FEATURED: FIREARMS & VOTING RIGHTS
There is currently intense pressure behind preemption efforts as many state legislative sessions wind down. While there is some positive movement on the preemption repeal front, the vast majority of these stories concern state preemption threats. In this issue, we highlight two of the hottest state preemption issues, gun policy and voting rights.
The lack of strong and effective gun laws in most of the 50 states is a core challenge to safety and the peaceful exercise of democracy, and the single greatest challenge to adopting those laws is state preemption. All but seven US states preempt local authority to regulate firearms and ammunition, and while preemption threatens progress on many issues, firearms preemption remains the greatest threat we face today.
Preemption blocks the adoption of straightforward and proven policies, including owner licensing and firearm registration. While these laws are supported by the vast majority of Americans, all progress at the local level is blocked in 43 states. The following news stories represent a sample of the current reporting on both adopted preemption laws and new threats.
6 Bold Ideas for Gun Reform That Could Actually Happen
- Protecting home rule from state preemption
Since the 1980s, the NRA has been lobbying state legislatures to strip cities and counties of the authority to enact their own municipal gun ordinances. This type of legislation is called preemption, and it’s pervasive — there are now broad firearms preemption laws in 43 states.
Commentary: American cities have regulated guns, now most can’t
Bend Bulletin, 3/26/2021
[F]or all the heated rhetoric around the Second Amendment, state laws are a far more significant barrier to gun regulation than the Constitution. [Emphasis added]
The assault-style ban set by the municipality fell after a two-year court case, but it is sure to stoke battles nationwide over municipal attempts to pass firearms regulations that are stricter than state or federal laws.
As the US begins recovering from a multi-year attack on democracy (especially in political swing states such as Georgia), voting rights has now joined the long list of health, safety and social issues in which legislation is being introduced and passed to interfere with local voting policies, practices, and accountability. Below are examples of this new and deeply concerning trend in state preemption to undermine the exercise of democracy.
The States Following Georgia’s Lead on Voter Suppression
New York Magazine, 4/3/2021
Preemption of local efforts to make voting easier
[Preemption is] a hallmark of the bill that just passed the Texas Senate — much of it aimed at cracking down on urban counties that made voting easier in 2020. In the name of “standardization,” Texas Republicans (led by Lieutenant Governor Dan Patrick) would prohibit the 24-hour early voting and drive-through voting that Harris County (Houston) authorized last year.
Opinion: Ga. GOP’s essentially made it legal to discount your ballot
SB 202… will give the majority in the legislature the power to control the State Election Board (SEB), weaken the power of the Secretary of State, and then use the secretary’s own resources to take over local county administration by removing a county election superintendent and replacing that person with a sham election administrator who is under the control of the majority party of the legislature. [Emphasis added]
Republican lawmakers are seeking to exert control over local elections
Partisan takeovers of election boards. Threats to fine county election officials and overturn results. Even bans on giving water to voters while they stand in line.
In addition to their nationwide efforts to limit access to the ballot, Republican lawmakers in some states are moving to gain greater control over the local mechanics of elections, from voter registration all the way to certifying results. [Emphasis added]
Restrictions on Texas voting could tighten under Republican bill advanced by Senate committee
The Texas Tribune, 3/26/2021
After more than five hours of public testimony, largely in opposition, a Texas Senate committee advanced a wide-ranging elections bill Friday night that would further tighten the state’s already restrictive voting rules and clamp down on local efforts to make it easier to vote. [Emphasis added]
Resources & Research
Democratic Municipal Officials, February 8, 2021
- Derek Green (Councilmember At-Large, Philadelphia, DMO President)
- Mark Pertschuk gives presentation on 2021 preemption landscape.
- Ian Baltutis (Mayor, Burlington, NC) & Lauren Kuby (City Councilmember & Vice Council Chair, Tempe, AZ)
State Preemption: An Emerging Threat to Local Sugar-Sweetened Beverage Taxation
Eric Crosbie, Jennifer L. Pomeranz, Kathrine E. Wright, Samantha Hoeper, and Laura Schmidt. American Journal of Public Health, Published online ahead of print February 18, 2021: e1–e10. https://doi.org/10.2105/AJPH.2020.306062)
Jennifer Falbe, Sabrina S. Adler, and Christina A. Roberto. American Journal of Public Health, 2021;111(4):546–548. DOI: https://doi.org/10.2105/AJPH.2021.306163
The Rise of Legislative Anti-Democracy
Zachary Roth, The Brennan Center, 3/12/2021
The last decade has seen a wave of “preemption” laws, in which states, often responding to progressive local reforms, have curtailed the power of cities and counties to regulate in certain areas, threatening one of the few remaining venues — local government — where citizens can still make their voices heard.
