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Nos. 15-15211, 15-15213, 15-15215
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PUENTE ARIZONA, et al.,
Plaintiff-Appellee,
vs.
JOSEPH M. ARPAIO, et al.,
Defendant-Appellants.

On Appeal from the United States District Court for the District of Arizona
Case No. 2:14-CV-01356-DCG (PHX)
Honorable David G. Campbell, District Court Judge
MOTION OF PROFESSORS DORIS MARIE PROVINE AND CECILIA
MENJÍVAR FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT
OF PLAINTIFF-APPELLEES

WILLIAM L. THORPE
SPENCER G. SCHARFF
THORPE SHWER, P.C.
3200 North Central Avenue, Suite 1560
Phoenix, Arizona 85012-2441
Telephone: (602) 682-6100
Facsimile: (602) 682-6149
SScharff@thorpeshwer.com
Counsel for Amici Curiae
Professors Doris Marie Provine and
Cecilia Menjívar

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MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF
IN SUPPORT OF PLAINTIFF-APPELLEES
Amici Curiae Professors Doris Marie Provine and Cecilia Menjívar
respectfully move for leave to file the attached amici curiae brief in support of
Plaintiff-Appellees. Amici have obtained consent of the attorneys for PlaintiffAppellees and Defendant-Appellant State of Arizona. Amici endeavored to obtain
consent of Defendant-Appellants Sheriff Arpaio, Maricopa County, and County
Attorney Montgomery for filing this amici brief, but their attorneys did not respond
to Amici’s request. See 9th Cir. R. 29-3.
The proposed Amici, Professors Doris Marie Provine and Cecilia Menjívar,
are professors with well-established reputations as experts in policies and practices
related to unauthorized immigrants and in the investigation of legislative intent.
Dr. Doris Marie Provine (J.D., Ph.D. Cornell) has written a well-received
book about Congressional intent in adopting various sentencing laws for violations
of federal drug laws—Unequal Under Law: Race and the War on Drugs
(University of Chicago Press 2007). Dr. Provine’s current research focuses on
policies affecting unauthorized immigrants, particularly in Arizona. With two
major grants from the National Science Association, she and three co-authors have
written: Policing Immigrants: Local Law Enforcement on the Front Lines
(University of Chicago Press, Forthcoming). Dr. Provine came to Arizona in 2001
from Syracuse University to direct the School of Justice Studies at Arizona State

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University. She is currently professor emerita at Arizona State University and a
member of the board of the Arizona affiliate of the American Civil Liberties
Union, which serves as co-counsel to Plaintiff-Appellees. Her co-authorship of
this brief, however, arises out of her expertise as a scholar of immigration and
legislative intent.
Dr. Menjívar (Ph.D. U.C. Davis) is a sociologist with expertise in how law
and policy can create adverse consequences for excluded groups. She has written
widely on the situation facing women immigrant communities living under threat
of deportation and guided many doctoral students in the study of immigration
policies and their consequences. Recently, with Professor Daniel Kanstroom, she
edited a major volume on immigration and law: Constructing Immigrant
“Illegality”: Critiques, Experiences, and Responses (Cambridge University Press
2014). Dr. Menjívar has received much recognition for her contributions, and has
successfully sought major funding for her research.

She recently accepted a

position as Foundation Distinguished Professor of Sociology at the University of
Kansas after a successful career at Arizona State University.
The issues raised in this appeal are within their areas of expertise.
Defendant-Appellants claim that H.B. 2779 and H.B. 2745, the two Arizona
statutes that are the subject of this appeal, have no immigrant-related purpose. See
Opening Br. (Dkt. #28) at 14 (contending that the “Identity Theft Laws” are

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“unlike any of the previous statutes found to violate federal supremacy on
immigration” because the laws “include no reference to immigration.”). It is,
however, important to place legislation in its historical, political, and social context
to properly analyze legislative purpose.
By this brief, Amici demonstrate that the history of anti-immigrant
legislation preceding H.B. 2779 and H.B. 2745, as well as the sponsorship of these
two bills by a long-standing opponent of unauthorized immigration, reveal a
motive to make state-level immigration policy in an area preempted by federal law.
As experts in policies and practices related to unauthorized immigrants and in the
investigation of legislative intent, the Amici are uniquely positioned to offer insight
into the legislative purpose of H.B. 2779 and H.B. 2745. The perspective of the
proposed Amici should therefore be valuable to the Court.
Amici respectfully request that this Court grant leave to file the brief
submitted concurrently with this motion.
DATED this 28th day of August, 2015.
THORPE SHWER, P.C.

By s/Spencer G. Scharff
William L. Thorpe
Spencer G. Scharff
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on August 28, 2015, I electronically filed the foregoing
MOTION OF PROFESSORS DORIS MARIE PROVINE AND CECILIA
MENJÍVAR FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF
PLAINTIFF-APPELLEES, with the Clerk of the Court for the United States Court
of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify
that all participants in the case are registered CM/ECF users and that service will
be accomplished by the appellate CM/ECF system.
Dated: August 28, 2015

By s/Spencer G. Scharff
William L. Thorpe
Spencer G. Scharff
Counsel for Amici Curiae

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Nos. 15-15211, 15-15213, 15-15215
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PUENTE ARIZONA, et al.,
Plaintiff-Appellees,
vs.
JOSEPH M. ARPAIO, et al.,
Defendant-Appellants.

