Arizona voters will decide if illegal border crossing is a state crime. Here's what to know (2024)

The fate of a much-debated ballot measure passed by Arizona's Republican lawmakers will soon be up to voters, barring a successful challenge.

Democrats and civil rights groups have vilified House Concurrent Resolution 2060 as "racist," claiming it will encourage law officers to stop and detain people solely for their perceived race or ethnicity. The state's corrections chief and several leaders of border-adjacent law enforcement agencies have warned it could cost a fortune in state money to enforce, their concerns bolstered by an economic report.

Republican leaders, meanwhile, say they'll fund the program eventually and claim it will save the state money.

But three things must occur before the main provision of the bill, which makes crossing the international border illegally a state crime, can go into effect. Voters must approve it, all challenges must be rebuffed and the courts — most likely culminating with the U.S. Supreme Court — must first uphold a similar law.

Here's a look at what the measure would do and what's likely to happen next.

What would HCR 2060 do?

The main and most criticized effect would be to make crossing the international border somewhere other than an official port of entry subject to a Class 1 misdemeanor violation under state law. If the person has previously been convicted of illegal entry, that charge would rise to a Class 6 felony. Refusal to comply with an existing order to leave the country would be a Class 4 felony.

All those charges would require a jail term of unspecified length. Before conviction, migrants could choose to be deported to their home country or the country from which they entered the United States.

Officers could stop someone they witness cross the border, or use video of the alleged offense or some other constitutionally valid probable cause to initiate a stop. That provision worries critics most, leading to warnings some jurisdictions may use the law to stop people of color far from the border.

The law would also enhance penalties for fentanyl sales by adults that result in death, which can be hard to prove. It also makes a state crime of existing federal prohibitions against ineligible noncitizens using fraudulent documents to obtain benefits. Violators would be subject to a Class 6 felony prosecution.

The law would require government entities in the state to use the federal government's Systematic Alien Verification for Entitlements, or SAVE, program to verify eligibility for a noncitizen obtaining any "public benefit." Eight tribal and state agencies use the service already, online federal data shows, including to obtain driver's licenses. But state law says a public benefit does not include: "commercial or professional licenses, postsecondary education, benefits provided by the public retirement systems and plans of this state or services widely available to the general population as a whole."

How is Arizona's proposed law linked to Texas' SB4?

The part of the law that covers arresting border-crossing migrants, according to the text, cannot be "enforced in any manner" until a similar section of Texas' Senate Bill 4 law "or any other law of any other state similar thereto" has been in effect for 60 days after a successful vote on the Arizona law.

The Texas law, signed by Gov. Greg Abbott in 2023 and briefly enacted in 2024, has been held up in court since the Biden administration sued to stop it. It's unknown when the U.S. 5th Circuit Court of Appeals will make its final ruling on the case, following arguments they heard from both sides in April.

But a March 26 preliminary ruling upholding an injunction laid down by the initial trial court indicated the Texas law has significant legal hurdles. The main guidance for the judges, the 5th Circuit's 121-page opinion stated, is the 2012 U.S. Supreme Court ruling that dismantled Arizona's SB 1070 law. Texas did not show it's likely to overcome the Biden administration's claim that its law is preempted by federal law, the opinion stated. After making their case to keep the law on ice for now, the majority of the court's panel added "there is much more in the dissenting opinion with which we disagree" but didn't add due to time.

If the appellate court rules against the law, Texas is likely to appeal the final ruling to the U.S. Supreme Court.

Why is it going to be on the ballot?

The concurrent resolution passed the Arizona House of Representatives Tuesday by a 31-29 vote. Republicans in the Senate had already passed it last month.

Like other legislative ballot referrals, it will head straight to November's ballot without the need for Democratic Gov. Katie Hobbs' signature.

What did Gov. Hobbs say about the measure going to the ballot?

The measure's border enforcement provisions were previously used in a different proposed law this year called the Arizona Border Invasion Act, which Hobbs vetoed in March.

Following the House's passage of the proposed law, Hobbs released a lengthy statement condemning it. Her message stops short of directly appealing to voters to reject it, since she can't officially support or oppose a ballot measure in her capacity as governor.

"HCR 2060 will hurt Arizona businesses, send jobs out of state, make it more difficult for law enforcement to do their jobs, and bust the state’s budget," she wrote in a prepared statement. "It will not secure our border. Despite strong opposition from business leaders, border law enforcement, and bipartisan local leaders throughout the state, extremists in the legislature have chosen to prioritize their political agendas over finding real solutions."

Her statement also addressed the executive order by Biden this week that allows the Border Patrol to shut down asylum processing when the number of migrant crossings between the ports of entry exceeds 2,500 per day over a seven-day period.

The order is "a critical tool for curbing unlawful entry and upholding humanitarian protections," she said. "However, we need comprehensive solutions and congressional support to secure our border."

Who is challenging the measure?

Living United for a Change Arizona announced Wednesday they would file a lawsuit challenging the measure based on the state constitution's single-subject mandate for the Legislature's referred ballot measures.

Any other challengers must be made within 10 days after the referendum was filed with the secretary of state, which occurred June 4.

What do law enforcement agencies think of HCR 2060?

Some Arizona sheriffs have expressed support for the law.

Yavapai County Sheriff David Rhodes, president of the Arizona Sheriffs Association, said his members are "on board" to use "every reasonable means of trying to secure the border if the people of Arizona support this bill."

But Rhodes and others wonder if the state will really fund the law's enforcement.

"We’re committed to getting the border secure, but there has to be money spent," he said. "Frankly, the answer we got from the Senate president is not adequate."

Senate President Warren Petersen and other Legislative leaders have said repeatedly they would make sure the state gave enough money to law enforcement agencies for the arrest and incarceration of undocumented immigrants.

One potential roadblock to funding is state budget shortfalls expected to continue through fiscal year 2027, which ends June 30, 2027. The state won't have quite enough money to pay for what it already has budgeted through those years. Petersen, House Speaker Ben Toma and Hobbs are currently negotiating what to cut from the budgets.

How much could it cost to enforce HCR 2060?

Ryan Thornell, director of the Arizona Department of Corrections, Rehabilitation and Reentry, estimated the law would add 1,500 people yearly to the prison system, costing the state about $252 million over five years.

The nonpartisan Grand Canyon Institute estimated the law may cost the state about $325 yearly to enforce.

Republican lawmakers have said it will save money by deterring undocumented immigrants from arriving in Arizona at all and by preventing crime related to illegal border crossing. Rep. Barbara Parker of Mesa claimed on the House floor on Tuesday it would save the state $2 billion, but didn't say where she got the estimate or what it's based on.

Democrats pointed out that many migrants leave the state after crossing the border and that the proposed law would keep them in jail here, costing the state more money than if federal officials processed the migrants.

Will supporters launch a campaign in favor of the measure?

Toma told reporters after Tuesday's vote he believes "there will be a campaign" in support of the ballot measure, but had no details on who would lead it or how it might be funded.

He suggested the need for a campaign might not be strong in Arizona, where he predicted "average voters" would support it because they "understand this is a border security issue first and foremost."

"As such," he added of the measure's chance of success at the polls, "I think it's going to be fine."

Reach the reporter at rstern@arizonarepublic.comor 480-276-3237. Follow him on X @raystern.