June 3, 2023. New York Times
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Gov. Greg Abbott, Republican of Texas, is expected to sign a bill in the next few days that would make it immeasurably more difficult for cities in the state to govern themselves. The bill would strip cities of the ability to set standards for local workplaces, to ensure civil rights, and to improve their environments, trampling on the rights of voters who elected local officials to do just that.
The bill, recently approved by the Texas House and Senate, would nullify any city ordinance or regulation that conflicts with existing state policy in those crucial areas, and would give private citizens or businesses the right to sue and seek damages if they believe there is a discrepancy between city and state. That means no city could prohibit discrimination against L.G.B.T.Q. employees, as several Texas cities have done. No city could adopt new rules to limit predatory payday-lending practices. No city could restrict overgrown lots, or unsafe festivals, or inadequate waste storage. Cities would even be banned from enacting local worker protections, including requiring water breaks for laborers in the Texas heat, as Dallas, Austin and other cities have done following multiple deaths and injuries.
Business lobbyists and Republican legislators who have pushed the bill said its purpose was to rid the state of a patchwork of conflicting regulations. In fact, that patchwork largely exists only in three or four mostly Democratic cities in an overwhelmingly red state, and the bill is the latest effort by Republicans to rid the state of any policies that conflict with their hard-right agenda — even if those policies are fully supported by voters in those cities, who elect representatives to serve their interests.
Already the state won’t let cities ban discriminationagainst low-income renters, and it prohibits them from cutting their police budgets. Dozens of other bills have been introduced to restrict election reforms by Texas cities and counties, including one that would let an official, most likely a Republican, overturn election results in a single place: largely Democratic Harris County, which includes Houston. “The bill is undemocratic,” Mayor Ron Nirenberg of San Antonio told The Texas Tribune. “It is probably the most undemocratic thing the Legislature has done, and that list is getting very long. Local voters have created city charters, and I can’t imagine that they will be pleased to have their decisions usurped by lawmakers.”
By reducing the right of localities to make their own decisions, Texas has joined dozens of other states that have asserted their dominance over cities in recent years through a practice known as state pre-emption. One watchdog group has counted more than 650 pre-emption bills in state legislatures this year; the large majority have been introduced by Republican lawmakers to curb policymaking in cities run by Democrats.
It’s not a new phenomenon — city halls and state capitols have always jockeyed for authority, and in a legal showdown, the state usually wins, as the more supreme power. But conservatives used to champion ideas like local autonomy, devolution and even block grants as a way of weakening centralized control. The 20th-century movement toward “home rule,” letting localities handle most of their own affairs, was once supported by both Republicans and Democrats. What’s now become clear is that Republicans dislike local control if they are not in charge of it. The home rule movement has steadily faded in the last few decades as state lawmakers on the right have become more aggressive in invalidating the priorities of elected officials in cities, which have moved leftward in their voting patterns in recent years.
“We are seeing a real increase in the pre-emption of local authority,” said Clarence Anthony, chief executive of the National League of Cities, and former mayor of South Bay, Fla. “Local officials are elected by citizens to represent them, and they’re the ones who know what their citizens need the most. But we’ve been seeing state legislators trying to have control over local communities, and that’s not good governance at all.”
Many of the recent bills are particularly brazen in their disdain for local decision-making. The Florida Legislature passed a bill in early May allowing businesses to challenge municipal ordinances in court simply for being “unreasonable.” If they win, the businesses can collect $50,000 in attorney fees from the taxpayers if the ordinance is not withdrawn, but cities can’t collect attorney fees if they win. In Tennessee, Republicans were angry that leaders in Nashville blocked a bid to host the 2024 G.O.P. convention, so they passed a bill to shrink the size of the Nashville Metro Council and upend its voting district maps, which many residents say will dilute the political strength of minority groups. A local court put that law on hold for now, but the final outcome has not been determined.
