Tracking Abuse of Preemption Legislation in the States: March 1, 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.

State legislatures have been in session for just over a month now and already hundreds of preemption bills have been introduced for consideration. LSSC is tracking over 400 abusive preemption bills. Below is a breakdown by the numbers:

• Abortion – 94

• Education – 109

• Elections – 52

• Housing – 9

• LGBTQ+ – 58

• Prosecutorial Discretion – 7

• TOTAL – 423

Many of the same themes from the 2022 legislative session have come back in equal or greater force this session, and the addition of Texas – which has its legislative session every two years – means this year will likely bring new problems in preemption.

Elections

Following the 2020 election, many state legislatures have seized on false claims of election fraud and used preemption to hamper the ability of local election officials to carry out their duties. This session, states are particularly targeting methods of elections, including ballot initiatives and ranked-choice voting. By prohibiting municipalities from using ranked choice voting and raising the vote threshold of ballot initiatives, states will diminish the electoral impact of marginalized communities, for example:

• AZ SB 1265: This bill would prohibit the state and municipalities from using ranked choice voting or any method involving multiple rounds of tabulation.

• FL HJR 129: This joint resolution would lift the threshold for constitutional amendments passed through ballot initiative to require 66.67% of the vote to pass, up from the current threshold of 60%.

Housing

Particularly as pandemic-era emergency housing protections have begun to sunset, states are increasingly returning to preemption to block local efforts to protect and support tenants, for example:

• FL HB 102: This bill would prohibit municipalities from enacting rent control under any circumstances, removing the exception that had allowed municipalities to enact rent control under certain declared emergency conditions.

• KS HB 2255: This bill would require municipalities to implement work requirements in order for individuals to receive housing assistance or federal funding for housing. Instituting work requirements for housing would harm families and potentially push them into homelessness and further hardship. 

Curricular Preemption

This legislative session, curricular preemption remains the most salient preemption trend, with new bills introduced to prohibit the honest teaching of racism in American history as well as discussion of topics related to sex, gender, gender identity, and sexual orientation, for example:

• AL HB 7: This bill would prohibit schools from teaching certain “divisive” concepts about racism and systems of oppression. Teaching these concepts would be grounds for termination.

• AZ SB 1305: This bill would prohibit schools from teaching certain “divisive” concepts about racism and systems of oppression. Any student or parent could file a complaint with their school district, with appeal to the state board of education, if they believe there has been a violation of this law. The school district could be liable for civil penalties for violations.

Other Notable Bills

• MS HB 1020: This bill would create a special court system for areas in Jackson, Mississippi where the majority of residents are white. In this special court system, the Mississippi Chief Justice would appoint all judges and the Attorney General would appoint all prosecutors. Both Mississippi’s Attorney General and Chief Justice are white while over 80% of the residents of Jackson, Mississippi are Black. As many news articles have pointed out, this bill would create two systems of justice in Jackson.