Arizona Legal Cases

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Three Arizona legal cases have made the news lately, two dealing with immigration and a third with voting rights. Arizona State University law professor Paul Bender will discuss the cases.

Ted Simons: Good evening and welcome to Arizona Horizon. I'm Ted Simons. There have been three recent court rulings on Arizona cases involving illegal immigration issues, including one case that got the attention of the Supreme Court. At least one Justice. Joining us now is ASU law Professor Paul Bender, always good to have you here. Got to go through these quickly because we have got three to talk about. Let's start with this last vestige, it seems, of sb-1070. What's going on here?

Paul Bender: It's a part that the judge had not ruled on previously in the big litigation that went to the Supreme Court. It's a provision that makes it a state crime to smuggle human beings for profit purpose, and that means transporting people who you know or have reason to know are illegally in the country. The question is whether it's constitutional for a state to make moving an illegal alien a state crime. Judge Bolten said that it was preempted, it was preempted by the Federal for the same reasons the Supreme Court held most of 1070 is preempted. Immigration is something for the Federal Government. If the state wants to enforce Federal immigration laws, they have to do it under the authority with the cooperation of under the direction of the future attorney general of the United States. So, if you stick with that, this goes clearly unconstitutional. This lets the state go off on its own. After a state judge would decide who is here illegally or not, and that's inconsistent with the idea that the Federal Government is in control of the immigration.

Ted Simons: So, preemption, the major issue here.

Paul Bender: I would think. And the Ninth Circuit has decided a case on a statute very close to this one. It's distinguishable, but I don't think that they will think it is.

Ted Simons: Yeah.

Paul Bender: And so this case, all three of these may be headed to the Supreme Court. I was going to say this has to be appealed.

Ted Simons: Yeah.

Paul Bender: It will go to the ninth circuit, and if the Ninth Circuit agrees it's unconstitutional, there's a good chance it would go to the Supreme Court.

Ted Simons: The other was involved, the tenth circuit court of appeals, regarding this, this Federal voting registration forum as opposed to the Arizona requirements.

Paul Bender: We have seen this case before. It was in the Supreme Court. It is something that the voters adopted in 2004, which says that it is part of a package of voting, in order to register to vote in Arizona, you have to prove that you are a citizen by bringing proof of citizenship versus something like that. The Federal Government in the late '90s passed the motor voter law, to make it as easy as possible to register because as we know from the last election, not too many people vote. And it says you can register to vote in seller elections by just saying you are a citizen and swearing on the penalty of perjury that you are, and the question is, whether Arizona can, can, can require you -- can enforce its own law on people who vote in the Federal elections. That issue went to the Supreme Court a couple of years ago, and the Supreme Court decided that, that the state law was preempted by the Federal law because the Federal law says that you can -- only Federal elections.

Ted Simons: Right.

Paul Bender: And because the Federal law says that you can register by just swearing you are a citizen. But the supreme opinion was written by Justice Scalia, and he said Arizona doesn't have to worry because they can go to the Federal election systems commission and ask them to change the rules for Arizona. They can appeal under the administrative procedure act, and everybody know thought that he was saying, you know, Kansas was in the same position. They went to the commission, and the commission wrote a fairly long opinion, explaining that they were not going to change it because the only reason for changing it would be if Arizona needed this in order to enforce its requirement that people be citizens in order to vote. The commission, the executive director wrote the thing, said there are five other ways that they could enforce that. They don't need to have that, and therefore, we're not going to give them the authority. So, they went to a district court on a review, and the district court agreed with Arizona and said no. You have to do this, but the tenth circuit just said a few days ago that no, you don't have to do that. It's a matter for the discretion of the commission, and they decide, and they have plenty of evidence to back up their decision, and so they don't have to change it. So, I assume that the state will now try to take that to the Supreme Court as a follow-up to the case before.

Ted Simons: All right. Last one here, the third one, and this involves the Supreme Court to Justice Kennedy, who blocked the ninth decision on bails for undocumented folks. What's this all about?

Paul Bender: This is an interesting and difficult case. An important one because I don't think that this has ever come up before. The people of Arizona in 2006 adopted a, a constitutional amendment which says that illegal aliens charged with serious felonies, which has been defined, basically, as any felony, may never be released on bail. Just because they are illegal. You don't do any individualized determination of the likelihood that, that they are going to show up or not. And that was challenged, and the ninth circuit just held en blanc, 11 judges, in a 9-decision that that was unconstitutional. You would think that, that -- you would decide that case under the eighth amendment, which says that there shall be no excessive bail. That seems to suggest that there is a right to bail. But, the Supreme Court did not enforce that, and instead, this case was decided, and other similar cases were decided under the due process clause. Is it, is it permissible, interference with liberty to keep someone in jail who hasn't been convicted because you think that they are not going to show up for, for the hearing. And the ninth circuit said, you have a compelling interest to do that, but it's got to be narrowly tailored, and to be narrowly tailored, you have to look at each individual and decide whether that individual creates a flight risk. And if they do, you don't have to give them bail, or give them large bail. But, if somebody comes in, accused of, of, of fairly moderate -- stealing 3,000, something like that, and he lived here for 25 years as a family, has a family here, business here, illegal, but has lots of ties to the community, then there is no reason that you need to deny the bail to that kind of a person.

Ted Simons: So the ninth made their decision. Why Justice Kennedy block it?

Paul Bender: So, the state wants to go to the Supreme Court, to petition the Supreme Court. They asked the Ninth Circuit to delay the decision. It refused. They go to Justice Kennedy, who is the circuit judge, and ask him, what he did was he said, I will stay it for a few days to give the other side, the people who wanted it, a chance to, to respond, and they were supposed to do that on Monday. I assume that they did. We have heard nothing from Justice Kennedy. He said after he sees that, he will decide whether to extend the stay or whether to refer it to the court. The court has a conference tomorrow, and I assume that he will refer it to the court at the conference, so we should find out tomorrow afternoon whether the Supreme Court is going to stay the Ninth Circuit -- if they stay the Ninth Circuit decision, there's a very good chance that they will grant it and reverse the Ninth Circuit decision.

Ted Simons: Interesting.

Paul Bender: It would be an important constitutional case about the -- remember, people who were arrested have not been convicted, so they are entitled to be free until they are convicted. The only reason for keeping them is that they pose a danger. Well, the Ninth Circuit said that you have to prove it as to each individual. You cannot assume that everyone in that category poses a danger.

Ted Simons: All right. Good stuff. Good to have you here. We'll keep an eye on what's happening.

Paul Bender: Arizona and the Supreme Court.

Ted Simons: Yeah.

Paul Bender:Law Professor, Arizona State University;

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