On Appeal from the United States District Court for the District of Arizona
Case No. 2:14-CV-01356-DCG (PHX)
Honorable David G. Campbell, District Court Judge
BRIEF OF AMICI CURIAE PROFESSORS DORIS MARIE PROVINE
AND CECILIA MENJÍVAR IN SUPPORT OF PLAINTIFF-APPELLEES

WILLIAM L. THORPE
SPENCER G. SCHARFF
THORPE SHWER, P.C.
3200 North Central Avenue, Suite 1560
Phoenix, Arizona 85012-2441
Telephone: (602) 682-6100
Facsimile: (602) 682-6149
SScharff@thorpeshwer.com
Counsel for Amici Curiae
Professors Doris Marie Provine and
Cecilia Menjívar

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned states
that the amicus is not a corporation that issues stock or has a parent corporation
that issues stock.

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STATEMENT OF COMPLIANCE WITH RULE 29(C)(5)
This brief is submitted pursuant to Rule 29(a) of the Federal Rules of
Appellate Procedure.

Counsel for Amici Curiae and Counsel for Plaintiff-

Appellees consulted with each other in the drafting of this brief; however, no party
or party’s counsel contributed money that was intended to fund preparing or
submitting the brief; and no person other than the amicus curiae, its members, or
its counsel, contributed money that was intended to fund preparing or submitting
the brief.

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TABLE OF CONTENTS
INTEREST OF THE AMICI ..................................................................................... 1
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................6
I.

H.B. 2779 and H.B. 2745 were part of a broader effort to enact
state-level immigration policy. . ...................................................................... 7

II.

The strategy of “attrition through enforcement” that became the
express immigration policy of the state of Arizona in 2010 was
in place when H.B. 2779 and H.B. 2745 were adopted. ............................... 15

CONCLUSION ........................................................................................................20

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TABLE OF AUTHORITIES
Cases
Arizona v. Inter Tribal Council of Ariz., Inc, 133 S. Ct. 2247 (2013) .....................17
Gonzalez v. Ariz., 677 F.3d 383 (9th Cir. 2012) ......................................................17
Puente Arizona v. Arpaio, 76 F. Supp. 3d 833 (D. Ariz. 2015) ..............................20
Statutes and Rules
Arizona House Bill 2154 (1996) ..............................................................................16
Arizona House Bill 2243 (2003) ................................................................................8
Arizona House Bill 2246 (2003) ..........................................................................8, 16
Arizona House Bill 2745 (2008) ....................... 2, 4, 5, 6, 7, 8, 12, 15, 16, 18, 19, 20
Arizona House Bill 2779 (2007)
(The Legal Arizona Workers Act) .......... 2, 4, 5, 6, 7, 8, 12, 15, 16, 18, 19, 20
Arizona Senate Bill 1070 (2010) .................................................................. 7, 14, 15
Proposition 100, Bailable Offenses (2006) ..............................................................10
Proposition 102, Standing in Civil Actions (2006) .............................................8, 11
Proposition 103, English as the Official Language .............................................8, 10
Proposition 200, the Arizona Taxpayer and Citizen Protection Act
(2004) ........................................................................................ 8, 9, 16, 17, 18
Proposition 300, Public Programs Eligibility ......................................................8, 10

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Other Authorities
Arizona School Boards Association, “Race, Ethnicity, Poverty Factor into the
Resegregation of Arizona’s Schools,” September 15, 2014, AZEDNEWS,
Accessed on 8/22/2015 at: http://azednews.com/2014/09/15/race-ethnicitypoverty-factor-into-the-re-segregation-of-arizonas-schools/.................passim
Celeste Gonzalez de Bustamante, “Arizona and the Making of a State of
Exclusion, 1912-2012,” pp. 19 - 42, in Arizona Firestorm: Global
Immigration Realities, National Media, and Provincial Politics, eds. Otto
Santa Ana and Celeste Gonzalez de Bustamante, Rowman & Littlefied,
2012……………………………………………………………………passim
Leo Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the
Nation, Stanford University Press, 2008………………………………passim
Chandler Davidson, Tanya Dunlap, Gale Kenny, and Benjamin Wise, “Republican
Ballot Security Programs: Vote Protection or Minority Vote Suppression Or Both?,” A Report to the Center for Voting Rights and Protection,
September 2004. Accessed on 8/22/2015 at: http://www.votelaw.com/blog/
blogdocs/GOP_Ballot_Security_Programs.pdf……………………….passim
Roxanne Doty, The Law into Their Own Hands: Immigration and the Politics of
Exceptionalism, University of Arizona Press, 2009…………………...passim
Jeremy Duda, “Ducey, Brnovich Propose $1 million for ‘Federalism Unit,”
Capitol Times, February 9, 2015, Accessed on 8/20/2015 at:
http://www.highbeam.com/doc/1P2-37668000.html.............................passim
Floyd Galloway, “Voting Rights in Arizona: Back to the Future,” New American
Media,
Nov.
4,
2014.
Accessed
on
8/10/2015
at:
http://newamericamedia.org/2014/11/voting-rights-in-arizona-back-to-thefuture.php ……………………………………………………......……passim
Rob E. Hanson, The Great Bisbee I.W.W. Deportation of July 12, 1917, Signature
Press, 1989………………………………………………………….…passim
Julianne Hing, “Joe Arpaio Launches ‘Air Posse” to Hunt Immigrants at Border,”
Colorlines News, March 30, 2011, Accessed on 8/22/2015 at:

