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Arizona’s SB 1070—After the Supreme Court Ruling, What’s Next and Where Does the Public Stand?

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New Fact Sheet and Polling Round-Up Highlight Next Steps in Fighting “Papers on Demand” Provision and Continuing Strong Opposition to SB 1070

Washington, DC – In the wake of the Supreme Court’s decision on SB 1070, many have been left wondering what does this mean, what happens now and where do voters stand on this decision?  A fact sheet and polling round-up from America’s Voice Education Fund helps sift through the legal implications and next steps after the decision as well as highlights where the public now stands on immigration reform and Arizona’s “show me your papers” law.

The Supreme Court’s Decision

The U.S. Supreme Court handed down a mixed ruling on June 25, 2012, in the U.S. government’s challenge to Arizona’s notorious racial profiling law, SB 1070.  In a 5-3 decision, with Justice Kagan recusing herself, the court struck down three of the four Arizona provisions that the federal government had challenged, holding that these provisions are clearly preempted by federal law.

The fourth provision was Section 2B, the “papers on demand” provision. The court reinstated Section 2B for now because, based on the information the court had on the record, it was unable to say that implementing the provision would definitely violate federal law or constitutional protections.  The Court specifically stated that the provision could raise constitutional problems, if, for example, someone were detained in order to verify their immigration status. The Court noted that Section 2B of SB 1070 has three distinct limitations that are included in the language of the Arizona law itself:  1) officers cannot engage in racial profiling to determine who they stop and ask for papers; 2) a person is presumed to have lawful status if they present a valid Arizona driver’s license or similar identification, and 3) the privileges of U.S. citizens, and civil rights of all people, must be respected.

The Court went on to say, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect” – taking a “wait and see” approach to the ultimate question of whether Section 2B can be implemented in a way that does not violate the constitution.

What’s Next

The Supreme Court’s ruling has the effect of allowing the “papers on demand” provision of Arizona’s law to go into effect—but this will not happen immediately, and may never happen if other court challenges are successful.  The “papers on demand” provision cannot go into effect in Arizona unless and until the preliminary injunction (the ruling which initially stopped its implementation in 2010) is lifted by the lower courts.

The technical procedure goes this way: because the Supreme Court reversed the lower courts on the “papers on demand” provision, the case is now sent back, or “remanded,” to the Ninth Circuit, which must issue a new ruling consistent with the Supreme Court’s opinion in the case.  The Ninth Circuit may lift the injunction, or may send the case back to the federal district court, which will have to modify its own ruling and lift the injunction in order to comply with the Supreme Court’s decision.  This process can take several days or even weeks, depending on how quickly the Ninth Circuit and federal district court act.

While the case is sent back to the lower courts and they revise their previous opinions and orders to comply with the Supreme Court’s decision, other challenges to Section 2B and other provisions of the Arizona law remain alive and pending.

The Friendly House case, brought by several civil rights organizations[1], remains pending in federal district court.  This case argues that SB1070 is inherently unconstitutional because it cannot be implemented without engaging in racial profiling and discrimination.  Federal District Court Judge Susan Bolton did not enjoin Section 2B under the Friendly House case, however, because she had already enjoined Section 2B as the result of the U.S. government’s federal preemption challenge—the ruling which the Supreme Court has now remanded back to be reconsidered.

Judge Bolton could now issue a new injunction stopping the implementation of Section 2B if she determines that citizens and residents of Arizona would suffer irreparable harm if the law is allowed to go into effect, and that the civil rights groups challenging the law in the Friendly House case are likely to prevail in their racial profiling and discrimination challenge.

The results of these various court decisions suggest two possible scenarios in the coming days and weeks:

1. The Ninth Circuit and Judge Bolton revise their previous rulings and lift the existing injunction against Section 2B, allowing it to go into effect.

2. The Ninth Circuit or Judge Bolton lift the current injunction, but Judge Bolton replaces it with a new injunction based on the Friendly House (civil rights) challenge. This would prevent Section 2B from going into effect while the Friendly House case makes its way through the courts.

In either scenario, the Friendly House case will continue to challenge SB 1070 in the courts.  If Section 2B goes into effect, lawyers will be able to supplement their arguments with actual cases of discrimination and profiling that will inevitably take place as the result of the law going into effect in Arizona. This case will make its way through the courts, and possibly all the way to the U.S. Supreme Court, which would then rule on the racial profiling challenge.  This process could take another year or more.

The U.S. Department of Justice may also decide to join the Friendly House case, bring a new case, or amend its existing case, based on actual cases of profiling and discrimination that take place in the event the law goes into effect.

Where the Public Really Stands on Immigration Reform and the AZ Law

Now that the Supreme Court has ruled on Arizona’s anti-immigration law, SB 1070, we turn to another court for its ruling—the court of public opinion.

Polls show support for both state-based laws and comprehensive, federal reform—not to mention pro-immigrant policies like President Obama’s recent commitment to protecting for DREAMers from deportation.  So where do voters really stand?  When it comes to immigration, do politicians have to choose between courting Latinos and other voters, or is there common ground after all?

Read on to find out.

To Latinos, Arizona’s Law is Both Divisive and Motivating

When Arizona’s SB 1070 became law in 2010, it received major attention in the national news—both in English and in Spanish.  For the Latino community, it became a symbol of the anti-immigrant and anti-Latino sentiment that has infected politics in recent years.

