Romney Faces a Tough Choice on Immigration

Two weeks ago, President Obama put Mitt Romney in a tough position with his DREAM Act by executive action—with a policy on the table, Romney was forced to respond, and his opposition to humane immigration reform came to the forefront of the election. With today’s ruling on Arizona’s immigration law, the Supreme Court has put Romney in another perilous spot that may damage his attempt to win back Latino voters–or at least stem the bleeding.

As my colleague Scott Lemieux notes in an excellent piece on the ruling, a 5–3 majority on the Court stuck down three of the major provisions in Arizona’s infamous immigration:

[T]he imposition of a state penalty for failing to “complete or carry an alien registration document” in violation of federal law; a provision making it a state crime for an undocumented alien to seek employment; and a provision allowing state law enforcement officials to arrest anyone without a warrant if they have “probable cause” to believe that a person has “committed any public offense that makes [him] removable from the United States.”"

The Court upheld a controversial provision that required law enforcement officials to make a “reasonable attempt” to determine the immigration status of people who are stopped or arrested, provided there is reasonable suspicion that the individual is in the country illegally. Of course, this opens the door to massive civil rights violations, as overly cautious law enforcement officers stop anyone who might “look” undocumented—i.e., people of Hispanic descent. That said, as the Court explain, this provision is still open to constitutional challenge if it conflicts with federal law or if it has a disparate affect on racial minorities. Since the latter is almost certainly true, there’s a decent chance that–in the near-future–it will be the subject of another lawsuit.

The problem for Mitt Romney is that the Arizona law is still popular with Republican voters. In a recent Pew survey 84 percent of Republicans said that they approved of the measure. In light of the Court’s decision, Romney will face pressure to defend the law and repeat the rhetoric of his primary campaign, where he praised SB–1070 as a “model” for the nation.

Already, Romney is losing Latino voters by a greater margin than any Republican presidential nominee since Bob Dole; in the latest Gallup survey, Obama leads Romney 66 percent to 25 percent, a 41 point margin. If he were to follow the lead of the law’s supporters and condemn the Supreme Court for its decision, he would further alienate Latino voters and drive them further into the Democratic fold. It’s not hard to imagine a world where Obama wins the bulk of undecided Latinos–who amount to 5 percent of all Latino voters–and opens up a near-fifty point lead over Romney among the demographic. In that scenario, Romney would have to win an overwhelming majority of white voters to capture the presidency, which is much harder than it looks, even given Obama’s weakness with whites nationwide.

Immigration is Romney’s most glaring weakness with Latino voters, and the Supreme Court has just forced him into a position where he’ll have to say something. At the moment, he has two choices: alienate his Republican base, or alienate the Latino voters he needs to break Obama’s electoral firewall. Regardless of how he chooses, it will have a significant effect on the flow of the election.