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http://www.colorlines.com/articles/joe-arpaio-launches-air-posse-huntimmigrants-border..................................................................................passim
Alex Johnson, “Pro-English measures being revived across U.S.: Congress, states
consider new proposals to declare an ‘official language,” MSNBC, June 15,
2009, Accessed on 8/10/2015 at: http://www.nbcnews.com/id/31176525/
ns/us_news-life/t/pro-english-measures-being-revived-acrossus/#.VcaT7p1VhBc……………………………………………………passim
Cecilia Menjívar and Daniel Kanstroom (eds.) Constructing Immigrant
“Illegality”: Critiques, Experiences and Responses, Cambridge University
Press, 2014…………………………………………………...………. passim
Brian Montopoli, Where Did Jan Brewer’s Beheading Claim Come From?” CBS
News,
July
9,
2010.
Accessed
on
8/10/2015
at:
http://www.cbsnews.com/news/where-did-jan-brewers-beheading-claimcome-from/ …………………………………………………….…….. passim
Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and
Citizenship in the United States, Oxford University Press, 2006...….. passim
Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America,
Princeton University Press, 2004…………………………………….. passim
Linda C. Noel, Debating American Identity: Southwestern Statehood and Mexican
Immigration, University of Arizona Press, 2014……………………... passim
Doris Marie Provine and Gabriella Sanchez, “Suspecting Immigrants: Exploring
Links between Racialized Anxieties and Expanded Police Powers in
Arizona,” pp. 116-127 in Stop and Search: Police Power in Global Context,
Leanne Weber and Ben Bowling (eds.), Routledge, 2013………….… passim
Doris Marie Provine and Monica Varsanyi, “Immigration Federalism in the
Shifting Political Sands of Two Neighboring States,” conference paper
delivered at the 2015 annual meeting of the Law & Society Association,
Seattle, Washington, June, 2015…………………………………….. passim
Alia Beard Rau, “The Fight over State’s Rights is Back on the Ballot,” October 20,
2014,
Arizona
Republic,
Accessed
on
8/20/2015
at:

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http://www.azcentral.com/story/news/arizona/politics/2014/10/20/federalism
-state-rights-ballot/17596035/............................................................... passim
Ted Robbins, “The Man Behind Arizona’s Toughest Immigration Laws,” National
Public Radio, March 12, 2008, accessed on 8/10/2015 at:
http://www.npr.org/templates/story/story.php?storyId=88125098........passim
Marc R. Rosenblum and Leo B. Gorman, The Public Policy Implications of StateLevel Worksite Migration Enforcement: The Experiences of Arizona,
Mississippi, and Illinois, pp. 115 - 134 in Monica W. Varsanyi (ed.), Taking
Local Control: Immigration Policy Activism in U.S. Cities and States,
Stanford University Press, 2010………………………………………..19–20
Kyrsten Sinema, No Surprises: The Evolution of Anti-Immigration Legislation in
Arizona, pp. 62-88 in Charis E. Kubrin, Marjorie S. Zatz, and Ramiro
Martínez (eds.), Punishing Immigrants: Policy, Politics, and Injustice, New
York University Press, 2012………………………………………...7–16, 18
Zachary Alden Smith, Politics and Public Policy in Arizona, (3rd edn.), Praeger,
2002…………………………………………………………...……… passim
Monica W. Varsanyi, Immigration Policy Activism in the U.S, States and Cities:
Interdisciplinary Perspectives, pp. 1 - 30 in Monica W. Varsanyi (ed.),
Taking Local Control: Immigration Policy Activism in U.S. Cities and
States, Stanford University Press, 2010………………………..…….. passim

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INTEREST OF THE AMICI AND CONSENT TO FILE
Professors Doris Marie Provine and Cecilia Menjívar submit this amicus
brief in support of Appellees’ argument that the purpose and effect of the
challenged provisions in this case was to regulate immigration at the state level by
criminalizing fraud in the federal employment verification system. The professors
are experts in policies and practices related to unauthorized immigrants and in the
investigation of legislative intent.
Dr. Doris Marie Provine (J.D., Ph.D., Cornell) has written a well-received
book about Congressional intent in adopting various sentencing laws for violations
of federal drug laws—Unequal Under Law: Race and the War on Drugs
(University of Chicago Press 2007). Dr. Provine’s current research focuses on
policies affecting unauthorized immigrants, particularly in Arizona. With two
major grants from the National Science Association, she and three co-authors have
written: Policing Immigrants: Local Law Enforcement on the Front Lines
(University of Chicago Press, Forthcoming). Dr. Provine came to Arizona in 2001
from Syracuse University to direct the School of Justice Studies at Arizona State
University. She is currently professor emerita at Arizona State University and a
member of the board of the Arizona affiliate of the American Civil Liberties
Union, which serves as co-counsel to Plaintiff-Appellees. Her co-authorship of

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this brief, however, arises out of her expertise as a scholar of immigration and
legislative intent.
Dr. Menjívar (Ph.D., U.C. Davis) is a sociologist with expertise in how law
and policy can create adverse consequences for excluded groups. She has written
widely on the challenges faced by women immigrants living under threat of
deportation, and she has guided many doctoral students in the study of immigration
policies and their consequences. Recently, with Professor Daniel Kanstroom, she
edited a major volume on immigration and law: Constructing Immigrant
“Illegality”: Critiques, Experiences, and Responses (Cambridge University Press
2014). Dr. Menjívar has received much recognition for her contributions, and has
successfully sought major funding for her research.