Plastic Bags & Other Disposable Containers
Pandemic-Paused Plastic Bag Bans Ripped Anew by Critics
Preemption Looms Large
Americans for Nonsmokers’ Rights, 1/21/2021
High Alert: FL, TX, LA, WV, TN, KS, IA, MO
NPMA Legislative Day 2021: PCOs, Lawmakers to Meet Virtually
National Pest Management Association (NPMA), February 2021
For PMPs who operate in states without preemption, they are challenged with having to comply with different laws and regulations in each of the communities they service. In addition to the six states that do not have preemption, efforts are being made in Colorado, Connecticut, Florida, Massachusetts, Minnesota, New York and Wisconsin to repeal preemption.
Health Care & COVID
In addition to shielding certain COVID-related activities from liability, HHS has issued PREP Act declarations authorizing certain individuals to perform COVID-related clinical activities that are normally restricted to certain classes of licensed health care professionals under state law.
Is Your Mandatory Covid-19 Vaccine Program Legal? Watch this Case
Bloomberg Law, 3/22/2021
The gravamen of the complaint, filed in the U.S. District Court for the District of New Mexico, is that the detention center’s mandate is preempted by the FDCA. More specifically, the lawsuit alleges that the “state” action is preempted by federal law relative to emergency use authorizations (EUA), and because the vaccine was approved under an EUA, federal law dictates it cannot be mandated.
Background: In 2018, the California Legislature buckled under industry pressure (see “Jerry Brown dined with soda industry representatives ahead of tax ban deal”) and agreed, in secret, to preemption in exchange for the soda industry abandoning a broader statewide preemption initiative to limit all state and local taxation authority. There are 482 cities and 58 counties in California, but only four were able to pass soda taxes before Sacramento shut the door on new ones.
Soda taxes like those adopted in Berkeley are as much about social justice as municipal income. First, soda taxes of one cent per ounce or more can significantly reduce soda consumption and the often deadly consequences of overconsumption, especially Type 2 diabetes. Second, revenues from local soda taxes STAY in those communities, can’t be diverted by the legislature, and provide sustained support for effective health policies and programs.
The history of preemption politics in California and elsewhere illustrates how Sacramento insiders might agree to a compromise that short-changes the hundreds of communities that need both the direct health benefits and the home-grown funding that will follow a complete preemption repeal. Our elected representatives in Sacramento need to hear that we need and expect the authority to pass local taxes high enough to save lives and accomplish other key public health goals. (For more on grassroots movement building and preemption contact us at firstname.lastname@example.org, www.grassrootschange.net, or 415-250-8260.)
Combatting Preemption Action Model:
Reynolds Loses Bid to Scrap San Diego Ban on Tobacco Flavors
Bloomberg Law, 3/30/2021
A San Diego ordinance banning the sale of flavored tobacco products, including menthol cigarettes, can stay in place because it isn’t blocked by federal law, a district court in California ruled in a suit by R.J. Reynolds Tobacco Co. and related companies.
Dental students lobby for dentistry during virtual Grassroots Advocacy Days
California Dental Association, 3/22/2021
CDA and a coalition of more than a dozen leading health care organizations are co-sponsoring AB 1163 by Assembly-member Adrin Nazarian (D-Van Nuys) to remove the statewide ban on local sugary drink taxes. CDA has stated that AB 1163 will return power to local cities and counties, allowing them to pass such taxes if they are appropriate for their own communities.
Because the new statutes do not preempt local ordinances, employers may have compliance obligations under the state law and possibly up to 11 similar – but not identical – local ordinances in Long Beach, Los Angeles (City and County), Oakland, Sacramento (City and County), San Jose, San Francisco, San Mateo County, Santa Rosa, and Sonoma County.
Ninth Circuit decision upholds the Federal Motor Carrier Safety Administration (“FMCSA”) determination that federal law preempts California’s meal and rest break laws with respect to Department of Transportation-regulated drivers of property-carrying commercial motor vehicles.
After previous attempts failed, Fort Collins voters give thumbs up to plastic bag ban
Pending state legislation may end up preempting some portions of the local law. The state legislation would implement a broader ban on single-use plastic bags at nearly all restaurants and retailers and 10-cent fee for paper bags, effective September 2022, as well as a ban on expanded polystyrene containers at retail food establishments, effective January 2022.
