Arizona Attorney General Tom Horne discusses Governor Jan Brewer’s decision to appeal directly to the U.S. Supreme Court to lift a federal judge’s injunction that prohibits key parts of SB 1070 from taking effect.
Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. Arizona will ask the United States Supreme Court to lift an injunction that put key parts of S.B. 1070 on hold. A three-judge panel of the ninth circuit Court of Appeals upheld the injunction in April. At a press conference today, Governor Jan Brewer announced plans to appeal directly to the Supreme Court. Another option would have been to ask a larger panel of judges at the ninth circuit to reconsider that court's previous ruling. But the governor said that would likely take too long. Joining me now to talk about this and other issues involving his office, is Arizona attorney general Tom Horne. Good to see you again.
Tom Horne: Good to be with you.
Ted Simons: Why appeal directly to the Supreme Court?
Tom Horne: Well, the final decision maker will probably be the U.S. Supreme Court. This is a case of great national importance. To go to the ninth circuit again, what they call in bank, where you get 11 judges instead of three would take a lot of time and nobody who accept the decision. The losing side would go to the United States Supreme Court in any case. We thinks it's best to go directly to the US Supreme court and get it done as soon as possible because we've got a real problem at the border and we need to do everything we can in a timely way.
Ted Simons: Why do you think the high court will take the case?
Tom Horne: Because it's important and involves the sovereignty of the federal government, the sovereignty of the state government and what situation does the federal government preempt the state so the state cannot act. We have a strange situation where they relied on the complaints from the foreign governments and influenced how they ruled in a constitutional issue within the United States. The relationship between the federal and state government. So I think they'll be very interested in that.
Ted Simons: We've had a federal judge block that. The three-panel ninth blocked it as well. It sounds like federal -- federal authority here seems to be holding sway in these courts. Let's say the U.S. Supreme Court does decide to take this, what indication do you have that it will come out in your favor?
Tom Horne: The ninth circuit decision was a two to one decision. Judge Kazansky dissented, very eloquent to say dealing with each of the four issues that we have. And I think that in the United States Supreme Court, you have a somewhat more conservative panel than at the ninth circuit which is considered to be the country's most liberal circuit. And also the most overruled.
Ted Simons: Indeed. The governor mentioned this injunction is doing harm to the safety and well-being of all Arizonans and that's why it's important to get it on the fast track. How is it doing harm and safety to all Arizonans, this injunction? A lot of floks say I don't see much happening here since that decision came down.
Tom Horne: To me, S.B. 1070 is a force multiplier for our border guard. If we can do more with our local and our state law enforcement officers to enforce within the state of Arizona the immigration laws that free the border guard to be on the border and in the Tucson sector alone, probably about 400,000 people cross the border illegally last year. Including criminal enterprises that have expanded beyond just smuggling drugs to all kinds of criminal activities in a vicious manner where they cut people's heads off. We had a beheading in Chandler where they kidnapped and killed public officials and business leaders and so on. Those kinds of people are coming in with that 400,000 and we have people from the Middle East caught crossing. So if you're a terrorist in the Middle East and want to come to United States and do us harm, the best thing is go to Mexico and be surrounded by the 400,000 people and get into the United States that way.
Ted Simons: If these threats are real and if the threats are tangible and something we should be concerned about and something we should watch out for, why is there not a concerted effort on the part of Arizona officials to get to our congressional delegation and Capitol Hill and do something? It seems the courts say there's a federal preemption and if that's the case -- preemption, why not go to the horse's mouth and get it done that way?
Tom Horne: Ted I anticipate your needs. Tomorrow, I'm flying to Washington and Wednesday will be testifying before the congressional committee on the subject of what needs to be done at the border. And we're doing that. And at the same time, we want to help enforce immigration law S.B. 1070.
Ted Simons: I don't want to go into too deeply into what the arguments were, but a status and requirements arrest and requirement to carry registration documents and whether or not the police understand what previous -- there are a lot of intricacies involving this case.
Tom Horne: You know, there are four. But one example. S.B. 1070 requires that if a local or state law enforcement officer arrests someone and reason to believe they're here illegally, they must check with ice. They don't have a choice. They must check with ice. The federal government says that makes us destroy our priorities. We may not want to spend money on ice answering all those questions. There's a congressional act signed by the president that says that ice has to respond from local and state law enforcement officers so that issues was really just determined by congress and I think the ninth circuit is plain wrong on that issue as well as the other issues.
