LR-121: A Resource on Montana’s 2012 Anti-Immigrant Referendum

May 21, 2012Shahid Haque

LR-121 is a referendum that will be appearing on ballots throughout Montana on November 6, 2012.  LR-121 aims to deny a wide variety of state services to Montana residents who cannot prove that they are U.S. Citizens or documented immigrants.  This post is designed to serve as a resource on the referendum, discussing how it came to appear on the ballot, what it seeks to do, and why it will be so costly and damaging to the state.History of the ReferendumUnlike most referendums that are brought by the public and require signature gathering to be placed on the ballot, LR-121 was actually a legislative referral.  The Montana Legislature passed HB 638, a bill brought by Rep. David Howard (R) to place this issue on the ballot as a referendum.  Therefore, by operation of law, the referendum will now be brought before Montana voters in the general election.Rep. David Howard, the proponent of this referendum, had unsuccessfully carried 3 bills in the 2009 session and 6 other bills in the 2011 session to attempt to bring the state into the business of enforcing federal immigration laws.  We have discussed many of these bills on this blog.  All of these other bills were defeated, but his legislative referendum managed to pass both the House and Senate.  The votes were almost completely along party lines, with Democrats voting against the referendum and Republicans voting in support.  Two notable exceptions were Sen. Joe Balyeat (R) and Rep. Liz Bangerter (R) — both of whom split with their party to oppose the referendum.

The Language of LR-121 to Appear on the Ballot

The Montana Secretary of State has certified the following language to appear on the ballot:

AN ACT DENYING CERTAIN STATE-FUNDED SERVICES TO ILLEGAL ALIENS; ESTABLISHING PROCEDURES FOR DETERMINING A PERSON’S CITIZENSHIP STATUS; PROVIDING THAT THE PROPOSED ACT BE SUBMITTED TO THE QUALIFIED ELECTORS OF MONTANA; AND PROVIDING AN EFFECTIVE DATE AND AN APPLICABILITY DATE.LR-121 prohibits providing state services to people who are not U.S. citizens and who have unlawfully entered or unlawfully remained in the United States. Under LR-121, every individual seeking a state service, such as applying for any state licenses, state employment, unemployment or disability benefits, or aid for university students, must provide evidence of U.S. citizenship or lawful alien status, and/or have their status verified through federal databases. State agencies must notify the U.S. Department of Homeland Security of noncitizens who have unlawfully entered or remained in the U.S. and who have applied for state services.The costs associated with verifying U.S. citizenship or lawful alien status will vary by agency and cannot be precisely determined. However, on-going costs may include: hiring and training state personnel to use various federal databases; software, hardware and search charges; and information assessment and management costs.[] FOR denying certain state services to illegal aliens.[] AGAINST denying certain state services to illegal aliens.

In layman’s terms, this bill would insert the federal government between almost every agency in this state and the services they provide to Montana residents.  As discussed below, this bill is part of a misguided effort to use state resources to enforce federal immigration laws, and will be costly and damaging to the state.As you can see, this referendum includes the term “illegal alien” in some sections.  Please refer to this resource for why the term “illegal alien” is offensive and inaccurate.

What State Services Will Be Denied to Unauthorized Immigrants?

The bill would require employees of the State of Montana to serve as federal immigration agents, attempt to determine the immigration status of applicants for services, and deny these services to undocumented immigrants.  They will be required to use a costly “pay-per-use” federal database to perform these checks.  These are the services that are to be denied:

Employment with a state agency. This referendum will require all state agencies to check immigration status and deny employment to anyone who cannot prove U.S. citizenship or authorized status.  There are already federal laws requiring that all applicants for employment complete an Employment Verification Form before starting work.  Most of you are probably familiar with the process — you present certain forms of ID to prove eligibility to work, and then you sign a form.  The federal government has not imposed any additional requirements or mandated the use of their federal system to verify work authorization.  Nevertheless, this referendum seeks to voluntary commit the state to using a costly and time-consuming federal database to screen employees.

Ability to attend any public university in the state. There is no federal law that prohibits undocumented immigrants from attending college.  Most states allow undocumented students to attend college, although they may be required to pay tuition as non-residents of the state.  Under Montana’s current laws, “[t]he university system is open to all people, subject to such uniform regulations as the regents deem proper.”  This referendum would change this and require all students to prove their citizenship or immigration status, and be denied admission if they cannot do so.  Somewhat redundantly, the referendum would also cut off an undocumented student’s ability to get student financial assistance.  Worse, it would require the state to turn any undocumented students over to the federal immigration authorities!

Ability to get a state license or permit to practice any trade or profession. For the first time, this referendum would require state agencies that issue licenses or permits to screen applicants for immigration status.  The requirement would apply to all licenses and permits provided in Title 37, which includes over 75 different professions from barbers to massage therapists and real estate brokers.  One can only imagine the number of applicants that state employees will now be required to screen.  Since current procedures do not require any such screening, this will likely require some significant changes in the licensing and permitting process.

Ability to get unemployment insurance benefits. The referendum would specifically prohibit undocumented aliens from receiving unemployment insurance benefits as provided under law.

Assistance with vocational rehabilitation. Montana law provides for some assistance to help “a person with a disability to enable the person to the extent possible to become independent and productive or employable.”  The referendum would strip undocumented immigrants with such disabilities from getting any rehabilitation.