Most of these legislative power plays follow the ideological patterns of the hard-right MAGA core within the Republican Party, which is often more visible at the state than the national level. The efforts tend to fall into the following categories:
Democracy and voting. Several states are trying to make it harder for citizens to enact laws or constitutional changes through the referendum process, after abortion-rights supporters won several ballot initiatives in 2022. In Ohio, Republican lawmakers put a measure on the August ballotthat would raise the threshold for passing a constitutional amendment to 60 percent from a simple majority, where it has been since 1912, hoping to head off organized efforts to permit abortion in the state, as well as to raise the minimum wage and undo Republican gerrymandering. (They put the measure on a low-turnout election day, rather than the better-known day in November.) Arkansas now requires signatures from 50 counties (of 75) to get an initiative on the ballot, up from 15. Anyone can propose a ballot initiative, regardless of their ideology — recent measures in Kansas and Kentucky, for example, were proposed by anti-abortion groups. (Both were ultimately rejected by voters.) Restricting these ballot measures is fundamentally about depriving voters of a way to put a check on legislators, regardless of ideology.
In addition to the Texas bills, several states have tried to usurp the role of local election boards and officials, restricting attempts to expand voting and making it more difficult for voters in urban areas, who are often people of color, to cast a ballot. One study showed that there were 244 bills introduced last year in 33 states to interfere with election administration, 24 of which passed. Republican officials in Georgia, urged on by Donald Trump, are still trying to take over the election board in the Atlanta area, though a bipartisan panel recommended earlier this year that they stop.
Law enforcement and courts. Many rural legislators who live nowhere near urban areas are trying to capitalize on an exaggerated fear of crime to change the way cities enforce the law and prosecute criminals. In Mississippi, new laws allow the state to take over policing and the court system in Jackson, which is more than 80 percent Black, but nowhere else. The N.A.A.C.P. immediately sued the state after the laws were enacted in April, saying the laws discriminate against Black citizens and erode their political power. A new law in Georgia creates a commission with the power to remove local prosecutors. One elected district attorney there, Fani Willis of Fulton County, is investigating Mr. Trump over possible election fraud.
Guns. Only a handful of states— Connecticut, Hawaii, Massachusetts, New Jersey and New York — allow cities to regulate firearms. The other 45 have enacted either extreme or limited forms of pre-emption that reserve this power to the states. This effectively means that cities in those states must accept the same attitudes around the use of guns as rural areas, even if voters might have different attitudes and would prefer different laws. Some states, including Florida and Kentucky, have gone so far as to impose fines or criminal liability on any local official who violates the pre-emption rules.
Discrimination. Many Republican-controlled states have forbidden cities from banning discrimination against L.G.B.T.Q. employees in the workplace, and there are hundreds of bills now pending that would override local authorities in order to ban books on L.G.B.T.Q. issues and prohibit drag-queen shows, even if those communities want them. Arkansas and Tennessee already prohibit cities from enacting anti-discrimination protections for L.G.B.T.Q. people, and Texas is one of several states that appears to be heading in the same direction. Many states are also telling local school boards to change their curriculums to limit classroom discussion of slavery, racial prejudice and the civil rights movement.
There are cases where pre-emption laws are in the public interest: for example, when it becomes necessary for states to prevent their cities from creating or perpetuating injustices, to prevent discrimination and help citizens achieve fundamental rights like equal access to housing, employment and the ballot. New York State did the right thing recently by proposing a law to get cities and towns to build more housing for families that are being priced out by restrictive zoning rules, but backed down when suburban towns protested on infringements to their autonomy. California was more successful in acting to remove local zoning laws to foster more low-income housing and increase density around transportation hubs.
But the vast majority of the pre-emption bills and laws in the last few years do not meet that test. They undermine fundamental principles of equality as well as access to the ballot and fair representation.
Some cities, including Nashville, Cleveland and Coral Gables, Fla., have fought back and won in court; in Maryland, Florida and several other states, Democrats have joined Republican moderates to beat back some of these bills. But in many other states, the will of the people in these cities is being silenced. They and their representatives will have to use every legal means available to be heard.