December 9, 2004
A federal judge has given the OK for Gov. Janet Napolitano to officially proclaim approval of Proposition 200.
Judge David Bury, in an order released Wednesday, said Napolitano is free to declare that voters approved sections of the initiative that require proof of citizenship to register to vote and mandate that those seeking to cast a ballot must first present identification.
That does not let the new voting procedures take effect. It does permit the state to submit the change to the U.S. Department of Justice, which must review the initiative to ensure it does not illegally impair the voting rights of minorities.
Bury still has to rule on a challenge to the initiative filed last month. If he decides Proposition 200 is legal, having the measure already "precleared’’ by the Department of Justice will enable the new voting procedures to go into effect immediately.
Bury has left intact part of his original Nov. 30 order barring the state from enforcing the section of Proposition 200 that says government employees must get proof that applicants for public benefits are here legally and are required to report illegal entrants to federal officials. That order also precludes proclaiming voter approval of that section of the initiative.
Based on that, Napolitano late Wednesday authorized an "auto pen" signing of a modified proclamation while she is out of town. The actual signing was done by machine after the governor, who is in Washington, gave her verbal approval; she will formally sign it when she returns on Monday.
The move comes as a Colorado-based public interest law firm filed legal papers Wednesday to intervene on behalf of the Yes on 200 committee and Randy Pullen, its chairman, in the federal court lawsuit challenging the legality of the initiative. That lawsuit filed by the Mexican American Legal Defense and Education Fund contends the voting and public benefits provisions are illegal.
William Perry Pendley, president of Mountain States Legal Foundation, said he believes Napolitano and Attorney General Terry Goddard won’t vigorously defend the legality of the voterapproved law when the case goes back before Bury on Dec. 22.
Pendley noted that both personally opposed the initiative.
He also faulted the attorney general for issuing a formal legal opinion last month declaring that the provisions of Proposition 200 requiring proof of legal residency for "public benefits’’ applies to only a narrow range of services.
Pendley also said state attorneys failed to raise a key objection at the Nov. 30 hearing when initiative challengers received a restraining order against enforcement of the measure.
Pendley said one issue before Bury was whether temporarily blocking the law from taking effect would result in a cost to taxpayers.
Initiative proponents contend illegal immigration costs $1 billion a year in Arizona. Based on that, Pendley said, the cost of delaying Proposition 200 even until Dec. 22 will cost the state $60 million.
But that $1 billion figure, prepared by the Federation for American Immigration Reform, includes all federal and state services that illegal entrants might use, including education and emergency care, which are not affected by Proposition 200.
Napolitano and Goddard have insisted repeatedly they will defend the legality of the initiative in court despite their personal feelings.
Pendley’s motion, filed in federal court in Tucson, also seeks intervention in the lawsuit on behalf of the federation. The lawyer said that national group has an interest in the lawsuit because it spent more than $150,000 to put the measure on the ballot and push for its approval.