UPDATED May 8th: Democrats Voted for Some Bad Bills, but AZ Rep. Alma Hernandez Sponsored a Terrible One

UPDATE: I am very disappointed that Governor Hobbs signed HB2880 rather than vetoing it, as it deserved. Per Tucson Agenda: “Hobbs signed a bill that requires university administrators to order protesters who camp out on campuses to dismantle their tents and leave, Capitol Media Services’ Howard Fischer reports. If protesters refuse, they could face trespassing charges. The bill was sponsored by Tucson Democratic Rep. Alma Hernandez, who said last year’s pro-Palestinian protests on campuses, including the University of Arizona and Arizona State University, led to Jewish students getting harassed.” As a prosecutor, I think Fischer’s report severely underestimates the damage this bill inflicts on the freedom of academic institutions in Arizona and the penalties faced by student protest organizers. Mark my words, provisions of this bill are very likely to be held unconstitutional if it is ever actually used to penalize student organizers under Section C2, discussed below.

From May 5th, CEBV Newsletter: (Emojis omitted for technical reasons)

One of our tasks is to hold our allies accountable. This section calls out those who voted in favor of harmful bills. We ask them to heed and do better.

Alma Hernandez (D-20), Consuelo Hernandez (D-21) and Lydia Hernandez(D-24) for voting YES on SB1025 on the House floor. This bill would allow the state treasurer and state retirement systems (such as those serving teachers and first responders) to invest up to 10% of their public monies in “virtual currency.” Cryptocurrency is a terrible retirement investment: it’s speculative, has no intrinsic value, is not backed by any regulatory mechanism, and is 5 to 10 times as volatile as the US stock market. This bill gambles with our tax dollars and Arizonans’ lifetime savings. None of the three explained their votes. The bill now proceeds to Gov. Hobbs for her signature or veto. Contact Alma at ahernandez@azleg.gov or 602-926-3136; Consuelo at chernandez@azleg.gov or 602-926-3523; and Lydia at lhernandez@azleg.gov or 602-926-3553.

Lydia Hernandez (D-24) for voting YES on SB1443 on the House floor. This bill would give parents the explicit legal right to make mental health care decisions for their minor child, and creates a mandatory minimum $2,500 judgment against “governmental entities or officials” (such as schools and teachers) who violate that “right.” This would put at risk every public school teacher and school counselor who supports the mental health of a minor student with unsupportive parents. Just last month in Florida, a high school teacher who used a student’s preferred name had her teaching contract not renewed and saw a state review of her professional certificate, putting into jeopardy her future employment. Rep. Hernandez did not explain her vote. The bill now proceeds to Gov. Hobbs for her signature or veto. Contact Hernandez at lhernandez@azleg.gov or 602-926-3553.

Eva Diaz (D-22), Sally Ann Gonzales (D-20) and Kiana Sears (D-9) for voting YES on HB2880 on the House floor. This bill would ban “encampments” on university and community college campuses. At a time when our government is literally disappearing students for exercising their First Amendment right to protest against genocide, this bill is reprehensible. Universities have long been a place for student protests; lawmakers shouldn’t target these protests just because they dislike the students’ views. The bill would not have passed without support from these three lawmakers. HB2880 now proceeds to Gov. Hobbs for her signature or veto. Contact Diaz at eva.diaz@azleg.gov or 602-926-3473. Contact Gonzales at sgonzales@azleg.gov or 602-926-3278. Contact Sears at ksears@azleg.gov or 602-926-3374.

I agree with CEBV that these were bad bills for which no Democrat should have voted AYE.

SB1025 is a license to invest public retirement funds in literal Ponzi schemes and frauds like the $Trump meme coin. I can’t even imagine the excuses that Democrats might make about why they voted in favor of this. My personal opinion is that the answer would be found in looking at their campaign donors.

SB1443 is also a very bad bill, but only knowledge of how similar legislation has been absued in other states would reveal it’s base and pernicious nature, so I think a vote in favor is an act of forgivable – but regrettable – ignorance.

But SB2880 stands out as a bad bill that is simply a pernicious idea facially as well as being violative of our deepest-rooted American traditions, and likely facially unconstitutional, to boot.

CEBV gives a good reason to object to the bill, but I have additional grounds. The bill is an attack on academic freedom and the independence of our university and college leadership in handling internal discipline and policy. The bill REQUIRES that school administrations SHALL DO ALL of a list of punitive actions, including, of course, shutting down the encampment, initiating disciplinary actions, and reporting a trespass to the local police for investigation. In addition, it holds anyone associated with establishing such an encampment liable for all direct and indirect costs associated with the encampment and its dissambly (in what appears to be joint and several liability, which could put students on the hook for expenses limited only by the imagination of a vengeful administrator), and then (and by far most eggregiously) those persons are stipped of their right to be lawfully present on campus for the purpose of protest; essentially – and unconstitutionally – stripping those students of the First Amendments rights with no process whatever.

All of this is despite the fact that school administrators already have wholly adquate legal authority under A.R.S. § 15-1864, et seq. to limit protest with reasonable restrictions in time, place, and manner to address issues like campus encampments, as demostrated by the fact that Arizona schools DID in fact clear said encampments from their campuses without assistance from Hernandez’s awful bill.

