. In 2014, Democrats held none of the 13 offices elected statewide. Today, they hold six of them, and all of the most important ones.
The Republican margin in the Legislature has shrunk to just a single seat in both chambers.
So, what changed? What explains the steep slide in GOP fortunes over the last decade?
Some theorize that demography has turned the state purple. But the state’s electoral demography hasn’t changed that drastically over the last decade. For example, as a percentage of turnout, the Latino vote hasn’t measurably increased.
As reflected in party registration, the ideological makeup of the electorate hasn’t changed materially over the decade. In fact, in 2014, independents slightly outnumber Republicans in Arizona. Today, Republicans slightly outnumber independents. The Republican advantage over Democrats in registration hasn’t materially changed over the decade, yet Republicans did much better in 2014 than they have done in three consecutive election cycles beginning in 2018.
The obvious change during the decade has been the Trumpification of the Arizona GOP. The current GOP is really nothing more than a Trump cult, and a dysfunctional one at that. The party has no money and little organization. Even Trump’s presidential campaign doesn’t have much in the way of a ground game in Arizona.
When the Arizona Republican Party was dominant, its big names were John McCain, Jon Kyl, and Doug Ducey. If the Arizona GOP hadn’t become Trumpified and continued to nominate candidates of that caliber, there’s little reason to believe that it wouldn’t have remained dominant.
In 2024, Democrats have a solid shot at also taking over the Legislature in both chambers for the first time since 1966. That was also the last year Democrats controlled both chambers of the Legislature and the governorship.
Trump will again be at the top of the ticket, ensuring another election cycle of GOP underperformance compared to what would be expected given party registration. There are five legislative districts with mixed representation, having both Republican and Democratic legislators. Republicans are defending Senate seats in three of them. One of the Republican House seats is in a heavily Democratic district and will be tough to hold.
Democrats believe that having the abortion initiative making its way to the ballot will put some wind in their sails in candidate races. I think it might have a marginal effect on turnout, but that would help offset the anchor Joe Biden represents at the top of their ticket.
All of this explains why the immigration referendum, House Concurrent Resolution 2060, that GOP legislators muscled on to the ballot is best thought of as a political Hail Mary pass. Simply put, the Arizona GOP has nothing else going for it this election cycle.
Disorder at the border has expanded from an issue that largely motivates the immigration restrictionist right to a more general and centrist concern. This is a political ploy to give GOP candidates something to talk about that might boost their woeful underperformance in recent election cycles.
Substantively, there’s not much to the referendum, and certainly nothing to merit the sound and fury its passage has engendered and that will continue if it survives legal challenges and makes it to the 2024 ballot.
The referendum makes it a state crime to illegally cross the border between ports of entry. However, to charge the crime, a law enforcement officer has to have personally witnessed the illegal crossing, seen it on tape, or have some other indicia of probable cause. And the bill is prospective only. It only applies to illegal crossings occurring after it goes into effect.
Border county and city cops aren’t going to be sitting around sipping coffee and idly watching the border for any crossers. Nor are they going to be expending resources searching the country for any border crossers who can be clearly identified on tape, even if local cops can gain access to such tapes. And there can be no probable cause indicia of having crossed between ports of entry after the effective date of the legislation in an ordinary traffic stop, unless the person stopped blurts out that he’s an illegal immigrant who crossed the border between ports of entry, and on a date post the measure going into effect.
Senate Bill 1070 made illegal presence a state crime irrespective of the method of arrival or when it occurred. HCR 2060 is far more narrow. It merely makes some illegal crossings a crime, and basically only if it is directly witnessed. The possibility of it being misused to broadly engage in racial profiling is miniscule, unlike SB 1070.
Moreover, unless there were some massive investment in something amounting to an extensive and constantly manned state border patrol, this provision of the law would be invoked very sparingly. And state and border county governments don’t have that kind of dough.
The U.S. Supreme Court held that states had no right to establish their own immigration-related crimes and struck down those provisions of SB 1070. Texas is challenging that precedent with its own state immigration crime law. But even if the current court proves willing to permit some room for states to enact their own immigration-related laws, they won’t countenance state laws that conflict with federal ones.
Current federal law permits immigrants to cross anywhere and seek asylum, and that’s the principal source of the current border disorder. The federal courts aren’t going to permit states to interfere with or short-circuit this federal process, further limiting the potential effect of HCR 2060’s illegal entry provisions.
The other purportedly substantive, but actually empty, provision of the measure requires that legal status be verified via the federal Systematic Alien Verification for Entitlements system before receiving any state or local public welfare benefits, loosely defined. Virtually all state-administered federal welfare benefit programs, such as Medicaid and food stamps, already are required to use the SAVE system for eligibility verification.
If you want to have some fun this election season, ask a GOP candidate railing about the need and virtue of HCR 2060 to identify which state and local programs not already using SAVE would be required to use it under the referendum. The vague public welfare definition referenced in HCR 2060 comes from a measure initially championed by former state Sen. Russell Pearce. At the time, I asked Pearce what specific programs the definition included. In response, I heard a lot about the U.S. Constitution, but nary a thing about what specific programs might be in or out of the vacuous definition.
The cynicism of the political ploy is illustrated by its fentanyl provision. The penalty for selling fentanyl that results in a death is increased. But there is an exception if the fentanyl is domestically produced. Who knew that the MAGA instinct for protectionism included American fentanyl manufacturers?
Why the absurd provision? Without it, if the enhanced penalty applied to all fentanyl that results in a death, the measure would be more vulnerable to a single-subject legal challenge to keep it off the ballot. Such a challenge has already been filed. The border is the single subject claimed to be tying together HCR 2060’s myriad provisions. So, deadly domestic fentanyl is exempt from the enhanced penalty, since it doesn’t cross the border.
Substantively, it doesn’t much matter if HCR 2060 passes or fails. The disorder at the border won’t change. And the measure doesn’t really have the potential to be misused for racial profiling that critics are screeching about.
In reality, improving border disorder requires federal legislative changes, particularly limiting the abuse of the asylum system that is currently the principal contributor to the disorder. The bill that Kyrsten Sinema crafted had a lot of potential to substantially reduce the ability to gain access to the country with an asylum claim that would ultimately be rejected. Biden is attempting, through an executive order, to do part of what was in Sinema’s bill, but his legal ability to do so is highly questionable.
Sinema’s bill was thwarted by congressional Republicans at the insistence of Trump. Politically, that’s something to remember as Arizona Republicans try to keep their ship from entirely sinking by exploiting the immigration issue with a state measure that would do infinitely less to reduce border disorder.
Reach Robb at robtrobb@gmail.com.