Democrats try again to ban plastic single-use bags in omnibus bill, but competing bill has bipartisan support
Boulder’s assault weapons ban unenforceable for time being after district court ruling
Daily Camera, 3/19/2021
Judge Andrew Hartman on March 12 ruled that only state or federal laws can prohibit the possession, sale and transfer of assault weapons and large capacity magazines. Colorado has passed laws “that are effectively a scheme preempting local governments from enacting municipal firearms and magazine possession ordinances,” according to court documents.
Ritter: Failure to stop mass shootings doesn’t mean we should stop trying
The Denver Post, 4/2/2021
[A]s memories faded, many of the bills that had been shelved in 1999 after Columbine, were resurrected, debated, and passed into law. Among them was a statewide preemption law that kept local governments from regulating the purchase, possession and sale of firearms in any manner that was more restrictive than state law. [Emphasis added]
Citing a 2003 state law enacted by a GOP legislature that preempts cities and towns from restricting assault weapons, Judge Andrew Hartman ruled Boulder’s “provisions are invalid and enforcement of them is enjoined” because only state or federal law can enact common-sense measures against mindless mass murder that work and over 80% of America supports.
Opinion: A 1662 CT precedent for local control should not be violated in 2021
Greenwich Time, 3/19/2021
Bill to preempt unwritten local gun rules gets panel’s nod
Florida Politics, 4/1/2021
A bill to prevent local governments from creating their own unwritten gun policies is on to its final House panel.
Do state legislators want to do your city’s job? Yes, often
Tampa Bay Times, 3/26/2021
Florida Court Rejects Local Rules Meant to Quell Gun Violence
Courthouse News Service, 3/25/2021
As the U.S. reels from a pair of mass shootings, a Florida appeals court upheld an order striking down local gun-control measures.
Florida Lawmakers Again Looking At Vaping Regulations
CBS Miami, 3/24/2021
The American Lung Association, the American Heart Association, and other health-care groups… oppose the House and Senate measures…
The organizations… object to parts of the bills that would take away local governments’ control over marketing, sale, or delivery of nicotine products, a move known as “preemption.”
New legislation could allow local governments to ban cigarettes in public parks
Florida lawmakers want to let local government regulate smoking in parks but not mask wearing
Tampa Bay Times, 3/17/2021
TALLAHASSEE — Local government can ban a person sitting outside a Little League baseball dugout from smoking, but if that person is asymptomatic for COVID-19, local government cannot make them wear a mask amid a deadly pandemic.
Florida Alert! Pro-Gun Bills Still Moving Forward
SB-1884, Preemption of Firearms & Ammunition by Sen. Ray Rodrigues (R), stops local governments and state agencies who willfully violate the firearms preemption law from forcing people to sue them over violations then withdrawing illegal ordinances or regulations once suit is filed in order to make the lawsuit moot… On Tuesday, 3/29/2021, SB-1884 PASSED the Senate Judiciary Committee by a vote of 6 to 4. [Emphasis added]
Florida’s nanny-state Legislature | Editorial
Tampa Bay Times, 3/29/2021
As Mary Ellen Klas of the Times/Herald Tallahassee bureau reported this week, the Legislature is considering a growing list of bills aimed at preempting local authority.
Florida Alert! 5 Good Bills PASS Florida Committees so-far this Week
NRA-ILA, 3/17 2021
SB-1884 Preemption of Firearms & Ammunition by Sen. Ray Rodrigues (R) — Stops local governments and state agencies who willfully violate the firearms preemption law from forcing people to sue them over violations then withdrawing illegal ordinances or regulations once suit is filed in order to make the lawsuit moot… On Tuesday, 3/16/2021 the bill PASSED 6-3 in Senate Community Affairs Committee…
HB-1409 Preemption of Firearms & Ammunition by Rep. Cord Byrd (R) [House companion bill to SB-1884] — On Wednesday 3/17/2021 the bill PASSED 10-6 in House Civil Justice Committee
Black voters broke barriers in 2020. They say GA’s new voting law is ‘a slap in the face’
The Telegraph, 3/29/2021
Although Mike Kaplan hasn’t finished reading the entire bill, the chair of the Macon-Bibb County Board of Elections said he is concerned about taking power away from the local Board of Elections to run their own elections…
Election bills ditch no-excuse absentee repeal, Sunday voting ban
Rome News-Tribune, 3/22/2021
Georgia bill clears Senate that would let state take over local election boards
Atlanta Journal-Constitution, 2/24/2021
Critics said the state already has the authority to investigate and hold local officials accountable. They say the proposal would usurp local control of elections guaranteed in the Georgia Constitution.
