Bid to freeze Arizona’s ‘Secure the Border Act’ fails, but fight isn’t over

The ballot measure, known as the Secure the Border Act, won 61% of the vote in 2024. It includes a provision that makes the act of crossing the state’s southern border without authorization anywhere but at an official port of entry a class 1 misdemeanor, which carries with it up to six months in jail. Local law enforcement officers would be empowered to arrest people they suspect of making unauthorized crossings and Arizona judges would be able to issue deportation orders, virtually overriding the federal immigration system. 

The sweeping changes to immigration enforcement didn’t go into effect until July 14 because Republican lawmakers tied the law’s implementation to a similar law in Texas, which was only recently revived by a federal appeals court. 

According to Arizona Attorney General Kris Mayes, who’s defending the law in court, that means that only people who cross into the state on or after that date can be convicted of a crime. But attorneys for the American Civil Liberties Union, which is representing the Florence Project, argued that the law negatively impacts the organization’s work and poses too high a risk of resulting in discriminatory policing. 

The ACLU requested a temporary restraining order to prevent the law from being implemented. A judge rejected that request. 

Amanda Mollindo, a spokesperson for the Arizona chapter of the ACLU, lamented the unapproved TRO, but noted that there’s still hope because the court has yet to consider whether a preliminary injunction is warranted. 

Unlike a TRO, which lasts just 14 days, a preliminary injunction can hold a law at bay throughout the length of litigation. But debate over whether that should happen is still days away. A scheduling hearing has been set for Aug. 11, and that will likely be when the court will pick a date to hear arguments on the question of whether to grant a preliminary injunction. 

Until then, Prop. 314 is in effect, and anyone who crosses Arizona’s southern border without authorization is at risk of being thrown into state criminal proceedings. 

While a preliminary injunction is a critical stopgap to minimize the impact of the Secure the Border Act, the ultimate goal of the two civil rights groups is to convince the court that the provision enhancing Arizona’s role in immigration enforcement unlawfully conflicts with the authority of the federal government and should be permanently blocked. 

ACLU attorneys likely face an uphill battle to prove that argument, however. Both Mayes and Republican state legislative leaders Warren Petersen and Steve Montenegro are backing the law in court. The trio assert that the Florence Project’s lawsuit was filed too early and that the nonprofit doesn’t have the right to issue a legal challenge at all because there is no actual violation to discuss: No one has been arrested under the law yet and the claims that the Florence Project’s work will be upended as it seeks to provide legal aid to as many people as possible doesn’t constitute a harm that the court should address. 

“Any time a state creates a new crime, it could result in lawyers having to adjust in myriad ways, including by complicating practice, representing more or fewer clients, incurring greater transportation or administrative costs and undertaking hiring or training efforts,” Mayes wrote in her response objecting to a TRO.

“Plaintiff’s speculative allegations do not meet the constitutional threshold to show that it is likely to suffer any injury or that any injury it may suffer is caused by (Prop. 314),” echoed Petersen and Montenegro. 

Similar arguments ultimately led to the dismissal of the case against the Texas law earlier this year. A federal appeals court ruled that the two Texas-based legal advocacy organizations that filed the lawsuit didn’t have a right to launch a legal challenge, despite their arguments that the law significantly hindered their ability to provide services to immigrants. 

But Mollindo said that’s not enough to rule out the Florence Project’s claims, pointing out that outcomes in the Arizona court system don’t rely on conclusions from another. 

“Legal analysis from one circuit to the next can differ,” she said.

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