Proposition 314: Likely to Pass—Will It Even Take Effect?  

By Andy Simmerman. 

While most people will be focusing on the presidential race this Election Day, Arizona voters will also be casting votes for and against a number of ballot measures known as initiatives. One measure in particular, Proposition 314, is likely to pass on Tuesday and could potentially have a dramatic effect on immigration law in Arizona. 

The “Secure the Border Act”

            Proposition 314 is a legislatively referred ballot measure that would empower state officials in Arizona to enforce the immigration laws of the United States. The measure would make it a state crime for non-citizens to enter the U.S. anywhere other than a lawful port of entry, would empower state and local police to arrest noncitizens who cross unlawfully, and would even allow Arizona state judges to order deportations. It would also require the use of E-Verify to determine an individual’s immigration status before applying for public benefits, create harsher penalties for submitting false employment information, and would make selling fentanyl a Class 2 felony if the sale results in another’s death. Traditionally, it has been the federal government that handles immigration law: it is a federal crime to enter the U.S. anywhere other than a lawful port of entry, federal agents detain noncitizens who are here unlawfully, and federal administrative judges conduct immigration proceedings. Prop 314 is based on a Texas law (SB 4) with near-identical provisions. That law has been the subject of tense litigation and is expected to eventually end up before the U.S. Supreme Court. 

Earlier this year, a substantially similar bill known as the “Arizona Border Invasion Act” passed the Arizona Legislature before being vetoed by Governor Hobbs, who cited concerns over the bill’s burden on state law enforcement and its constitutionality. Arizona Republicans responded to the veto by voting to put Prop 314 on the ballot as a legislatively referred initiative, placing its passage directly in the hands of Arizona voters. If this law passes, it would be immune from a governor’s veto or repeal by the legislature and could only be repealed with voter approval. 

Opposition and Support

            Proponents of the law, including Republican members of the Arizona Legislature and Senate candidate Kari Lake, argue that the federal government is not doing enough to curb illegal immigration and that the state needs to step in to enhance border security. One of the law’s authors, state Senator John Kavanagh, has expressed a desire to join Texas in protecting the border. Senator Kavanagh argues that concerns over the law are unfounded because law enforcement would have to actually witness a border crossing to make an arrest. 

            On the other hand, those opposed to the proposed law cite concerns over the bill’s efficacy, cost, and its legality. The Arizona Department of Corrections, Rehabilitation and Reentry conducted a preliminary review as this bill was moving through the Arizona House and found that implementation would cost the Department nearly $252 million by 2029 and an additional $66 million per year after. State elected officials, such as the mayor of San Luis and the sheriff of Pima County, are concerned over increased costs without additional funding from the federal government. They also question the effect this proposed law will have on safety, when all state officers and officials are forced to become Border Patrol agents without adequate training. Finally, there are concerns over whether the bill is constitutional, and the state will undoubtedly become embroiled in expensive, drawn-out litigation if this proposition were to pass. 

What Happens When It Passes? 

            Despite the concerns over this legislation and its cost, it is likely to pass. A September poll of 1,000 Arizonans found that 63% of voters would support the measure while only 16% said they would vote no. Interestingly, while much of the political discourse around this law is focused around the illegal immigration provisions, voters seem to care most about the provisions requiring employers to verify a worker’s immigration status and increasing the criminal penalty for selling fentanyl. 

            Assuming the law actually does pass on Election Day, those provisions that voters care most about would go into effect. The more contentious measures requiring state officials to enforce immigration laws would be in a state of limbo. Prop 314 states that even if approved by voters, those provisions cannot take effect until 60 consecutive days after the court system upholds Texas’s SB 4 or another similar law in a different state. SB 4 made headlines earlier this year after the Biden administration challenged its constitutionality and federal courts issued several injunctions against the law. 

Even though the provisions of Arizona’s Prop 314 would be in limbo, it is likely they would be challenged as unconstitutional for the same reasons SB 4 has been challenged in Texas. There is also concern that these provisions echo Arizona’s SB 1070 from 2010, which enabled law enforcement to require anyone suspected of being undocumented to “show their papers.” This bill became infamous as it led to an increase in racial profiling before three of its four provisions were struck down in 2012 by the U.S. Supreme Court. The fourth provision was limited in 2016. These similarities could possibly lead to constitutional challenges that go beyond those raised in Texas. 

Proposition 314 is likely to pass on Tuesday, but whether or not its most controversial provisions will go into effect remains an open question. Voters will have to monitor litigation both in Arizona and other states to find out what parts of Prop 314 are ultimately adopted.