Letters: Licensing keeps guns out of dangerous hands. Indiana legislation would end it.
Lawmakers should support local control they preach
kpc news, 2/14/2021
An omnibus bill, HF 756 also makes the permit to acquire handguns optional… and expands the state’s preemption law by adding “carrying” to the list of actions that localities are prohibited from regulating. [Emphasis added]
Allow local governments to set standards on tobacco | READER COMMENTARY
The Baltimore Sun, 3/19/2021
Reversing tobacco preemption in Maryland and ending the sale of flavored tobacco are two policies with the same goal: protecting the health and futures of our youth from Big Tobacco’s predatory tactics. Both should have the support of the our state lawmakers.
“Having that fee in place is a deterrent. And it helps consumers get in that habit of bringing their own bags in, but again, during COVID, that is not something that employees or consumers feel comfortable with,” Locklair said.
She also wants to see statewide preemption in the legislation, so all of Maryland has to follow the same rules. [Emphasis added]
Mississippi Senate Passes Strong Preemption Reform Bill on 35 to 16 Vote!
Preemption laws serve to prevent localities, and with this bill, state agencies, from enacting prohibitions that conflict with state law. Further, SB 2107 will curb localities’ authority to restrict the possession, transfer, sale, transportation, storage, display, carry, or use of firearms during declared civil emergencies. [Emphasis added]
Push to limit local health orders during pandemics in Missouri dies on bipartisan vote
The Joplin Globe, 3/25/2021
JEFFERSON CITY, Mo. — More than a year into the COVID-19 pandemic in Missouri, a push to restrain local officials’ authority to issue restrictions in future pandemics died on the Senate floor early Thursday morning after it failed to receive enough votes needed to win initial approval.
Letter to the Editor: Response to Tobacco 21 bills in legislature
The Missouri Times, 4/2/2021
When it became apparent in late 2019 that President Donald Trump would sign the bill that included a provision for raising the minimum age to purchase tobacco to 21, the industry placed a high priority to get local preemption bills passed in state legislatures.
Montana bill would ban local communities from ordinances on vaping
Independent Record, 3/31/2021
Letter to the editor: What happened to local control?
In our nation’s long debate about how strong the federal government should be and how much power should rest with state and local governments, Republicans have been fiercely for local control.
The Assault on Local Control
Flathead Beacon, 2/26/2021
Flurry of New Hampshire House bills takes aim at municipal authority
New Hampshire Business Review, 4/5/2021
The New Hampshire House will be taking up a handful of bills this week aimed at asserting the power of the state while shrinking the authority of its municipalities.
New Hampshire: House to Vote on Pro-Gun Bills
House Bill 307:… This piece of legislation aims at strengthening New Hampshire’s preemption law to protect New Hampshire gun owners. Further, HB 307 allows anyone adversely impacted by an ordinance or regulation to file suit against the county, city, town or government entity that enacted the violation (after notice is given).
House Bill 307: … This piece of legislation aims at strengthening New Hampshire’s preemption law to protect New Hampshire gun owners. Further, HB 307 allows anyone adversely impacted by an ordinance or regulation to file suit against the county, city, town or government entity that enacted the violation (after notice is given). [Emphasis added]
Editorial: As written, NM sick-leave bill hurts business recovery
Albuquerque Journal, 2/13/2021
Business leaders sought in vain to include several fair amendments – exemption of very small businesses, …and a statewide preemption of local paid leave legislation…
North Dakota House advances bill barring government from mandating masks
Grand Forks Herald, 2/22/2021
Restrictions on health orders reach too far
Morning Journal, 3/22/2021
What’s perhaps even more concerning is the fact that the bill will limit the ability by local health departments to act quickly in health emergencies. Essentially, this bill will ban local boards of health like those in our very area from enacting specific health orders like closing schools or prohibiting public gatherings.
OKC officials object to measure weakening local health department
The Oklahoman, 3/1/2021
Bend-La Pine Schools community, local politicians mull over potential state guns bill
The [Bend] Bulletin, 3/26/2021
The Bend-La Pine Schools community, as well as local city and county government officials, had mixed reactions to a bill passing through the Oregon Legislature that would ban firearms from state buildings and potentially give more local control over concealed, permitted firearms in publicly owned spaces.
