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What the Devil won't tell you

Tucson's 'Sanctuary City' backers fall for lawsuit trap

It’s prime time in the city election season and Tucson voters — to the degree that they ever will — are paying attention right now.

This is the moment to get your message out, if you are a candidate or running a campaign for a ballot question. It’s time to understand the rules as they are, bend them if need be and beat the other side.

It is not a time to sue and it’s definitely not a time to sue a bunch of city staffers and change the subject away from your raison d'etre.

The backers of the sanctuary city initiative, under the name People's Defense Initiative, have sued in Pima County Superior Court to stop top city staff and Councilman Steve Kozachik from "electioneering" against the ballot question.

City Manager Mike Ortega, Police Chief Chris Magnus and City Attorney Mike Rankin crafted a memo in Q&A form outlining what can only be described as their take on the risks of passing Prop. 205.

If "electioneering" is what they did, that would violate state law. On the other hand, suing over it violates the first rule of political campaigns: "Keep the eyes off your opponents' message." 

Lawyers like winning in court and sometimes can confuse that with winning in public. It's very often not the same thing — hence, lawyer jokes. Activists like fighting City Hall and can miss the importance of winning hearts and minds. Prop. 205's campaign is being led by attorney Joel Feinman and activist Zaira Livier, who've put the public's attention squarely on their opponents' objections instead of making their own case for voting "yes." We in the press can't report on their lawsuit without telling you the things they're suing over.

There's a term for what happens when you sue over information that you don't like being distributed: the "Streisand Effect." Almost inevitably, you draw more attention to it, and even give it legitimacy.

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To change minds

The ballot initiative would set up limits how Tucson police can operate in enforcing federal immigration policy, and limit them from working with the feds at all without a signed and sealed written agreement with each agency. Rather than avoid the red-hot term “sanctuary,” the organizers chose to embrace it. OK, fine. Go win the argument.

Polls have shown voters empathize with undocumented migrants and want them to have a path to legal status. Yet Arizona’s famous/infamous immigration law known has SB 1070 has always been popular because it insists local cops take part in federal immigration enforcement. Prop. 205 is a political reaction against the nine-year-old law. But voters also aren't sanctuary city fans, so how much they'll support any given measure depends on how the argument is cast.

Changing minds is doable with a consistent argument that gets to the nub of the issue. America’s immigration laws are a kin to prohibition of the free market because they ignore unmet demand for labor with overwrought regulation of the labor market. These laws also criminalize the entire American Experiment – itself a wager on humankind — in a fit of xenophobic panic.

One doesn’t even have to go that far to win the fight. 

Viz.: "Opponents of Prop. 205 are pro-murder and pro-rape because they prefer to deport witnesses to solving crime. So opponents of Prop. 205 are clearly soft on crime." (Or so one possible argument goes). 

Use the proven tricks of the Right against them. 

However, in the final minutes of the campaign, Tucson Families Free and Together are arguing “the city has violated ARS 9-500.14." I don't think that's a winning case.

A gift to the opposition

What’s more, it forces the No Team's message into the public discourse at the expense of the "yes" message.

Sure, a suit will get news coverage but here's how that will play out: The first thing that a reporter will ask is “why did you sue?” Lawyers and organizers then explain how they allege the city broke electioneering laws by providing information to the public that would tip the scales of public opinion against it. That’s illegal.

Yes it is. Maybe. Sometimes. City staff can’t use public resources to electioneer — to intentionally try to sway voters. But the press has had no choice but to lay out the city officials' warnings and compare them to the law. That's just free advertising for "No" and loads of it.

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Prop. 205's message of social justice has been reduced to “the city is being mean to us by saying this law is bad for Tucson.”

A voter can conclude both are true. The city are assholes and your ballot measure sucks. Supporters of Prop. 205 can win a legal challenge and lose at the ballot box.

So stop kicking their story down the street.

Of course they did it

Did the city electioneer? Oh, I have no doubt that they did it in practice.

The lawsuit invokes a state law that reads like this:

A. A city or town shall not spend or use its resources, including the use or expenditure of monies, accounts, credit, facilities, vehicles, postage, telecommunications, computer hardware and software, web pages, personnel, equipment, materials, buildings or any other thing of value of the city or town, for the purpose of influencing the outcomes of elections. Notwithstanding this section, a city or town may distribute informational pamphlets on a proposed bond election as provided in section 35-454 if those informational pamphlets present factual information in a neutral manner. Nothing in this section precludes a city or town from reporting on official actions of the governing body.

Here’s the exception, punctuating subsection B of the same law: “This prohibition does not include routine city or town communications.”

They can be guilty of “influencing the outcomes of elections" if they act in a way supporting or opposing (the proposition) "… in any manner that is not impartial or neutral.”

On the other hand, they can argue they are just providing information by engaging in “routine business,” the law defines as “messages or advertisements that are germane to the functions of the city or town and that maintain the frequency, scope and distribution consistent with past practices or are necessary for public safety.”

