An Arizona law that prohibits employers from knowingly hiring illegal immigrants is facing a possible overhaul before any businesses have even been called into court for alleged violations.
A proposal on the Nov. 4 ballot asks voters to revise the nine-month-old employer sanctions law by making changes that supporters say will protect honest businesses and that immigration hard-liners say will weaken a powerful tool against illegal immigration.
The proposed changes include tightening a rule on reporting violations, raising the standard for proving cases and strengthening a legal protection for those who follow the law.
"The current law has gaping holes in it," said Andrew Pacheco, leader of the campaign for Proposition 202, explaining that the law now applies to only licensed businesses and that his proposal would change that.
Maricopa County Andrew Thomas, who has made combating illegal immigration a top priority in his office, said such new rules would make it nearly impossible to bring employer sanctions cases. "Prop. 202 is a fraud on the voters," Thomas said.
The original law, which was intended to lessen economic incentives for immigrant workers to sneak across the border, has brought a chorus of criticism from businesses.
Under the law that took effect Jan. 1, employers who are found to have knowingly made illegal hires face the suspension or revocation of their business licenses. Businesses also are required to verify the employment eligibility of new workers through a federal database.
While prosecutors have yet to file cases against any businesses, the law is credited, in part, with prompting countless illegal immigrants to leave Arizona for other American states or their homelands.
Business and civil rights groups have filed a lawsuit in a bid to overturn the law, but two courts have upheld it.
During the spring, lawmakers amended the law in response to complaints about its shortcomings. Some of the Legislature's revisions were similar to a few parts of Proposition 202.
The common provisions include making the crime of identity theft cover employers who knowingly accept false identification when hiring and imposing penalties for hiring illegal immigrants on a cash-only basis.
Though they supported such provisions, defenders of the law oppose other parts of the ballot proposal.
While critics of the law say businesses are vulnerable to anonymous allegations from competitors and disgruntled employees, the ballot measure would require that complaints of illegal hirings be signed and made in writing.
On another point, the measure would retain the database requirement, but also give employers the option of meeting the requirement instead by completing an employment document already required under federal law.
The state's employer sanction law provides a measure of legal protection for employers who use the database. The ballot measure would make the protection stronger for those who meet the database or federal employment document requirements.
The proposal also would raise the standard for proving cases by requiring prosecutors to show that company officials had "actual knowledge" of illegal hirings. The current standard is "constructive knowledge," meaning knowledge that's based on inferences drawn from evidence.
Recent poll results don't bode well for opponents of the ballot measure. A survey by Arizona State University found that nearly two-thirds of voters supported it.
"I don't think the average guy we are polling out there has that much information about it," said pollster Bruce Merrill, who was in charge of the survey. "They basically see it as a bill that's trying to do something about immigration."
Backers of the ballot proposal enjoy a strong advantage in fundraising, too.
The opposing committee has raised $741,000 since beginning its campaign. Nearly all of its contributions have come from businesses, including the Arizona Farm Bureau, the Southern Arizona Home Builders Association and a business group that has sought to overturn the law in court.
A political committee set up by opponents of the ballot measure has gathered no money, according to campaign finance records covering the reporting period ending on Sept. 22.
State Rep. Russell Pearce of Mesa, the author of the original law, said opponents of the new ballot measure started their fundraising efforts late and hoped to get enough money to run radio ads and make automated phone calls.
An advantage that border hard-liners enjoyed in past ballot campaigns could work against them this time: voter frustration with Arizona's border woes, which was cited as a key factor in approving immigration proposals in 2004 and 2006.
Pearce acknowledged the disadvantage that opponents face, but said it's not an insurmountable problem. "If they know the truth, they are clearly against it," Pearce said.
Pacheco said his campaign's proposal won't weaken the law, but rather would zero in on unscrupulous employers and ensure that honest employers, and the people who work for them, aren't put out of business because of flaws in the law. "We are trying to focus on the bad actors," Pacheco said.