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SCOTUS Immigration Ruling and the Hispanic Vote

Arizona Governor Jan Brewer meeting with President Barack Obama in June 2010 in the wake of SB 1070.

Arizona Governor Jan Brewer meeting with President Barack Obama in June 2010 in the wake of SB 1070, to discuss immigration and border security issues. Official White House Photo by Pete Souza.

Yesterday, the Supreme Court handed down its decision in Arizona vs. United States, the 2010 Arizona immigration law (S.B. 1070). With a 5-3 vote, the Court upheld the most hotly contested provision of the law – the so-called “show me your papers” provision – but blocked other provisions on the grounds that they preempted the federal government’s role in setting immigration policy. In the majority opinion, Justice Anthony M. Kennedy said:

“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.”

The majority emphasized two points regarding the federal-state dividing line over immigration law authority. First, it is “fundamental” that foreign countries be able to communicate with a “single sovereign,” the federal government, about immigration issues. Second, the federal government should have “broad discretion” in deciding whether and how to enforce immigration laws.

Justices Antonin Scalia, Clarence Thomas and Samuel Alito agreed with the majority that “show me your papers” provision was not preempted by federal law and could go into effect. However, they dissented from the majority on other provisions. In his dissent from the majority opinion, Justice Scalia argued that the states should have the right to make immigration policy if the federal government is not enforcing its own policies.

The presidential candidates’ responses to the ruling made clear a partisan divide over how authority to set immigration law should be divided between the federal, state and local governments. President Obama said that the ruling demonstrates that Congress must enact comprehensive immigration reform. According to President Obama, “A patchwork of state laws is not a solution to our broken immigration system – it’s part of the problem.” President Obama also agreed with the Court that individuals cannot be detained solely to verify their immigration status:

“No American should ever live under a cloud of suspicion just because of what they look like.”

The Obama administration also announced that it will not assist Arizona's efforts to arrest undocumented people unless those immigrants meet federal government criteria. Furthermore, it is rescinding agreements that allow some Arizona law enforcement officers to enforce federal immigration laws.

In response to the ruling Mitt Romney said that America’s immigration laws have “become a muddle.” At a campaign fundraiser in Arizona that raised $2 million yesterday, Romney told donors:

“I would have preferred to see the Supreme Court give more latitude to states, not less. And the states, now under this decision, have less authority, less latitude, to enforce immigration law.”

Romney did not endorse the Arizona law during the primaries and has attempted to soften his position on immigration to appeal to Hispanic voters. But yesterday, he called the Arizona law “a model” and said that “the right course for America is to drop these lawsuits against Arizona and other states that are trying to do the job Barack Obama isn't doing.”

So what impact will the Court’s ruling have in the presidential election? The ruling is not just about states versus federal authority in making and enforcing immigration policy; it’s also about immigrant rights. Many pundits are calling the ruling a victory for Obama, and bad for Romney (at least in the short term) and the Hispanic community. Some argue that Romney is stuck between a rock and a hard place – if he criticizes the ruling, he will isolate elements of the conservative base. However, if he supports it, he will face even more difficulty in attempts to court Hispanic voters. Immigration reform is certainly an important issue for many in the Hispanic community. However, calling the ruling bad for Romney neglects the fact that immigration reform is not the highest priority for electorate in this election, even among Hispanic voters. Rather, it’s the economy. Over the long term, though, Republicans will have to contend with divisions in their party coalition on immigration policy.

A broader and perhaps more important point to make is that while the Democratic Party has generally held the advantage among Hispanic voters since President Nixon created the check-box on the census form in 1970, neither party “owns” the Hispanic vote. Furthermore, both parties have equally vied to woo Hispanic voters in modern elections. Contemporary campaigns of both parties have used targeted Spanish language ads (see here and here for recent 2012 examples), Spanish language materials, candidate endorsements by well-known Latinos and targeted mobilization of voters with Spanish surnames in order to mobilize and engage voters. President Ronald Reagan believed in his 1984 reelection campaign that, based on their social conservatism, “Hispanics are already Republican, they just don’t know it yet.” Reagan received 40 percent of the Hispanic vote in the landslide victory over Mondale. Twenty years later, George W. Bush did even better, receiving 44 percent of the Hispanic vote. However, in the 2006 election, Hispanic voters gave Democratic candidates nearly 70 percent of their votes. And in 2008, the Hispanic vote was essential to Barak Obama’s winning coalition; Obama received 67 percent of the Hispanic vote, compared to John McCain’s 31 percent.

Furthermore, Hispanic voters are not a monolithic entity, nor should they be treated as such by either party. While Matt Barretto provides some evidence that there is a latent group consciousness among Latino voters that can be activated, Cristina Beltrán has questioned the conventional wisdom of a coherent Latino political agenda and documented distinctive ways in which Latinos have forged both shared and distinctive perspectives. As Republican Latina political pundit Leslie Sanchez has argued:

“The days of only understanding us in terms of Spanish language and our degree of acculturation are long gone…We are the next genuine swing vote.” 

Immigration policy will continue to be an ongoing source of political contestation even after Supreme Court’s ruling in Arizona vs. United States fades away from the media spotlight. It is also possible that immigration policy may increasingly be polarized along party lines. While both parties generally agree that comprehensive immigration reform is needed, there are competing visions of the forms it might take. Republicans and Democrats alike seem to recognize the growing importance of Hispanic voters. While the parties continue to compete for Hispanic votes, they will also have to demonstrate a serious commitment to achieving the policy priorities of that constituency.

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