She recently accepted a

position as Foundation Distinguished Professor of Sociology at the University of
Kansas after a successful career at Arizona State University.
By this brief, Amici demonstrate that the history of anti-immigrant
legislation preceding H.B. 2779 and H.B. 2745, as well as the sponsorship of these
two bills by a long-standing opponent of unauthorized immigration, reveal a
motive to make state-level immigration policy in an area preempted by federal law.
The preliminary injunction against enforcement of these laws as they pertain to
unauthorized immigrants, therefore, should be affirmed.

The observations

contained in this brief reflect the views of the Amici, not of the universities and

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institutions with which we are affiliated with; their academic positions are noted
solely to identify them as established scholars at research-oriented institutions.

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SUMMARY OF THE ARGUMENT
Arizona House Bill 2779 (H.B. 2779) and Arizona House Bill 2745 (H.B.
2745) reflect a long-standing legislative approach to the presence of residents who
have migrated from Mexico and Central America without legal authorization.
Discouraging unauthorized immigrants from settling in Arizona has been the
consistent goal of more than 100 bills proposed with increasing frequency over the
past fifteen years. A number of these bills have been enacted into law. The
legislation takes various forms, but often involves (1) conditioning public benefits
upon proof of legal status; (2) requiring local law enforcement personnel to
actively engage in enforcement of federal immigration law; or (3) creating
prohibitions and penalties, often involving the private sector, that are designed to
make life more difficult for those living in Arizona without legal status. H.B. 2779
and H.B. 2745 are examples of this last form.
The groundswell of immigration-related bills in Arizona is a political
response to public hostility in Arizona over the presence of unauthorized
immigrants and anger with the federal government for its perceived failure to
prevent this situation. H.B. 2779 and H.B. 2745 were aimed at appeasing this
public dissatisfaction, and laid the groundwork necessary for widely publicized
workplace raids as well as the criminal conviction and deportation of hundreds of
immigrant workers.

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Appellants argue that H.B. 2779 and H.B. 2745 are constitutional merely
because they do not mention the words “immigrant,” “alien,” “illegal resident,” or
any similar term. Nevertheless, their sponsorship by a long-time advocate of laws
to discourage unauthorized entry and residence, and the circumstances surrounding
their enactment, demonstrate that their actual goal was to make it difficult for
unauthorized immigrants to live in the state.

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ARGUMENT
Appellants claim that H.B. 2779 and H.B. 2745, the two Arizona statutes
that are the subject of this litigation, have no immigrant-related purpose. See
Opening Br. (Dkt. #28) at 14 (contending that the “Identity Theft Laws” are
“unlike any of the previous statutes found to violate federal supremacy on
immigration” because the laws “include no reference to immigration.”). The facts
suggest otherwise, beginning with the wording of the statutes, which single out
persons using false documentation “to secure employment” as a particular source
of concern. This purpose does not speak to any contemporaneous problem Arizona
had at the time of enactment concerning identity theft undertaken for financial
gain.
The fact that state law-enforcement agents immediately focused on
workplace raids to enforce the new legislation suggests they understood that the
real goal of these laws was to target unauthorized immigrants and to facilitate their
deportation, regardless of federal legislation that was already in place that
addressed the hiring of unauthorized immigrants. Circumstances surrounding the
passage of H.B. 2779 and H.B. 2745, combined with their sponsorship and
stewardship by a state legislator well-known for strident anti-immigrant advocacy
and association with anti-immigrant groups, undermines Arizona’s newlyadvanced claim that this legislation has a neutral, non-immigration-related purpose.

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These state laws were part of an evolving legislative and law-enforcement strategy
that culminated two years later in S.B. 1070, when “attrition through enforcement”
became the express policy of the State of Arizona toward undocumented
immigrants.
I.

H.B. 2779 AND H.B. 2745 WERE PART OF A BROADER EFFORT
TO ENACT STATE-LEVEL IMMIGRATION POLICY.
Between 2003 and 2011, a handful of Arizona legislators introduced over

100 bills focused on unauthorized immigrants living in Arizona. See Kyrsten
Sinema, No Surprises: The Evolution of Anti-Immigration Legislation in Arizona,
in PUNISHING IMMIGRANTS: POLICY, POLITICS, AND INJUSTICE 85 (Charis E. Kubrin,
Marjorie S. Zatz, and Ramiro Martínez eds., 2012) (hereinafter Punishing
Immigrants). They covered a broad range of topics, including access to stateprovided housing, education, and health benefits, local enforcement of federal
immigration law, access to damages in the courts, voting, availability of
workman’s compensation and bail, trespass, day labor sites, sanctuary cities,
professional licensing, and other matters.