Ted Simons: In TOTO, the idea is that the feds have their ideas for immigration enforcement. Those ideas have been there've been there for a reason and they've been here quiet a while and -- Russell Pearce, President Pearce says this is a states' rights issue. Do you agree with that?
Tom Horne: I definitely agree. The federal government has duties at the border but when people cross the border and commit crimes in Arizona, they become our problem and for the federal government which is not doing its jobs a t the border and that's why I'm going to Washington and testify, to say they won't let us do our job, creates a vacuum where no one is doing his or her job and that's a very damaging invasion of states' rights.
Ted Simons: Is it good for Arizona to continually be in the media, leading this particular parade? Is it good for our image?
Tom Horne: I think so. Since the Democrats lost control of the House of Representatives, the Obama administration is not going to get its program through congress. So they'll try to do it like global warming and other things do by regulation, but failed to get through congress. The first line of defense is the states attorneys general and Arizona is at the cutting edge. So that makes my job an interesting one.
Ted Simons: I want to get to the Gonzalez case, it seems as though the court says it's clear what the state wants to do and maybe for very good reasons is try doing, it can't do because it's in an arena it doesn't belong.
Tom Horne: That's a 2-1 decision which in my opinion is erroneous and that's what the United States Supreme Court is there for. If circuits were infallible, we wouldn't need the United States Supreme Court.
Ted Simons: Would you be surprised if the high court doesn't look at this?
Tom Horne: Very.
Ted Simons: Let's talk about Gonzalez for AZ where full ninth court will review the case before voter registration. Talk to us about that.
Tom Horne: A three-judge panel ruled that Arizona did not have the right to check if people were citizens when they registered to vote, which was pretty shocking to us. But that was quiet a famous decision when Justice O'Connor was on that panel by designation. We filed for a petition for hearing in bank, which means 11 judges of the 9th circuit instead of three. That petition was granted to the extent they would hear us. We don't know what the result would be. But the three-judge panel decision was erroneous because what they decided was that the federal government designed a form to use to register and you can't supplement it but there's a provision that says that states can require documentation to assure these are eligible voters as long as they don't violate certain prohibitions such as you can't require notarization and others formalities. We don't require those things that are prohibited. We only require proof of citizenship. I think that the three-judge panel was mistaken because there's federal law on point that says that states can require additional information.
Ted Simons: So when the court says it is preempted by the National Voter Registration Act, you say?
Tom Horne: I say it's not preempted; it's in line with the concept of what congress passed because congress specifically said that states can require documentation to ensure that people are eligible to vote.
Ted Simons: Isn't it already a felony, a federal felony to lie on a voter application form?
Tom Horne: It is, and the -- the -- one of the things that the -- the three-judge panel said was that the congress provided a means of preventing people from illegally registering by requiring them to swear so it's an additional violation. It's already a violation to vote illegally, so if someone is willing to do that violation, they're going to be willing do the second violation of saying they're citizens when they're not. The way people -- they've caught people falsely doing that are when the jury questionnaires went out. I'm not a citizen, I don't have to be a juror, and the same people registered to vote. And they're catching people. Incidentally, can somebody sent me of a picture from a county, of a car with a Mexican license plate and a vote democrat --
Ted Simons: We don't want to go into that. Here's the last question. We heard all sorts of rumors about problems in Yuma. The secretary of state looks at it. The secretary of state says there is no problem in Yuma. We keep hearing there's a problem and have to have the law. Voters put the law in place and the feds say it's preempted and you say we have to have it -- it's preempted and you say - Where is the problem. I am yet to see I'm waiting to find out where the voter registration fraud is going on.
Tom Horne: We know it's a problem and the way we've caught some people, they declined to become jurors saying they weren't citizens. So there is voter registration fraud going on. And the early stages of proceedings when it came to the U.S. Supreme Court and the Supreme Court justice said the people have the right regardless of the extent of the problem. The people need to know their vote is not diluted by improper voting and so there is a genuine right of our citizens of Arizona were astounded. And I think we're going to get a reversal.
Ted Simons: You're saying there are hard facts where there's voter fraud happening at a heavy clip?
Tom Horne: Well, I don't know about the heavy clip but I'll agree everything prior to the words heavy clip. I agree with you.
Ted Simons: Good to see you again.
Tom Horne: Thank you.
Tom Horne:Attorney General;