Tracking Abuse of Preemption Legislation in the States: April 3, 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. LSSC is currently tracking over 600 abusive preemption bills. Here is a breakdown by the numbers:

  • Abortion – 99

  • Education – 164

  • Elections – 77

  • Housing – 16

  • LGBTQ+ – 104

  • Prosecutorial Discretion – 21

  • TOTAL (includes topics not listed here) – 626

The six topics named above aren’t the only issue spaces where state legislators are trying to preempt localities – legislators are also working to preempt local governments from regulating firearms, enacting criminal justice reforms, and more.

Firearm Preemption

Local governments are already heavily preempted from regulating firearms. Forty-five states preempt local regulation of firearms in some form – including  preempting local laws regarding licensing and registration and imposing fines on local legislators who pass gun regulations (in Arizona, the fine local legislators can face is $50,000). This session states are continuing to preempt the field of firearm regulation, even as local governments struggle to keep their communities safe from gun violence:

  • NE LB 77: This bill would prohibit any city or county from regulating ownership, possession, transportation, storage, sale or transfer of firearms. Local governments would no longer be able to regulate concealed weapons as well.

  • KS HB 2441: This bill would ban municipalities from passing any law that impacts an individual’s ability to own, possess, transport, transfer, or receive any firearm, firearm accessory or ammunition.

Election Administration Preemption

As states look ahead to the 2024 election, they have begun to consider laws that will frustrate the ability of local election administrators to carry out elections:

  • TX SB 2003: This bill would require county election officers to count a portion of the received ballots by hand rather than by machine and provides protections for poll watchers to observe the process. Skepticism about voting machines is driving the requirement for hand counting, which is vulnerable to human inaccuracy, particularly if partisan poll watchers are intimidating ballot counters.

  • TX HB 3449: This bill would create a process by which a voter’s signature is retained on file for six years and any vote by mail ballot returned by that voter would have to be verified by a committee using the signature on file. Because a person’s signature can change over time, signature verification can be a broad and inaccurate means for striking ballots submitted by mail.

Criminal Justice Preemption

As the national debate around criminal justice reform continues, states across the country are attacking local efforts to engage in criminal justice reform. In particular, as prosecutors have exercised their historical right not to prosecute those who seek out abortions or gender-affirming care, states have been introducing laws to limit this discretion and punish prosecutors for prioritizing their caseloads in a manner that doesn’t ideologically align with the state legislative majority.

  • PA HB 748: This bill would make it a misdemeanor for a local elected official to vote in favor of any law that decriminalizes a criminal violation – for example, a law that would decriminalize marijuana possession – or provides another alternative to enforcement.

  • TX SB 20: This bill would prohibit any district attorney from adopting a policy – including an instruction or directive of any manner – 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.

  • TX HB 200: This bill would create a seven-person Prosecuting Attorneys Coordinating Council that could review charges of prosecutorial “incompetence” or “misconduct” and recommend removal of a district attorney.

2023 Update – April 3Adam PolaskiFirearms Preemption, Elections, Criminal Justice