Each of these bills, however, was

designed for a singular purpose—to make living and working in Arizona more
difficult for persons lacking legal status.
Table 1 provides a sampling of these proposals. As this table indicates,
many of these bills stalled in the legislative process, but as public support grew
against unauthorized immigration, so too did their prospects for passage. The

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approval by 56% of the voters of Proposition 200, a 2004 state-wide initiative
requiring proof of citizenship to vote and legal status to receive public benefits
represents an important tipping point, as evidenced by three subsequent initiatives
directed at unauthorized immigrants passed in 2006—Propositions 102, 103, and
300. Each of the 2006 propositions received over 70% support of the voters. H.B.
2779 and H.B. 2745, passed in the two years following the 2006 initiatives and
highlighted in bold in the table below, exemplify the legislative response to this
voter mandate.
TABLE 1
Immigration-Related Bills, 2003-20111
2003
BILL #
2246
2243

SUMMARY

PRIMARY OUTCOME
SPONSOR
Proof of Citizenship to Vote
Pearce
Failed in
Committee
Requiring Emergency Medical Personnel to Pearce
Not Heard
Report Suspected Undocumented Immigrants;
Authorizing Local Law Enforcement to
Enforce
Federal
Immigration
Laws;
Prohibiting Undocumented Immigrations to
Enroll in Public Universities; Requiring All
Public Agencies to Report Suspected
Undocumented Immigrants; Authorizing Local

1

This table does not identify all of the 100-plus immigration-related bills
introduced in the Arizona legislature during this time period; rather, it covers a
sampling in attempts to provide a broader picture of the types of legislation
introduced. The table is largely based on the Appendix in Sinema, Punishing
Immigrants at 78–85.

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Law Enforcement to Enforce Federal
Immigration Laws in Connection with All
Arrests
2004
BILL #
Prop.
200

2248

SUMMARY

PRIMARY OUTCOME
SPONSOR
Requiring Proof of Citizenship to Register to
Adopted
Vote, an ID to Receive a Ballot, Proof of
with 56% of
Citizenship to Receive Public Benefits, and
the Vote
Agencies to Report Suspected Undocumented
Immigrants
Authorizing the Arizona Attorney General to Pearce
Held in
Suspend Business Licenses for 6 Months for
Committee
Violations
of
Federal
Immigration
Employment Laws
2005

BILL #
2394
2395

2030

2030

2259

2709

SUMMARY

PRIMARY OUTCOME
SPONSOR
Requiring Report Undocumented State Pearce
Not Heard
Medicaid Applicants to Federal Authorities
Requiring State Department of Economic Pearce
Not Heard
Security to Verify Immigration Status of All
Applicants
Prohibiting Undocumented Students from Nichols
Passed, but
Receiving In-State Tuition or Scholarships at
Vetoed
Public Universities; Requiring Proof of Legal
Status for Adult Education and Family
Assistance Programs
Constitutional Amendment Making English Pearce
Passed
Arizona’s Official Language.
House, Held
in Senate
Imposing Longer Sentences for Violations of Gray
Enacted
Federal Immigration Laws and Adding Five
Immigration-Related “Aggravating Factors”
Building a Private Prison in Mexico for Jones
Passed, but
Mexican Nationals Convicted in Arizona
Vetoed

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2389

No Bail for Undocumented Immigrations
Charged with Class 1, 2, or 3 Felonies
(Referred to November 2005 Ballot)

2028/
Prop.
100
2384

Constitutional Amendment Outlawing Bail for Pearce
Serious Felons without Legal Status
Pearce

Passed
House and
Senate
Committee
Adopted
with 78% of
the Vote
Not Heard

2592

Rosati

Enacted

Pearce,
Johnson

Initially No
Hearing,
then Passed,
but Vetoed

2386,
1306

Imposing Additional Sanctions on Businesses
Sanctioned by Federal Authorities for Hiring
Undocumented Immigrants
Prohibiting Day Labor Centers from Assisting
Undocumented Immigrants
Authorizing Local Law Enforcement to
Apprehend and Remove Undocumented
Immigrants from U.S. (OK to cross state lines)

Pearce

2006
BILL #
2448

2068/9
1031/
Prop.
300

2036/
Prop.
103
2761
1057

SUMMARY

PRIMARY
SPONSOR
Requiring State Medicaid to Verify Citizenship Burges
Status of Applicants and Report Violations to
Federal Immigration Authorities
Prohibiting Undocumented Students from Gray
Receiving In-State Tuition or Financial Aid
Prohibiting Undocumented Immigrants from Martin
Receiving State-Assisted Adult Education and
Childcare, In-State Tuition, and Financial Aid;
Requiring Annual Reports to Legislature on
Undocumented Applicants
Adopting English as Arizona’s Official Pearce
Language; Providing Private Right of Action
Building a Private Prison in Mexico for Jones
Mexican Nationals Convicted in Arizona
Stripping Undocumented Immigrants of Huppenthal
Standing to File Civil Suits, Except for Actual
Damages

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OUTCOME
Enacted

Not Heard
Adopted
with 71% of
the Vote

Adopted
with 74% of
the Vote
Passed, then
Held
Held in
House

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1001/
Prop.
102
2044

2582

1157

2071

2837
2577

Prohibiting Undocumented Immigrants from Huppenthal
Obtaining Punitive Damages in Lawsuits
Establishing Immigration-Related Employer
Sanctions (Fines, License Revocation, and
Criminal Sanctions)
Authorizing Local Law Enforcement to
Investigate, Apprehend, Detain, or Remove
Undocumented Immigrants.
Creating State Crime of Trespassing;
Establishing First Offence of Unlawful
Presence as a Misdemeanor, and Subsequent
Offenses as a Felony
Authorizing Local Law Enforcement to
Question Detained Suspected Criminals
Regarding Immigration Status
Stripping Local Governments Adopting
“Sanctuary” Policies of State-Shared Revenues
Requiring Local Law Enforcement to Enforce
Federal Immigration Laws; Denying Punitive
Damage
Awards
to
Undocumented
Immigrants; Creating a State Crime of
Trespassing; Denying Adult Education,
Childcare Assistance, and Tuition Assistance to
Undocumented
Immigrants;
Establishing
Immigration-Related Employer Sanctions;
Creating Border Enforcement Security Team;
Appropriating Funds for Border Security

