Tracking Abuse of Preemption Legislation in the States: May 11, 2023
During the 2023 state legislative session Local Solutions Support Center (LSSC) is publishing a regular digest summarizing notable abusive preemption bills and their progress through session. An archive of 2023 updates is here. Additional information on what abusive preemption is and how LSSC is working to combat it can be found here. If you would like additional information on these bills or if you would like to discuss potential opportunities for tracking collaboration, please contact tracking@supportdemocracy.org.
Since January, GOP state lawmakers have introduced hundreds of preemption bills for consideration. As expected, themes from the 2022 legislative session – namely, preemption of education, election administration, and LGBTQ rights – continue to dominate this year's session.
With legislative sessions coming to a close, we’ve noted below the status of some of the most abusive preemption bills introduced in 2023.
Abortion
TN HB 90 (Enacted): This bill prohibits municipal funding from being used to assist someone to obtain an abortion, including funding insurance plans that cover procedures in and travel cost to another state where abortion is legal.
KS SB 5 (Passed in the House): This bill would prohibit the prescription of medication to induce an abortion via telemedicine.
Education
AZ SB 1700 (Passed in the Senate): This bill would take away local control by directing the Arizona Department of Education to create a list of books prohibited in school libraries. It would also well allow parents to request that school districts or charter school libraries remove books and material that “promote gender fluidity or gender pronouns.” This bill is particularly concerning given that LGBTQ youth – particularly transgender and nonbinary individuals – already face greater health and suicide risks than their cisgender and straight classmates.
IA SF 496 (Awaiting Governor’s signature): This bill would prohibit instruction on gender identity or sexual orientation from Kindergarten through Grade 6 as well as provide a process through which parents can request the removal of books from school libraries.
Elections
MT HB 598 (Enacted): This law prohibits the state and municipalities from using ranked choice voting or any method involving multiple rounds of tabulation. By prohibiting municipalities from using ranked choice voting, states will diminish the electoral impact of marginalized communities.
TX SB 990 (Passed in the Senate): This bill would eliminate Texas’ countywide polling program, which had allowed qualifying counties to set up countywide polling places so voters did not need to rely merely on precinct specific polling places.
Housing
FL SB 102 (Enacted): This law, which Governor DeSantis signed into law on March 29th, prohibits municipalities from enacting rent control under any circumstances and removes the exception that had allowed municipalities to enact rent control under certain declared emergency conditions. As the Florida Policy Institute points out, removing the ability of municipalities to establish rent control takes away “one of the most effective tools still left in tenants’ toolbox” and is especially concerning given that Florida ranks first in the country for residents who are rent-burdened and severely rent-burdened.
TX HB 2665 (Passed in the House on May 9th): This bill would ban municipalities from prohibiting the use of property for short-term rentals, regulating the duration or frequency of use for short-term rentals, or limiting the number of occupants in a short-term rental property. As Local Housing Solutions points out, several studies have found evidence that short-term rentals contribute to rising rents – further worsening the ongoing housing crisis.
Prosecutorial Discretion
GA SB 92 (Enacted): This law, which Governor Kemp signed on May 5th, creates the Prosecuting Attorneys Oversight Commission, which has the power to investigate and remove locally elected prosecutors from office. If this law is used to target local prosecutors who use their discretion to engage in criminal justice reforms, it could create both a chilling effect in Georgia and also encourage state legislatures hostile to reform to pass similar measures.
TX SB 20 (Passed in the Senate): This bill would prohibit any district attorney from adopting a policy of declining to enforce a criminal offense, such as the state’s criminal prohibition on abortion. Violation of this law could subject a district attorney to removal. Given the broad authority that the Texas Constitution affords district attorneys to prioritize and initiate prosecutions, this bill could conflict with these strong constitutional protections for discretion.
There are some bright spots on the horizon, where advocates have made enormous strides forward to protect local power and democracy, defeat preemption, and roll back long standing policies designed to weaken the ability of people and their local elected officials to enact commonsense local policies:
WV SB 130 (Dead): This bill would have prevented schools from teaching certain “divisive” concepts and theories regarding the influence of racism and privilege.
NJ SB 3167 (Pending in Committee): This bill would prohibit schools from providing information or carrying pamphlets for health clinics that provide abortion.
VA SB 834 (Pending In Committee): This bill would repeal Virginia’s law allowing voters to request to permanently vote by mail.
OK HB 2186 (Pending In Committee): This bill would prohibit drag queen story hour, children’s events where drag queens read books to children, and override any municipal license that had authorized businesses to host drag queen story hour.
VA HB 2432 (Passed in the House, stalled in the Senate): This bill would require school employees to notify a parent if a student is identifying with a gender different from the one assigned to them at birth.