Oregon Senate approves bill banning guns in Capitol, state buildings
While public buildings in Oregon already prohibit guns, state law has long carved out an exception for people who hold concealed handgun licenses, or CHLs. SB 554 would eliminate that exception in state buildings, eliminate a state preemption that currently stops local entities from enacting their own bans, and increase the cost of a CHL. [Emphasis added]
Pittsburgh supports Philadelphia in lawsuit against state Firearm Preemption Laws
Pittsburgh city officials this week threw support behind a lawsuit filed last year in Philadelphia challenging Pennsylvania’s Firearm Preemption Laws, alleging they keep the city from combating gun violence and “have forged a state-created danger.”
“And they’re all replaced almost immediately. While we need our state and federal partners to help us with that, we also need the authority to pass our own laws that reduce violence. The Pennsylvania General Assembly has not only refused to enact sensible gun regulations at the state level, but it also continues to block cities from enacting their own local gun laws,” Kenney said. [Emphasis added]
R.I. Bills Address Solar Panel Recycling, Plastic Bag Ban
House bill H5358… includes a provision that prevents municipalities from adopting more stringent bag bans. [Emphasis added]
Smoking ban in city parks, playgrounds makes safe sense
Citizen Tribune, 4/2/2021
Two years ago, the state gave cities and counties authority to ban tobacco products in playgrounds, but that legislation didn’t go far enough. Tobacco products may still be used elsewhere in parks, and vaping products were not included. [Emphasis added]
Anti-smoking groups come out against state bills on e-cigarettes
Tennessee Outlook, 3/30/2021
A group of public health organizations joined together on Tuesday to oppose state legislation they say would strip local governments’ ability to regulate vaping.
Kingsport to ban smoking at city playgrounds, Sullivan already approved ban
Times News, 3/22/2021
Kingsport is making this move in response to the Tennessee Legislature recently passing Public Chapter 529, which allows municipalities to impose such restrictions.
Editorial: Smoking should be banned throughout our parks
Two years ago, the state gave cities and counties authority to ban tobacco products in playgrounds, but that legislation didn’t go far enough. Tobacco products may still be used elsewhere in parks, and vaping products were not included.
Courthouse News Service, 4/1/2021
SHERMAN, Texas — The city of Dallas’ paid sick leave ordinance is preempted by the Texas Minimum Wage Act, a federal court in the state ruled. The ordinance required employers in the city to provide employees with one hour of paid sick leave for every 30 hours worked.
Texas Court Upholds San Antonio’s Sick and Safe Leave Ordinance Injunction
On March 10, 2021, the Texas Fourth Court of Appeals affirmed the District Court of Bexar County’s entry of a temporary injunction preventing the City of San Antonio’s sick and safe leave ordinance from taking effect. The appellate court reasoned that San Antonio’s ordinance was preempted by the Texas Minimum Wage Act (TMWA) and was thus unconstitutional.
Utah House committee advances bill to block cities and counties from creating firearm regulations
The Salt Lake Review, 2/22/2021
Amid frustrations over pandemic response, two Virginia counties want their own health departments
The Washington Post, 3/20/2021
Two of Virginia’s fastest-growing local jurisdictions are working to create their own health departments, a step that could move most of Northern Virginia out of the state system on key aspects of public health, including coronavirus vaccinations.
CASEY: New restrictions bring measure of gun sanity to Roanoke
The Roanoke Times, 3/27/2021
Our View: Keep election control local
Control over local elections should remain with local leaders and communities.
A Ninth Circuit Panel Finds No ERISA Preemption Of Seattle Health Care Ordinance
Appeals court says Edmonds can’t enforce safe storage gun law
State law “unambiguously” pre-empts the city from enacting its own firearm rules, the panel concludes
Power Grab: Charleston eager to take away local control
News and Sentinel, 3/30/2021
SJR 1 is grandly titled “Protection of the Right to Bear Arms Amendment.” It would amend the state constitution to prohibit “county or municipal governments from enacting ordinances, acts, resolutions, or rules that are contrary to, or more restrictive than, state law governing the sale, transfer, possession, use, storage, taxation, registration, licensing, or carrying of firearms, ammunition, or firearm accessories.”
Walters: Local sales tax debate one worth having
The Gazette, 2/28/2021
“County and municipal levy limits have restricted the ability of our local governments to sustain basic county and municipal services—including roads, fire protection, social services, and police protection. … [T]he Governor proposes to expand revenue options available to counties and municipalities—but only if residents give their approval.
Gun bills playing outsized role in already gun-friendly Wyo. Politics
It was just the second week of session, and his Senate Judiciary Committee was already hearing its fourth bill of the year related to firearms: Senate File 137 – Firearms preemption-amendments and applicability.