Pearce

Pearce

Gray

Adopted
with 74% of
the Vote
Passed in
House, Held
in Senate
Passed in
House, Held
in Senate
Passed, but
Vetoed

Gray

Not Heard

Pearce

Failed in
Final House
Passed, but
Vetoed

Pearce

2007
BILL #
2471

SUMMARY

PRIMARY OUTCOME
SPONSOR
Prohibiting Undocumented Immigrants from Pearce
Not Heard
Receiving Public Benefits, Including Access to
K-12 and Higher Education, Grants, Loans,
Professional Licenses and Employment,
Retirement Benefits, Public Welfare Benefits,
Healthcare, Public Housing, and Disability
Benefits

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2779
2589
2022

2461

2751

2049

Pearce
Legal Arizona Workers Act
Criminalizing Soliciting Employment or Labor Kavanagh
in Certain Locations
Prohibiting Undocumented Immigrants from Pearce
Entering Private or Public Land
Requiring Local Law Enforcement to Inquire Pearce
into Legal Status of Detained Criminal
Suspects
Requiring Local Law Enforcement to Comply Pearce
with and Enforce Federal Immigration Laws

Proposing Ballot Referendum Requiring Local Pearce
Law Enforcement to Comply with and Enforce
Federal Immigration Laws

Enacted
Passed, but
Vetoed
Passed
Committee,
then Held
Not Heard

Passed Three
House
Committees,
then Held
Passed
House
Committee,
then Held

2008
BILL #
2043

2745
2750
2412

2039

2625

SUMMARY

PRIMARY OUTCOME
SPONSOR
Proposing Ballot Referendum that Would Pearce
Not Heard
Prohibit Public Education Without Proof of
Legal Status
Enacted
Adjustments to H.B. 2779 (Legal Arizona Pearce
Workers Act)
Prohibiting Undocumented Immigrations from Pearce
Not Heard
Receiving Workman’s Compensation
Redefining Criminal Trespass to Include Kavanagh Passed
Knowingly Standing on a Public Street,
House,
Highway, or Adjacent Areas for the Purpose of
Failed in
Soliciting Employment
Senate
Proposing Ballot Referendum Requiring Local Pearce
Passed
Law Enforcement to Comply with and Enforce
House
Federal Immigration Laws and Prohibiting
Committee,
Undocumented Immigrants from Entering
then Held
Private or Public Land
Prohibiting Landlords from Knowingly and Pearce
Passed
Recklessly Renting or Leasing any Property or
House

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Dwelling to Undocumented Immigrants
2807

2064

Requiring Local Law Enforcement to Train Nelson
Officers in Federal Immigration Laws, or to
Imbed ICE Officers in the Police Force
Proposing Ballot Referendum for H.R. 2807
Nelson

Committee,
the Held
Passed, but
Vetoed
Passed
House
Committee,
the Held

2009
BILL #
1172

1334
1177
2533

2280

1159/
1010

2331

SUMMARY

PRIMARY OUTCOME
SPONSOR
Requires Department of Education to Collect Pearce
Not Heard
Population Data of Undocumented Students
and Estimate Cost of Educating Undocumented
Students; Authorizing Superintendent to
Withhold Funds for Non-Compliance
Prohibiting Undocumented Immigrations from Pearce
Not Heard
Receiving Workman’s Compensation
Prohibiting Undocumented Immigrations from Pearce
Not Heard
Applying for Work or Working
Criminalizing
the
Act
of
Soliciting Kavanagh Passed
Employment from an Individual in a Motor
House, Held
Vehicle While Standing on Street, Highway, or
in Senate
Sidewalk
Requiring Local Law Enforcement to Enforce Kavanagh Passed
Federal Immigration Laws and Prohibiting
House and
Undocumented Immigrants from Entering
Senate,
Private or Public Land
Failed on
Final Read
Creating State Crime of Trespassing that Pearce
Not Heard
Imposed Civil and Criminal Penalties on
Undocumented Immigrants who Entered or
Remained on Private or Public Land
Prohibiting Local Governments from Enacting Boone
Passed
Ordinances that Prohibited Enforcement of
House, Held
Federal Immigration Laws
in Senate

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2010
BILL #
1097

1070

2162

SUMMARY

PRIMARY OUTCOME
SPONSOR
Requires Department of Education to Collect Pearce
Passed
Population Data of Undocumented Students
Senate, Held
and Estimate Cost of Educating Undocumented
in House
Students; Authorizing Superintendent to
Withhold Funds for Non-Compliance
Creating State Penalties Relating to Pearce
Enacted
Immigration Law Enforcement Including
Trespassing, Harboring and Transporting
Undocumented Immigrants, Alien Registration
Documents, Employer Sanctions, and Human
Smuggling.
Adjustments to S.B. 1070
Nichols
Enacted
2011

