Bill seeks to replace pro-Israel law found unconstitutional

Slapped down by a federal judge, a supporter of Israel is making a new bid to keep those who boycott the country and firms that do business there from getting government contracts.

But the proposal by Sen. Paul Boyer, R-Phoenix, appears more designed to undermine the claim of illegality made by a Flagstaff attorney, a claim upheld by U.S. District Court Judge Diane Humetewa last year. And an attorney for the American Civil Liberties Union, which won an injunction against the first iteration of the law, called the new version a “transparent attempt to avoid another defeat in court.”

SB 1167, set for debate Thursday in the Senate Commerce Committee, is virtually identical to the 2016 law approved by the Legislature. It would bar state or local governments from entering into a contract for services or supplies unless the company certified in writing that it is not engaged in a boycott of Israel.

That law resulted in a lawsuit last year by the ACLU on behalf of Mik Jordahl who had been doing work for the Coconino County Jail District worth more than $18,000 a year.

Jordahl, according to the lawsuit, also is a non-Jewish member of Jewish voice for Peace, which endorses the Boycott, Divest and Sanctions movement to protect the actions of the Israeli government, “including the occupation of Palestinian territories.” But he refused to sign the certification that he would not boycott companies that do business in Israel, filing suit instead to void the law.

In a ruling last year, Humetewa said the law interferes with First Amendment rights.

Humetewa rejected arguments by Attorney General Mark Brnovich that lawmakers have a legal, and even moral, right to prevent public dollars from going to individuals and companies who try to pressure the Israeli government through economic means. She said the state cannot use its economic power to deny people their right to speak out and act on their personal beliefs.

Brnovich is asking the 9th Circuit Court of Appeals to overturn that ruling. The judges have not yet set a date to hear arguments.

What Boyer’s SB 1167 bill would do is make anti-boycott law applicable only to firms with 10 or more full-time employees and for contracts of $100,000 or more.

Put simply, if the Boyer measure becomes law, the 2016 statute that Humetewa found unconstitutional would no longer exist, leaving nothing for the appellate judges to consider and effectively forcing them to dismiss the case. More to the point, by limiting who is affected, it would exempt Jordahl, meaning he would have no legal right to sue to have the new version overturned.

Boyer insisted that his legislation simply puts the law in the form it was meant to be in the first place.

“It was never intended to focus on individuals,” he said. And Boyer said he believes revamping the law this way will help it survive another legal challenge — assuming some larger firm refused to sign the certification.

Boyer also defended denying public contracts to firms that boycott companies that do business in Israel even if that firm is the lowest bidder — and even if it means taxpayers shell out more money to contract with another firm that does not engage in a boycott.

“We’re saying as a state we don’t want to do business with someone who’s taken a public position to boycott, divest or sanction a people simply because of who they are,” he said.

ACLU attorney Brian Hauss chided Boyer for thinking he can deal with the issue by undermining Jordahl’s litigation.

“As the bill demonstrates, Arizona knows that its anti-boycott law violates the First Amendment,” he said in a prepared statement.

“This is a transparent attempt to avoid another defeat in court by passing face-saving measure that would narrow the law into political oblivion,” Hauss continued. “The proper response would be to repeal this unconstitutional law in its entirety.”

The case has drawn national attention, with various organizations and self-proclaimed First Amendment scholars filing their own legal briefs with the appellate court asking the judges to uphold Humetewa’s ruling and find that the law was designed to illegally suppress free speech rights.

This isn’t Boyer’s first foray into the area of international relations, particularly as they apply to Israel.

Boyer, who wears an Israeli flag pin in his lapel, pushed a measure through the House in 2014 declaring that the entire West Bank belongs to Israel and that the 650,000 Jews who have settled there since the 1967 war “reside there legitimately.”

With no debate, the House approved Boyer’s resolution that the area, which some Israelis refer to by the biblical names of Judea and Samaria, was granted to Israel “through the oldest recorded deed, as recorded in the Old Testament. And his resolution said the “claim and presence” of Jewish people in Israel, including the West Bank, has “remained constant throughout the past 4,000 years of history.”

The resolution also declares that Israel is not an “occupier of the lands of others” and there can be peace in the area “only through a whole and united Israel.”

Boyer, in pushing that resolution, said it did not seek to displace current Palestinians.

“This just says that this is historically part of Israel and the part of Israel that’s now disputed now should remain part of Israel,” he said.