The state Attorney General's Office has put forth a legal opinion that has a two-part test: was public money or a government resource (other than an elected official's time) used? And, considered objectively, does that use of public resources "support or oppose" a candidate or measure "in any manner that is not impartial or neutral."

If a reasonable person could find that the use of public resources supports or opposes a ballot measure, we assess whether it is done in a neutral or impartial manner by examining whether it is: (1) free of advocacy; (2) free of misleading tendencies, including amplification, omission, or fallacy; and (3) free of partisan coloring.

On Oct. 8, the City Manager Mike Ortega and City Attorney Mike Rankin put out a memo to, in their words, “be responsive to questions” raised by the community.

They took the opportunity to explain in detail how Prop. 205 would risk $12 million federal grant funding for law enforcement, endanger certain law enforcement programs like the crime lab and cold-case investigations while barring collaborative efforts with federal law enforcement on issues not related to immigration.

Whether these answers break the law requires proving intent. Now, I know Rankin wants this thing imploded. And you may know Ortega wants it deep-sixed. Proving intentions and motive is incredibly difficult. Could it be done? Sure. But a smoking gun is required. Even if you find that Marlboro-puffing-Colt 45, congratulations. You chased the shiny object 18 miles from your core message.

The suit also hit Councilman Steve Kozachik, who's made his take on the issue quite clear. He's included a lot of information on the proposition in his weekly email, and not been shy about discussing things when he's interviewed. Thing is, his city-distributed newsletter is subject to that law, but elected officials are talk all they want about elections — just so long as they're not using city resources to attempt to convince voters.

In my day ... 

Of course government staff can be a tool for opponents of ballot initiatives that affect local governments.

During my foray into local politics, that was one of the first things I made happen. We got the staff to “electioneer” in all but name only.

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Back in 2009, a handful of us had the job of beating back a ballot initiative that was winning by 35 points in an internal poll. It was a measure that would have turned the whole of the city general fund over to justice and law enforcement. Everyone knew (the theory went) you can’t be against cops and firemen. So there was nothing you could do but enjoy the looming police state.

Our bigger problem was that the 2009 city elections followed the 2006 midterms and the 2008 presidential elections when Democrats swept back into power. Gabby Giffords was in Congress and Barack Obama was in the White House. The core of the Democratic base felt like they had earned a break from politics.

The Republicans, meanwhile, were burning with Tea Party passion for some blue blood. They would have to wait three years to get a crack at Barack Obama and another year to rally against Giffords. Nina Trasoff would have to suffice for a surrogate.

So here’s how we changed the game. We held a public meeting and stuffed a community room full of groups that get city money that would be put at risk by that ballot proposition. And we invited County Administrator Chuck Huckelberry and then City Manager Mike Letcher to tell them how screwed these groups would be if the ballot initiative were approved. Each played their parts spectacularly.

The next day, we had an army which understood the many ways handing the whole discretionary budget over to the criminal justice would affect a bunch of other city services.

Prop. 200 is bad for kids, families and seniors. And it will raise your taxes. Boom. Done. Sayonara suckers. We won by 40 points.

Full disclosure: I and the other guy who put together this event were rookies at that side of the game, and found ourselves being glowered at by veterans for failing to set up a sign-in table to collect names of people before they left. Activists Diana Rhodes and Katie Bolger did it for us, muttering "rookies," the whole time. 

Now it's my turn to mutter "rookies."

Focus on the fight

Corralling staff is part of how the game is played at this level. Politics ain’t beanbag. When it comes to ballot propositions, Team No is always holding baseball bats hoping lure Team Yes into back alleys.

The job of Team Yes is to remain on a well-lit street corner and spread the gospel to the passing crowds.

Why are you making me talk about Mike Rankin? Rankin isn’t your enemy.

You are standing up to Donald J. Trump. His immigration policies are good for criminals, bad for Tucson and downright un-American. 

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I find myself liking Prop. 205 more, the more vicious Trump gets toward immigrants of all varieties. The Tea Party line that they only oppose “illegal immigration” has been exposed as the lie it’s always been. Trump and his MAGAs are have turned the "tough on illegal immigration" trope into a celebration of viciousness toward migrants of all kinds.  We're talking asylum-seekers, kids who need life-saving medical treatment, storm-ravaged Bahamanians and anyone who can't prove they will never need food stamps.

And it turns out, pursuing those policies has made Trump the least popular president since Herbert Hoover. 

So maybe that’s an angst that can be tapped for Tucsonans to take a stand for the dispossessed. Maybe it’s not.

Arguing about a memo Mike Ortega helped write about whether the city could lose 17 law enforcement staffers is not going to get you to 50.1 percent unless you are starting at 57.8 percent.

This is prime time. Tucson Families Free and Together should start acting ready for it.

Blake Morlock is an award-winning columnist who worked in daily journalism for nearly 20 years and is the former communications director for the Pima County Democratic Party.


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Zaira Livier is leading the effort to get voters to establish Tucson as a sanctuary city. Her team just got played by the city.

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