BILL #
1308/
1309

1222
1405

1407

2191
1490
2102

SUMMARY

PRIMARY OUTCOME
SPONSOR
Limiting Arizona Citizenship to Individuals Gould
Failed in
Born in the U.S. to Parents Who Are Citizens
Senate
or Legal Permanent Residents; Precluding the
U.S. Constitution’s Fourteenth Amendment
From Applying to Children of Undocumented
Immigrants
Conditioning HUD-Funded Public Housing on Biggs
Passed Senate,
Demonstrating Lawful Presence
Held in House
Requiring Hospitals to Determine Citizenship Smith
Failed in
Status of Patients and to Notify Immigration
Senate
Authorities of Undocumented Immigrants
Requires Department of Education to Collect Smith
Failed in
Population Data of Undocumented Students
Senate
and Estimate Cost of Their Education
Retroactively Denying Punitive Damage Weiers
Enacted
Awards to Undocumented Immigrants
Prohibits counties from issuing food handler’s Gould
Passed Senate,
cards without proof of legal status
held in House
Prohibiting the Issuance of a License, Kavanagh Enacted
Fingerprint Clearance Card, or Any State
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Identification to Undocumented Immigrants
1117/
2537
1611

Permitting House and Senate Leaders to Pearce/
Participate in S.B. 1070 Litigation Without Adams
Seeking Authorization from the Legislature
Omnibus Legislation Combining a Number of Pearce
Former Pearce-Sponsored Bills from 2006 to
2010 and Adding New Restrictive Immigration
Measures; Restricting Eligibility of Federal,
State, and Local Benefits; Prohibiting
Undocumented Immigrations from Operating
Motor Vehicles, Enrolling in K-12 and Higher
Education; Expanding E-Verify Program to All
Arizona Employers

Enacted

Failed in
Senate

Table 1 demonstrates that the broader effort to enact state-level immigration
policy began as a drive by Representative, and later Senator, Russell Pearce. It
also shows that with time he convinced others to join his cause. The proposals
themselves range from areas reserved for state policy—eligibility for tuition at
state-supported institutions of higher education—to matters reserved exclusively
by the federal government—the creation of immigration-related crimes. H.B. 2779
and H.B. 2745 exemplify the latter.
II.

THE STRATEGY OF “ATTRITION THROUGH ENFORCEMENT”
THAT BECAME THE EXPRESS IMMIGRATION POLICY OF THE
STATE OF ARIZONA IN 2010 WAS IN PLACE WHEN H.B. 2779
AND H.B. 2745 WERE ADOPTED.
Russell Pearce, the man whose name is most frequently associated with

“attrition through enforcement” because of his sponsorship of S.B. 1070 in 2010,
has a long record of policy proposals that aim at unauthorized immigrants.

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H.B. 2779 and H.B. 2745, both of which he sponsored, are relative latecomers in
this line of bills.
Pearce began promoting various methods of “attrition through enforcement”
when he became director of the Arizona Motor Vehicle Department in 1995. From
that vantage point, he drafted H.B. 2154, a law that would for the first time require
legal status to obtain a driver’s license. Elected four years later to the Arizona
House of Representatives, Pearce began to promote “attrition through
enforcement” during his second two-year term. He introduced two restrictive laws
in 2003, neither of which moved forward.
From this point on, Pearce appears to have made immigration the
centerpiece of his activity. After a series of legislative defeats in 2003, including
the failure to get H.B. 2246—a bill requiring proof of citizenship to vote—out of
committee, Pearce began working with outside groups to take his issues directly
the voters via ballot referendums.

Sinema, Punishing Immigrants, at 62–63.

These efforts culminated in the passage of Proposition 200, the “Arizona Taxpayer
and Citizen Protection Act,” which appeared on the November 2004 ballot.
Section 2 of Proposition 200, entitled “Findings and declaration,” provided that:
This state finds that illegal immigration is causing economic hardship
to this state and that illegal immigration is encouraged by public
agencies within this state that provide public benefits without
verifying immigration status. This state further finds that illegal
immigrants have been given a safe haven in this state with the aid of
identification cards that are issued without verifying immigration

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status, and that this conduct contradicts federal immigration policy,
undermines the security of our borders and demeans the value of
citizenship. Therefore, the people of this state declare that the public
interest of this state requires all public agencies within this state to
cooperate with federal immigration authorities to discourage illegal
immigration.2
Proposition 200 represented the first significant victory for such efforts and
ultimately changed Arizona’s political and legislative landscape.3
Polls taken in the ensuing months reflected the political momentum behind
anti-immigrant measures.

An October 2005 poll conducted by the Arizona

Republic revealed antipathy for unauthorized immigrants and pessimism about the
current success of the federal government in securing the border. Nearly six in ten
called unauthorized immigration an “extremely” high priority in an August 2006
survey of likely voters. Nearly two thirds of these respondents stated that illegal
immigration hurt the state more than helped it and most opined that the issue of
enforcement was too important to leave to the federal government alone.
These attitudes were reflected in the passage of three anti-immigrant
referenda in 2006.

Congresswoman Kyrsten Sinema, who was a state

2

Text of Proposition 200 (2004), available at http://apps.azsos.gov/election/2004/Info/PubPamphlet/english/prop200.pdf (last visited Aug. 28, 2015).
3

In 2013, the Supreme Court held that the provision of Proposition 200 that
required voters to provide proof of citizenship when registering to vote or casting a
ballot was preempted by the National Voter Registration Act of 1993. Arizona v.
Inter Tribal Council of Ariz., Inc, 133 S. Ct. 2247 (2013) (affirming Gonzalez v.
Ariz., 677 F.3d 383 (9th Cir. 2012) (en banc)).

