Tracking Abuse of Preemption Legislation in the States: March 8, 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 – 96

• Education – 122

• Elections – 61

• Housing – 10

• LGBTQ+ – 69

• Prosecutorial Discretion – 7

• TOTAL – 493

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.

Election Preemption

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. As discussed in our last update, states are particularly targeting methods of elections, including ballot initiatives and ranked-choice voting. But they are also targeting local administration of elections to suppress voter outcomes, particularly in more urban areas:

• AL SB 9: This bill would require that all paper ballots be inspected by election administration officials. This bill is designed to target electronic voting methods that have allowed polling places to process more votes efficiently and sow doubt about the authenticity of voting results calculated electronically.

• MT HB 599: This bill would make it easier for the state to strike infrequent voters from the voter registration list, thus disenfranchising potential voters who likely already face systemic barriers to voting.

LGBTQ Preemption

The LGBTQ community, particularly the transgender community, has been a primary target of preemption in the 2023 legislative session. Legislatures have been targeting the discussion of gender identity and sexual orientation in classrooms, the use of pronouns other than those assigned at birth, gender reassignment procedures, and drag performances:

• GA SB 140: This bill would prohibit hospitals and other licensed healthcare facilities from providing gender affirming care to minors.

• ME LD 678: This bill would require parental permission for school employees to refer to students by pronouns other than those assigned at birth.

• MN HF 1903: This bill would impact municipal zoning and land use by severely restricting the areas where venues that host drag performances can be located. 

Environmental Preemption

State legislators continue to use preemption to target local environmental policies. One of the newer trends is targeting local governments that choose to adopt ESG (environmental, social, and governance) investing practices:

• SC H 3564: This bill would prevent municipalities from using environmental, social, and governance standards for evaluating contractors. It would also prevent municipalities from refusing to contract with entities that invest in fossil fuel production, mining, or timber production.

• TX SB 784: This bill would entirely prevent municipalities from regulating greenhouse gas emissions.