Legal Commentary

Kevin Johnson and I wrote an op-ed in the Washington Post reflecting our surprise that anyone who has read SB1070, Arizona's new immigration law, and is familiar with the relevant cases, would read it to prohibit racial profiling when it clearly allows for it.  SB1070 provides that law enforcement officers ?may not consider race, color or national origin  . . . except to the extent permitted by the United States or Arizona Constitution.? (italics added)  A.R.S. 11-1051(B) (e.g., p. 1, lines 32-36; the language also appears elsewhere, e.g., A.R.S. 13-1509(C), p. 4, lines 1-4).  The exception invokes the Supreme Court holding that "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in evaluating reasonable suspicion under the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).  Arizona courts agree that "enforcement of immigration laws often involves a relevant consideration of ethnic factors." State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982).  That the exception is in SB1070 when it could have been omitted seems to preclude a claim that SB1070's policy is not to consider race.

So how can UMKC Law Prof Kris Kobach, a principal drafter of SB1070, argue that "S.B. 1070 expressly prohibits racial profiling"?  By misquoting it. He simply omits the key language.  He writes:

In four different sections, the law reiterates that a law-enforcement official "may not consider race, color or national origin" in making any stops or determining an alien's immigration status.

Kris W. Kobach, Defending Arizona, National Review, June 7, 2010, at 31, column 2, para. 2 of the PDF on his website, or on line. The critical exception is not included the description of the statute, thereby implying that a law that adopts Brignoni-Ponce instead rejects it.  Arizona's Governor, certain legislators and perhaps others who also mistakenly claim that SB1070 prohibits racial profiling may well have relied on the expert opinion of a professor-drafter for the meaning of complex terms.  This mistake may be at the root of widespread misunderstanding about SB1070.

Undoubtedly, the misleading quotation reflects Prof. Kobach's honest recollection of the law, and is what he expected to be enacted into law.  If so, it should be simple to arrange for his clients to announce that this error will be corrected.  On the other hand, on the off chance that the law was actually intended to codify rather than repudiate Brignoni-Ponce and Graciano, it would be candid for those involved to acknowledge that.