As Election Looms, Observers Are Watching AZ Immigration Law Case Closely

On the eve of crucial midterm elections, the U.S. Court of Appeals for the Ninth Circuit will hear arguments over whether to reinstate key parts of an Arizona immigration bill that has seeped through the electoral politics of this border state and beyond.

While the impact of SB 1070 was partially limited by a federal judge last summer, its repercussions have been widespread, from creating new political capital for Arizona conservatives to inspiring a wave of more than 20,000 Latinos to register to vote.

On Monday, the U.S. Justice Department (DOJ), which sued to stop the law from taking effect, will try to persuade a three-judge panel in San Francisco to keep the injunction in place. Governor Jan Brewer, who signed SB 1070 into law, is financing the cost of the appeal through a Border Security and Immigration Legal Defense Fund that has received more than $3 million in contributions from across the country.

DOJ attorneys will likely argue that federal law pre-empts enforcement of state laws on immigration. Those arguments won the day in July, when U.S. District Judge Susan Bolton barred key parts of SB 1070 from taking effect, including a provision that would have made being an undocumented immigrant a state crime, subject to incarceration, and critics said it would lead to racial profiling.

Political observers and attorneys involved in the eight lawsuits challenging the constitutionality of SB 1070 say there is little chance the appeals court will rule on Monday, so it is unlikely the hearing will have any bearing when voters go to the polls.

Brewer Made “Right Calculation”

“I think 1070 changed the field of engagement so much that it made Brewer the heroine of the ride,” said Alfredo Gutiérrez, a former Democratic state senator and editor of La Frontera Times, a website focused on nationwide immigration issues that has been critical of the bill. “Politically speaking, she made the right calculation by signing it.”

Brewer, who is running for re-election, will be attending the 9th Circuit hearing in the company of GOP attorney general candidate Tom Horne. Horne, the current state schools superintendent, also was a major supporter of a bill to ban the teaching of ethnic studies in Arizona. Brewer signed that bill into law in May.

“If the federal government wants to be in charge of illegal immigration and they want no help from states, it then needs to do its job,” Brewer said in a statement. “Arizona would not be faced with this problem if the federal government honored its responsibilities.”

The current attorney general, Terry Goddard, a Democrat who is running against Brewer for governor, held a press conference on Sunday, taking some jabs at his opponent. The legal defense of any state bill challenged in court falls on the attorney general’s office, but Goddard decided to step aside after disagreements with Brewer’s legal team in June. Brewer said at the time that she didn't believe Goddard could defend the measure because his opposition represented a conflict of interest, and she hired a private firm to do the job.

“It does surprise a little bit she is there at all, because if I remember correctly, San Francisco is one of the cities that is boycotting the state of Arizona over Senate Bill 1070,” said Goddard, who running slightly behind Brewer in the latest polls. “Apparently, if she gets publicity, she puts aside the concern about the boycott.”

Goddard called on Brewer to address issues facing Arizona rather than leave the state on the eve of important elections. Specifically, he urged her to conduct an exhaustive investigation into security conditions at private prisons in the state, in the wake of the escape of three inmates from a privately run prison in Kingman, Ariz., last July who have been accused in the murder of a New Mexico couple.