Leave Prop. 200 tweaking to Legislature, not courts
November 24, 2004

Jim Kiser

Attorney General Terry Goddard issued an opinion Nov. 12 clarifying the scope of the new law created by Proposition 200.

Just six days later, Prop. 200 supporter Randy Pullen filed a lawsuit, contending Goddard interpreted the new law too narrowly.
That is a shame. This is an issue that properly belongs in the Legislature, not the courts.
After months of a divisive, sometimes ugly campaign, Arizonans voted 56-44 for the proposition. Supporters said it would ensure illegal immigrants do not violate the law by voting or receiving certain public benefits.
Opponents said it was unnecessary at best, racist at worst. They also feared it would have far-reaching and expensive unintended consequences.
That argument aside, Prop. 200 now is law and will go into effect within the next few weeks. This presents a problem, however. Prop. 200 requires agencies providing "state and local public benefits" to verify that each applicant is eligible for the benefits. It further requires employees to report any illegal immigrant who applies for benefits. Failure to do so is a misdemeanor.
But the initiative did not define what it meant by "public benefits." How do state employees comply with a new law they don't understand?
Thus, it fell to the attorney general to tell state officials which agencies and benefits are affected. He did so in a 14-page opinion that concluded the phrase "public benefits" refers only to welfare benefits.
His opinion means Prop. 200 does not affect such things as health care for the poor, temporary assistance to needy families or home care for the elderly.
Goddard's interpretation is both reasonable and thoughtful. Arizona laws are broken into "titles," with each one on a specific subject. The drafters of Prop. 200 placed the "public benefits" language into Title 46, which deals with welfare.
Goddard logically concluded this meant they intended for the law to affect only welfare benefits. He noted that the drafters had the option of putting the language into Title 36, which governs public health programs, or Title 38, which sets requirements for public officers, but chose the welfare section instead.
Goddard's interpretation won support from a surprising source - surprising to me, at least. Kathy McKee, organizer of the original committee that drafted Proposition 200, said Goddard got it right.
She characterized as "offensive" Pullen's lawsuit, and she criticized the backing Pullen is receiving from the out-of-state Federation for American Immigration Reform.
Pullen, however, wants the courts to rule that programs other than welfare are covered, such as temporary assistance to needy families and the state's health insurance program for the poor.
Pullen filed his lawsuit in Mesa, rather than with the main court in downtown Phoenix. That was deliberate, he told Howard Fischer of Capitol Media Services. "Sometimes you've got to think about what judges you might get," he said.
Rather than trying to find a friendly judge, however, Pullen has a better option. He should be asking legislators to craft a law extending the scope of Prop. 200 to cover the programs he wants. New laws are the province of the Legislature, not the courts.
In the meantime, the final legal steps required to turn Prop. 200 into state law are nearly complete. On Monday, Secretary of State Jan Brewer certified the final election results.
Now, Gov. Janet Napolitano must proclaim it is in effect and order state agencies to implement it. She will do that perhaps as early as next week.
She is holding back momentarily so that state agencies can gear up for the law's implementation.
They need to determine such things as which welfare programs are affected and what requirements should be set for verifying identification.
Goddard didn't attempt to resolve those issues, but he said his office will provide guidance to the responsible agencies.
Turning Prop. 200's voting provisions into law will take more time. They would require Arizonans to show proof of citizenship when registering to vote and to show identification when voting.
Before they can go into effect, however, the U.S. Justice Department must determine that they do not restrict the rights of minority voters. That ruling should come by the end of January. Undoubtedly, lawsuits will be filed over the voting provisions before then.
The political debate over Prop. 200 was ugly and divisive, and it has left many people concerned about its effects.
Goddard has provided Arizona a path out of that ugly thicket. His opinion makes it possible to implement the public benefits provisions of Prop. 200, in accordance with the voters' wishes, but it would minimize the great damage that opponents feared.
● Jim Kiser's column appears Sundays and Wednesdays in the Star, P.O. Box 26807, Tucson, AZ 85726; 573-4597; e-mail: jkiser@azstarnet.com. Find previous columns at www.azstarnet.com/kiser.