Services for victims of crime. Under Montana law, there is a Crime Victim Compensation fund to “help innocent crime victims with crime-related medical expenses.”  This includes “lost wages and medical and funeral expenses incurred as the result of personal injury crimes. These crimes include homicide, rape, domestic violence, stalking, assault, child sexual and physical abuse, and drunk driving.”  The referendum would prevent victims of crime who are undocumented immigrants from getting help.

Services for the physically disabled. The referendum oddly seeks to eliminate access to two types of services for physically disabled individuals.  The referendum states that it will deny “services for the physically disabled, as provided in Title 53, chapter 19, parts 3 and 4.”  These are the parts relating to “a program to make specialized telecommunications equipment and services available to persons with disabilities” and “newborn hearing screenings.”  It is troubling that the referendum would deny access to necessary equipment for people with disabilities, and it is quite disturbing that it seeks to deny a simple hearing test to newborns.  It goes without saying that most newborns in Montana are likely U.S. citizens by virtue of being born in this country.

Ability to get a grant. Finally, the referendum seeks to limit the ability to get any kind of grant as provided in Title 90 of the Code.It should be noted that LR 121 appears to be drafted to deliberately create the impression that its scope is even broader than it actually is.  At certain points, the language of the legislative referendum appears sweeping, seemingly reaching to all state services provided to undocumented aliens.  Public perception of a law often shapes its implementation, and the broad language of the referendum will have lasting effects beyond the specific areas outlined above.

How Will the State Verify the Legal Status of Applicants for Services?

This referendum would require the State of Montana to check a costly federal database before granting services to Montana residents.  Montanans have spent years fighting this level of federal intrusion into our day-to-day activities, as evidenced by the vocal opposition to federal REAL ID laws.  However, this referendum would insert a federal government database into almost every agency of the State of Montana — and require us to pay for its use!The federal database that would be used is the Systematic Alien Verification for Entitlements (“SAVE”) system.

The SAVE system is not free.

The federal government charges between $.50 and $2.00 for each search in the system.  The minimum cost is $.50.  When you consider the numbers of applicants for state services, this could quickly add up to millions of dollars.  State agencies will also waste time and resources training employees on how to use this system, and checking it before allowing access to a wide variety of state services.The SAVE system is not a fully computerized system that provides immediate results.  In actuality, this system often fails to ascertain immigration status at the “initial verification” stage, and a secondary or third inspection is required.A report from U.S. Citizenship and Immigration Services (“USCIS”) states that 6% of its checks are not resolved immediately and require secondary or third inspection.  USCIS estimates that secondary inspection can take up to 3-5 working days to complete.  In actuality, applicants have complained of delays of over 15 days.Agencies may be required to process paperwork in the third inspection stage, including a G-845S Document Verification Request.  At this stage, the agency has to make copies of all of the applicant’s immigration papers, fill out a form, and send it to USCIS.  Then, the agency must wait 10-20 working days or longer for a response.

The SAVE System is Similar to REAL ID

Requiring that our state agencies use federal systems to verify access to benefits has an impact on our state sovereignty.  The mandatory use of the SAVE system was a major part of the federal REAL ID law that Governor Schweitzer and the Montana legislature resoundingly rejected in 2007.

It is important for Montanans to realize that this referendum imposes even more sweeping and burdensome requirements than REAL ID.

REAL ID would have required the use of the SAVE system, just like this bill.  However, REAL ID was far more limited than this referendum.  Republicans and Democrats both took issue with imposition of a backdoor federal system that the state would be required to use, and passed a law declaring that the state “will not participate in the implementation” of REAL ID.  We must reject LR-121 for the same reasons.

We Don’t Need this Law in Montana

Montana is one of the states with the least numbers of immigrants in the whole country.  Montanans must consider if enforcing federal immigration laws are worth the delays in service and extra cost to the state.During the 2009 and 2011 legislative sessions, the proponents of anti-immigrant legislation estimated that there are no more than 4,000 undocumented immigrants in Montana.  One can safely assume that far fewer are actually accessing state services.  It would cost the State of Montana far more to implement this law than we are “losing” by providing services to undocumented immigrants.

Fiscal Impact of LR-121

It should be noted that state agencies were asked to complete some fiscal statements, which were woefully inadequate and not well-reasoned.  The true impact of LR-121 will reach far beyond the limited analysis in these agency reports.  You can find a copy of those agency fiscal reports here.

Who is Currently Working to Oppose the Referendum?

For the past six years, an ad hoc coalition of organizations and individuals has worked to defeat over 25 anti-immigrant proposals at the past three legislative sessions.  This coalition has included the Border Crossing Law Firm, P.C.Montana Human Rights Network, the Gallatin Valley Human Rights Taskforce, the Montana Coalition Against Domestic and Sexual Violence, the Teamsters, SEIU Healthcare 775 NW, members of the faith community, individual activists, concerned members of the community, and immigration attorneys.   Without specific funding, the coalition has operated on in-kind contributions of staff time, printing, etc. from organizations as well as volunteer hours and resources from individuals.Many members of this coalition have come back together in an effort to raise resources and run a campaign to educate Montana voters and defeat LR-121.  Please contact me if you can provide any help to defeat LR-121.This article will be updated with more information as it develops.

Advocating for immigrants.

The Border Crossing Law Firm is a full-service immigration law firm, offering help with visas, green cards, citizenship, and deportation proceedings. We have been committed to the immigrant community for two decades, representing thousands of immigrants and their families across the country.