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On Nov. 30, 2004, a federal district court issued a temporary restraining order,
barring implementation of Arizona's Proposition 200 until Dec. 22, 2004, when
another hearing is scheduled. Also known as "PAN" (Protect Arizona Now), the
initiative would require state and local government employees to verify the
identity and immigration status of benefits applicants and to report any "discovered" immigration law violations to federal immigration authorities. The
measure makes failure to file such a report, or for a supervisor to direct that
such a report be filed, a criminal offense. It also mandates that persons
registering to vote provide specific documents to establish that they are U.S.
citizens.
The plaintiffs -- a nonprofit organization, individual
state and local employees, and Arizona residents (U.S. citizens and
immigrants) -- challenged the measure on constitutional and federal statutory
grounds, and declared that they or the communities they serve would suffer
serious harm if it were implemented. Represented by the Mexican American Legal
Defense and Educational Fund (MALDEF) and
Arizona-based attorneys Daniel Ortega and Michael Sillyman, the plaintiffs
allege that Proposition 200 violates the Supremacy and Due Process Clauses of
the U.S. Constitution, as well as the 1965 Voting Rights Act.
The plaintiffs assert that the Constitution grants the federal government
exclusive power over immigration and foreign affairs, and that Congress has
enacted comprehensive laws on immigration enforcement, verification of
eligibility for public benefits, and voter registration. As in the successful
challenge to California's Proposition 187, the plaintiffs argue that states do
not have the constitutional authority to establish their own immigration
enforcement schemes, such as the system created by Proposition 200. The
complaint also alleges that the vaguely worded initiative, which applies to
"state and local public benefits that are not federally mandated," does not
provide government employees sufficient notice regarding which benefit programs
are implicated, what constitutes a "violation of federal immigration law" for
this purpose, or when such a violation has been "discovered."
On Nov. 12, 2004, Arizona
Attorney General Terry Goddard issued an opinion finding that the benefits
provisions in the measure, which amend only Title 46 of the state code, apply
only to the public benefits found within that code and only to those that do not
fall within one of the federal welfare law's exemptions. In the attorney
general's opinion, for example, the initiative does not apply to health care
services or other programs governed under other titles of the Arizona code.
However, another lawsuit filed by the Federation for American Immigration Reform
(FAIR) and the "Yes on Proposition 200" Committee argues that the initiative's
requirements should apply more broadly.
Arizona voters passed the initiative on Nov. 2. Under the Arizona
Constitution, the initiative cannot become law until the governor issues a
proclamation, which had been scheduled for Dec. 1, 2004. In issuing the
temporary restraining order, the court held that the plaintiffs had raised
"serious questions" regarding whether the measure is constitutional and that the
balance of harm fell "sharply" in their favor. The court found that if
Proposition 200 were to become law, it would have a "dramatic chilling effect"
upon immigrants seeking services for which they are eligible. Implementation of
the initiative was enjoined until Dec. 22, 2004, when the court will consider
the plaintiffs' motion for a preliminary injunction -- to prevent implementation
until the case has been resolved.
On Dec. 7, the court revised its original order and allowed the governor to
issue a proclamation declaring that the initiative's voting provisions have
become law. The injunction halting the public benefits provisions remains
intact. The new requirements for Arizona voters cannot go into effect
immediately, however. Because of its past voting practices, Arizona is required
under Section 5 of the Voting Rights Act to seek approval from the U.S. Dept. of
Justice (DOJ) before implementing any changes in voting procedures. The
modified order allows the state to submit its proposed changes in voting
procedures to the DOJ. The voting provisions remain a subject of this
litigation.
Friendly House, et al. v. Janet Napolitano et
al.,
CV 04-649 TUC DCB (filed Nov. 30,
2004).
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