Claiming “irreparable harm,” a top aide to Attorney General Mark Brnovich asked a federal judge Tuesday to let Arizona continue enforcing its prohibition on boycotts of Israel by companies with public contracts while the state appeals her ruling.
In new legal filings, Assistant Attorney General Curtis Ensign tells Judge Diane Humetewa she erred in concluding the state violates the First Amendment rights of firms by tying their ability to have public contracts with a vow not to boycott Israel or companies that do business there. Ensign hopes to get the 9th Circuit Court of Appeals to overturn her ruling.
But in the meantime, Ensign wants Humetewa to let Arizona keep in place the provision she found unconstitutional.
“The statute enjoined by this court was passed by bipartisan supermajorities,” he told the judge. “And the state by definition suffers irreparable harm when it is precluded from carrying out the laws passed by its democratic processes.”
He said that Humetewa, in striking down the law, ignored not only state policy as established by the Legislature but also federal policy which opposes boycotts against Israel.
But Ensign said the request is more than philosophical.
Humetewa’s ruling, unless overturned, means that state and local governments have to immediately recraft the contracts they are awarding to strip out the anti-boycott language.
“Although precise numbers cannot be known at this time, it is expected that the State Procurement Office itself will likely issue hundreds of new contracts in the next six months to a year,” Ensign wrote, the amount of time it could take a federal appeals court to review Humetewa’s ruling.
The 2016 law requires any individual or firm seeking a contract with state or local governments to sign a statement saying it will not boycott Israel or firms that do business there.
Flagstaff attorney Mik Jordahl, represented by the American Civil Liberties Union, challenged the law. Jordahl said he supports efforts by the Palestinians for their own homeland and opposes Israel policy in occupied territories. And he wants the ability of his law firm, which does legal work for Coconino County, to be allowed to do things like refuse to purchase computer equipment from Hewlett Packard specifically because that company provides information-technology services used by Israeli security at checkpoints throughout the West Bank.
In an extensive ruling last week, Humetewa said the contract language violates the First Amendment rights of individuals to engage in boycotts.
That ruling, technically speaking, is not final. It still gives the state chance to argue that the law passes constitutional muster.
But Humetewa, in her ruling, concluded that Jordahl is likely to prevail even after a full-blown trial. And in the meantime she said the state cannot enforce the anti-boycott language.
While arguing “irreparable harm” to the state, Ensign contends that leaving the provision in place, at least for the time being, would be at best a minimal inconvenience to Jordahl.
“Jordahl’s company only identified a single potential purchase of HP products on the horizon, a computer, and had not even performed the basic research to determine if an HP (desktop) would be the best computer provider for his business,” Ensign wrote. “Without performing that research, plaintiffs’ harm is entirely conjectural and plaintiffs have failed to satisfy his burden of proving that he is likely to suffer irreparable harm in the absence of preliminary relief.”
That could prove a hard sell to Humetewa.
In her ruling last week, the judge suggested she was looking at the law not only through the hardship to Jordahl and his law firm but from the broader perspective of the rights of all individuals and companies that want to do business with the state but may not want to be bound by the anti-boycott language.
“Citizens do not surrender their First Amendment rights by accepting public employment,” Humetewa wrote, a concept she said that extends to those who have public contracts.
No date has been set for a hearing on the state’s request.