Latino voters strongly oppose SB 1070.  Shortly after SB 1070 became law, most Latino voters had already heard about it and were strongly opposed, according to an AP-Univision poll.  Fifty-six percent of Latinos said they had heard a lot about the law, while only 33% of non-Latinos reported the same.  Only 5% of Latinos had heard nothing about SB 1070, compared with 22% of non-Latinos.  Two-thirds (67%) of Latino voters said that they opposed the Arizona law, with an impressive 60% strongly opposed.  Nineteen percent were unsure at that time.

Arizona Latinos were at the forefront of the debate, and in May 2010 81% of them opposed the law according to an NCLR-Latino Decisions poll.  As awareness grew within the Latino community in other states, so did opposition to SB 1070.  By November 2010, 74% of Latinos across the country were opposed, including 65% strongly opposed, according to Latino Decisions.  Only 9% remained unsure.

As the Supreme Court was considering the case, a Latino Decisions/America’s Voice poll asked Latino voters in five key states—Arizona, Colorado, Florida, Nevada and Virginia–how they would feel if the Court upheld the law. Across all five states, 60% of Latino voters agreed that upholding the law would create an anti-immigrant, anti-Hispanic atmosphere around the country. Less than a third of voters—28%–believed the law would have no impact. In Arizona and Nevada, 65% of Latino voters worried about an anti-immigrant, anti-Hispanic backlash if the law were upheld.

Immigration is a mobilizing issue to Latinos.  In November 2010, after months of news coverage over SB 1070, Republican opposition to the DREAM Act, and anti-immigrant campaigning in the mid-term elections, 60% of Latino voters told Latino Decisions that immigration was “the most important” or “one of the important” issues in their voting decisions.  In Arizona, a whopping 69% of Latinos said it was one of the most important issues impacting their voting choices, and 40% said it was the most influential factor.  The “Latino firewall” in the west is widely credited for keeping the Senate in Democratic hands during the Republican wave of 2010.

In 2011, Arizona state senator Russell Pearce, the lead sponsor of SB 1070, lost his seat in a historic recall election thanks in large part to mobilization by Latino voters.  In 2012, Latino voters are putting Arizona back on the map for the Democratic Party.  Years of anti-immigrant rhetoric and posturing are hurting Republicans in this state with a growing Latino voter population.

Now, polls show that Mitt Romney’s embrace of SB 1070-style policies will hurt him with Latinos.  In an April 2012 Public Policy Polling poll of Latino likely voters in key states, 58% of respondents in New Mexico said Romney’s support for SB 1070 made them less likely to vote for him; 55% of respondents in Nevada said the same; and 50% of respondents in Florida said the same.

Politicians Misunderstand Immigration Polls; Voters Want Action, But Prefer Comprehensive Immigration Reform

While most people aren’t surprised to hear that a majority of Latino voters support comprehensive immigration reform, the views of other groups are often completely misunderstood.  When asked about state-level immigration reforms like SB 1070, a majority of Americans are supportive.  But research shows that this simply speaks to their desire for action over the status quo.  Larger majorities are in favor of balanced federal reforms like the DREAM Act and comprehensive immigration reform.  

In a series of national polls taken in the months after SB 1070 was passed, a slim majority of Americans supported the law—but a larger majority supported comprehensive immigration reform, including a path to legal status for the undocumented.  This includes polls taken by the New York Times/CBS in May 2010 (64% supported comprehensive immigration reform; 51% said SB 1070 was “about right”); AP/Univision in May 2010 (59% supported comprehensive immigration reform; 42% supported SB 1070); and NBC/MSNBC in May 2010 (65% supported comprehensive immigration reform; 61% supported SB 1070).

This continues to be true as the Supreme Court’s decision nears. A New York Times/CBS poll conducted in June 2012 showed that roughly half of all voters supported SB 1070.  Still, 64% favored some form of legalization (either permanent citizenship or guest-worker status) for the undocumented.

Even in Arizona, a July 2010 Arizona Republic poll found that 62% of voters supported comprehensive immigration reform, while only 55% supported SB 1070.  In fact, a poll conducted by Lake Research Partners for America’s Voice/America’s Voice Education Fund in summer 2010 found that an overwhelming 84% of voters who support Arizona’s law also support comprehensive immigration reform.  Clearly, voters want action, but support for a real solution at the federal level is strong.

Ultimately, Americans think immigration policy should be made by the federal government, not by the states.  As the Lake poll found, a majority of people who support SB 1070 do so because “the federal government has failed to solve the problem.” However, 56% percent said that immigration should be dealt with at the federal level while only 22% said it should be dealt with by the states.

When voters learn the economic, societal, and legal costs associated with anti-immigration state laws, support falters.  A July 2010 Rasmussen poll of Arizona voters found that 46% believed passing SB 1070 had had a negative impact on the state’s image; 40% said it had a positive impact.  In Alabama, a December 2011 poll conducted by the Alabama Education Association showed that only a few months after this state passed its version of SB 1070, 55% of voters wanted the law to be revised or repealed.  The same was true in a March 2012 Anzalone Lizst Research survey.

Americans believe the immigration system is broken and know that action is needed to fix it.  And some voters are so frustrated with the stalemate in Washington that they’re willing to consider other options.  But support for comprehensive immigration reform is actually stronger than support for state-based crackdown laws.  As it turns out, politicians can appeal to both Latino voters and other Americans simply by embracing and acting on real immigration solutions.

Links to Resources:

America’s Voice Education Fund — Harnessing the power of American voices and American values to win common sense immigration reform.