I am especially disgusted that a Democrat – State Representative Alma Hernandez (LD20) – SPONSORED this abomination. That is simply unacceptable. I was further bewildered by Hernandez’ bizarre non-defense of sponsoring the bill offered during discussion in the House, decying those of her coleagues who speculated that she sponsored this bill (and others, apparently?) in cohoots with Republican leadership in exchange for unknown concessions or favors, and that her bills are “shit” (her own words, quoting other cauus members, apparently). I think the Representative doth protest too much – what was a common rumor in the Democratic caucus about Hernandez’s suspect relations with the opposition is now firmly on the public record.

But CEBV is too sparing with their criticism of the Democrats who voted for HB2880, listing only the Senate Democrats who voted in favor of the bill for some reason. Here is the Third Read vote board for HB2880 in the House, where the bill garnered 41 votes, which, of course must include some Democrats. Because even four cautious Republicans (Chaplik, Keshel, Kolodin, and Kupper) balked at this bill, the total actually included 11 Democrats: Contreras, minority whip Gutierrez, Alma Hernandez, Consuelo Hernandez, Lydia Hernandez, Luna-Nájera, Mathis, Peshlakai, Simacek, Tsosie, and Volk.

I haven’t spoken to all of the offending Democrats, some have not returned my calls or emails of inquiry (they are rather busy at the moment, I gather), however, I have spoken to one of my own Representatives, Chris Mathis, about his vote, and his explanation may be indicative of some rationales of others in supporting the bill.

Representative Mathis told me that he voted in favor of the bill in Rules after the committee counsel indicated that there was nothing facially offensive to First Amendment rights in the bill. He then felt that, due to the concerns of constituents about verbal attacks on Jewish students by some associated with the encampments, voting in favor on final read was warranted.

There are several problems with this rationale.

First, that is a very narrow reason to vote for a bill that arose in the context of repressing or hindering the expression of unpopular viewpoints, which is exactly what our constitution is intended to protect. Many Americans believe that the war in Gaza is deeply wrong and that a genocide by Israel against the people of Gaza is in process: that is exactly the kind of controversial and consequential debate we must protect against prior restraint, chilling, or punishment. The very fact that this bill arose in such a context fraught with viewpoint discrimination should be enough to prompt grave caution and reject any such legislation.

Second, I think the Rules committee counsel was gravely and obviously wrong in their opinion. Counsel failed to account for Section C of the bill, which reads in relevant part (emphases added):

C. ANY INDIVIDUAL WHO ESTABLISHES OR OCCUPIES AN ENCAMPMENT IN

VIOLATION OF SUBSECTION A OF THIS SECTION IS BOTH OF THE FOLLOWING:

1. LIABLE FOR ALL DAMAGES THAT THE INDIVIDUAL CAUSES, INCLUDING THE

DIRECT AND INDIRECT COSTS OF:

(a) REMOVING THE ENCAMPMENT ESTABLISHED OR OCCUPIED BY THE

INDIVIDUAL AND RESTORING THE CAMPUS.

(b) REPAIRING ANY DESTRUCTION, DEFACEMENT OR ALTERATION OF THE

UNIVERSITY’S OR COMMUNITY COLLEGE’S PROPERTY, INCLUDING BUILDINGS,

GROUNDS, EQUIPMENT AND RESOURCES, THAT RESULTED FROM THE INDIVIDUAL’S

INTENTIONAL OR NEGLIGENT CONDUCT RELATING TO THE ENCAMPMENT.

2. NOT LAWFULLY PRESENT ON THE UNIVERSITY’S OR COMMUNITY COLLEGE’S

CAMPUS FOR THE PURPOSES OF SECTION 15-1864 OR 15-1865.

Paragraph 2 is the worst free speech offender here. It purports to strip the accused student or students of their right to be lawfully on campus for the purpose of exercising their protected speech. There is no process, no appeal, and no limit on this stripping of a constitutional right. This is very likely facially unconstitutional, and I don’t really understand how any attorney could miss that fact when directed to assess the constitutionality of the statute. You must, of course, read and understand Sections 15-1864 and 1865, but I should think that not a terribly difficult task for any diligent attorney.

I think at minimum, Governor Hobbs should certainly veto this bill as facially unconstitutional, not to mention wholly unnecessary. Those Democrats who voted in favor should be admonished and should apologize to students in Arizona for their negligence in voting to strip them of their rights. Ladies and Gentlemen, many of your colleagues apparently thought better of supporting this bill, and you all should have listened to them. Finally, those Democrats should regret their votes as going along with the MAGA program of trying to attack and reduce the independence and academic freedoms of our public colleges and universities under the Trump Regime. You were duped, negligent, and insufficiently informed in voting in favor of this travesty.

However, Representative Alma Hernandez in sponsoring this garbage, should lose her seat to a more responsible person capable of and willing to defend our constitutional rights in the face of an unprecedented attack on the academic freedom of our institutions of higher education. Regardless of whether the allegations of secret deals with the MAGA faction are true, she has proven she should not be trusted by her caucus, nor her constituents, of which I am one.

I will never vote for Ms. Alma Hernandez again in any context. I invite you to join me in her censure.