A federal judge this morning questioned a bid by civil rights groups to get her to again block the state from enforcing a key provision of a 2010 law aimed at illegal immigrants.
Two years ago Susan Bolton issued an injunction against what's become known as the papers please provision of SB 1070. It says police must question those they have stopped about their immigration status if there is reason to believe they are in this country illegally. That ruling came in a challenge to the law by the Obama administration which said the state was intruding into an area of exclusive federal jurisdiction. But in June the U.S. Supreme Court overruled Bolton. Now various groups are asking her to issue another injunction. Attorney Karen Tumlin of the National Immigration Law Center told Bolton THIS case is based on new evidence that was not before the high court. That includes arguments that Latinos will be disproportionately impacted by SB 1070. But attorney John Bouma who represents the state said the law is aimed solely at illegal immigrants. And all the discussion of numbers, he said, is irrelevant.
"If the majority of people who come across the border are Latinos, the more people are going to be affected by the laws making illegal immigration a problem," Bouma said.
But attorney Victor Viramontes of the Mexican American Legal Defense and Educational Fund said lawmakers knew when they adopted SB 1070 that it would have a disparate impact on Hispanics.
"And what the Supreme Court has said is that proving discriminatory intent of a Legislature is a very difficult, complicated task," Viramontes said. "But one of the factors that they said points to discriminatory intent is when the Legislature passes a law that is going to overwhelmingly burden a single racial group or a single ethnic group."
Tumlin also told Bolton she is entitled to issue an injunction because there was a racial motivation behind its enactment. Tumlin cited various statements and e-mails, many linked to former state Senate President Russell Pearce, which she said showed the intent behind the measure was to go after Hispanics. She acknowledged that it actually took a vote of the majority of the House and Senate, along with the signature of Gov. Jan Brewer, to have SB 1070 become law. But Tumlin said it does not matter if others -- even the majority -- had a non-racial motive for voting for the bill.
"The law doesn't require proof to show that every single individual who voted for the law was motivated by racism," Tumlin said. "What the law says is it is inappropriate to legislate in the United States based on someone's national origin or based on their race if you can show that was a motivating consideration. It's the equivalent of legislative poison."
Bouma said any of Pearce's comments were about illegal immigrants, not about Hispanics as a group. Anyway, he said the judge needs to consider the real reason state lawmakers approved SB 1070.
"The people were worried about illegal immigration," Bouma said. "And there's good reason to be concerned about illegal immigration. If Hispanics happen to be the people who are the highest percentage who come across the border illegally, believe it or not, they're probably the highest percentage that'll be prosecuted under the statute."
Bouma conceded that the terms of SB 1070 itself allow race to be one factor that police take into account when deciding whether to question those they have stopped about their immigration status. But he said that does not mean there will be racial profiling.
"The statute itself says it has to be applied in a constitutional manner with respect for people's rights and privileges," Bouma said. "And the United States Supreme Court has spoken on that and says that race ultimately can be a factor, but not the determining factor."