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representative at the time, attributed the support for H.B. 2779 to the outcome of
the November 2006 election, with its strong voter endorsement of the three antiimmigrant referenda:
After the 2006 election, the Legislature saw the increasing popularity
of anti-immigration legislation in Arizona and forged ahead. By the
time, it was clear to the Legislature that the public supported antiimmigrant measures, at least when presented with no clear sign of any
positive solutions to the growing immigration crisis Arizona was
experiencing. As such, the political pressure to approve antiimmigrant measures increased exponentially, with Republicans, in
particular, concerned about primary election challenges from the right
as political payback for failure to support these measures. With
growing public pressure to “do something” about immigration and
thinly veiled threats from the political right about repercussions for
those who opposed anti-immigrant measures, most legislative
Republicans began voting for Pearce’s measures.
Sinema, Punishing Immigrants, at 68. Proposition 200, the three 2006 ballot
referendums, and the general anti-immigrant political environment provided
momentum for H.B. 2779, the “Legal Arizona Workers Act,” and H.B. 2745, its
2008 companion legislation.
The power of the movement to discourage unauthorized immigrants from
living in the state can be gauged, in part, by the inability of the Arizona business
community to block the Legal Arizona Workers Act. The concern of business
leaders was that this new law would weaken the state’s economy. See Marc R.
Rosenblum and Leo B. Gorman, The Public Policy Implications of State-Level
Worksite Migration Enforcement: The Experiences of Arizona, Mississippi, and

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Illinois, in TAKING LOCAL CONTROL: IMMIGRATION POLICY ACTIVISM
CITIES

AND

IN

U.S.

STATES 121 (Monica W. Varsanyi ed., 2010) (hereinafter State-Level

Worksite Migration Enforcement). These factors appear to have been ignored in
the rush to support H.B. 2779, which passed both houses of the legislature by fourto-one margins. Id.
These laws were unambiguously aimed at unauthorized immigrants. While
they impose a series of potentially escalating civil penalties on employers who
knowingly hire unauthorized immigrants, they imposed much harsher penalties on
the immigrant employees they hire, criminalizing applicants who use false
documentation to gain employment. At the same time, Arizona was also implicitly
challenging the federal government’s long-time approach to employment by
unauthorized immigrants.
In 2007 and 2008, elected officials, faced with the polling results mentioned
above, supported H.B. 2779 and H.B. 2745, overcoming any doubts they may have
had about the legitimacy of occupying the federal domain in immigration policy.
In this respect they had the support of Arizona voters, who, the polling data
suggests, saw no problem with granting the state significant immigration
enforcement responsibilities. The idea that Arizona must step in where the federal
government has failed to act was a major selling point for H.B. 2779. In fact, cosponsor Representative John Kavanagh contended that that “People want a

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crackdown.”

Rosenblum and Gorman, State-Level Worksite Migration

Enforcement, at 121.

Then-Governor Napolitano justified her signature

authorizing the bill by citing the apparent inability of Congress to address state
immigration needs. Indeed, the District Court’s Preliminary Injunction Order aptly
cited to statements made by Governor Napolitano and members of the legislature
that clearly evidence the intent of the drafters and supports of these bills:
Senator O’Halleran stated that people convicted under the identity
theft law would be encouraged to “self-deport” instead of serving long
prison sentences. Doc. 30-3 at 45. Senator Robert Burns supported
H.B. 2779 because it would show that Arizona was tough on illegal
immigration. Id. at 42. . . . When signing H.B. 2779 into law,
Governor Napolitano noted that a “state like Arizona [has] no choice
but to take strong action to discourage the further flow of illegal
immigration through our borders.”
Puente Arizona v. Arpaio, 76 F. Supp. 3d 833 (D. Ariz. 2015).
CONCLUSION
It is important to place legislation in its historical, political, and social
context to properly analyze legislative purpose. The history of anti-immigrant
legislation preceding H.B. 2779 and H.B. 2745, and the sponsorship of these two
bills by a long-standing opponent of unauthorized immigration in Arizona, reveal a
motive to make state-level immigration policy in an area preempted by federal law.
The preliminary injunction against enforcement of these laws as they pertain to
unauthorized immigrants therefore should be affirmed.

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DATED this 28th day of August, 2015.
THORPE SHWER, P.C.

By s/Spencer G. Scharff
William L. Thorpe
Spencer G. Scharff
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that
this brief complies with the typeface requirements of Rule 32(a)(5) and (6),
because it is written in 14-pt Times New Roman font, and with the type-volume
limitations of Rules 28.1(e)(2)(B) and 29(d), because it contains 4,068 words,
excluding the portions excluded under Rule 32(a)(7)(A)(iii). This count is based
on the word-count feature of Microsoft Word 2013.

Dated: August 28, 2015

By s/Spencer G. Scharff
William L. Thorpe
Spencer G. Scharff
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE
I hereby certify that on August 28, 2015, I electronically filed the foregoing
BRIEF OF AMICI CURIAE PROFESSORS DORIS MARIE PROVINE AND
CECILIA MENJÍVAR, with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that
all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.

Dated: August 28, 2015

By s/Spencer G. Scharff
William L. Thorpe
Spencer G. Scharff
Counsel for Amici Curiae

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