specially concurring:
¶ 44 I concur with the result and, except for the application of the Salerno test, I essentially agree with the reasoning of the majority. I write separately to explain two differences I have with the majority and to emphasize what the court does not decide in this opinion.
*481¶45 The only issues before us are the facial invalidity of Proposition 100 under substantive due process principles and whether Proposition 100 can constitutionally apply to persons who may have illegally entered, but are legally present in the United States. I would apply the “large fraction” test to determine invalidity. Supra, ¶ 9 and n. 4. I reach that conclusion because the United States Supreme Court has not applied the Salerno “no circumstances” test in a challenge to denials of bail based on an individual’s membership in a group rather than based on individualized determinations of flight risk. Given the uniqueness of this setting and the consequences it can have based on an unconvicted individual’s liberty interest, I think it behooves us to apply this less stringent test.
¶46 That said, I agree with the majority that which test we apply is not determinative because petitioner has not presented to this Court or to the superior court any evidence that Proposition 100 would be facially unconstitutional in the large fraction of cases.11 This failure of proof does not preclude another party from raising such an issue and attempting to create an appropriate record, such as by showing that in the large fraction of cases pretrial delays increase the period of incarceration beyond a constitutionally permitted timeframe.
¶47 Nor does our decision preclude as-applied challenges to Proposition 100. Thus, for example, neither party has raised the issue whether application of Proposition 100 to a person who is in the country illegally, but based on specific facts poses no flight risk, would be unconstitutional because it would not be sufficiently constitutionally related to the legitimate governmental purpose of ensuring presence at trial. Supra, ¶ 14 (denying bail under Proposition 100 to persons lawfully in the United States would act as a punishment for past acts rather than to serve the regulatory purpose of ensuring presence at trial); Salerno, 481 U.S. at 747, 107 S.Ct. 2095 (court must determine whether the limitation on bail “appears excessive in relation to the alternative purpose assigned [to it].”) (quoting Schall v. Martin, 467 U.S. 253, 269, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984)). Such an as-applied challenge must await further cases.
¶ 48 Similarly, there may be lengthy pretrial delays in specific cases based on exclusions of time from the periods required by Arizona Rule of Criminal Procedure 8.1 or waivers from such time requirements granted by our Supreme Court. See Rules 8.1(d) and 8.4. A specific challenge to the constitutionality of pretrial incarceration under Proposition 100 based on a lengthy incarceration would be an as-applied challenge and necessarily not be precluded by our decision. Cf. Demore, 538 U.S. at 532-33, 123 S.Ct. 1708 (Kennedy, J., concurring) (“Were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.”).
. The majority points out that the legislative history to Proposition 100 shows that its sponsors intended it to be regulatory in nature, rather than punitive. Supra, ¶¶ 32-35. This legislative intent is important because, if the express intent was to punish persons illegally in the country, Proposition 100 would probably be facially invalid. Salerno, 481 U.S. at 747, 107 S.Ct. 2095. I agree that the overall stated intent was to regulate rather than to punish, given the legislative history and the statements of some of the sponsors. Supra, ¶¶ 32-35. This conclusion, however, is not free from doubt since several of the statements by sponsors in the publicity pamphlet reveal a mixed motive, including that Proposition 100 was intended in part to "secure our borders." However, these same supporters and others included express statements that support the view Proposition 100 was regulatory in nature— to either ensure persons covered by it attended trial or to protect our communities from violence.