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THE 19TH: State legislatures in 2021: What to expect on trans rights, abortion rights, voting rights and more

This story was originally published by The 19th.

As Democrats try to figure out what their slim majorities in the House and Senate mean in Washington, Republicans at a number of state legislatures around the country are setting up battles over abortion rights, freedom of speech, health care, LGBTQ+ rights and voting access.

Republicans not only maintained their majorities after the 2020 election, they expanded them by flipping both chambers of the New Hampshire legislature and gaining a trifecta of power in Montana with a new Republican governor. They hold more majorities and trifectas (controlling both legislative chambers and the executive) than Democrats do, and in many states, as legislators also grapple with the coronavirus pandemic and related economic crisis, they are advancing legislation on divisive social issues.

Austin Chambers, president of the Republican State Leadership Committee, which helps GOP statehouse candidates, said shortly after the November election that his party’s majorities show that voters want the legislation Republican lawmakers are putting forward.

“I think what this comes down to is, it’s not how they run campaigns. That’s not the problem,” Chambers told reporters of Democrats. “The problem is, it’s the message that they’re pushing, and the policies that they’re putting forward.” 

Democrats, despite spending millions on statehouse races, lost seats in states including IowaOhio and North Carolina. Gaby Goldstein, co-founder and political director at Sister District, an organization that works with Democrats to build statehouse power, said there are several reasons why, potentially including the effects of gerrymandering. But Goldstein added that Democrats also have to do a better job of organizing voters to understand what’s at stake with statehouse races.

“There’s an awareness gap for down-ballot Democrats that’s going to take a long time to overcome,” she said.

Jessie Ulibarri is the co-executive director of the State Innovation Exchange (SiX), which works with state lawmakers to pass what they describe as progressive public policy. A former Democratic Colorado state senator, Ulibarri also pointed out that Democrats’ state-level work, whether in the minority or the majority, has been crucial in shaping the federal policy that is expected from the Biden administration.

“We remain hopeful, because we’re at a precipice of transformation in this country, where we see the federal government talking about the kinds of things that states have enacted or have been fighting for for many years,” he said.

Many state legislatures are now in session and will be during the first half of the year. (All legislative bodies have their own rules on how they meet and vote on bills, and some are in session year-round, with periodic breaks.) The pandemic has forced many lawmakers to meet virtually and limited public access to many statehouses, adding a challenge to advocacy groups’ efforts to organize protests that can often be a powerful visual in opposing legislation.

Here are some bills introduced in recent weeks:

Trans rights

In his first day in office, President Joe Biden signed an executive order to expand LGBTQ+ protections. In statehouses, bills are advancing that aim to restrict transgender youths’ access to health care and their ability to play sports.

In Montana, a Republican lawmaker has introduced anti-trans bills that would ban transgender youth from participating in school sports consistent with their gender identity and would ban doctors from providing certain gender-related medical treatment to transgender youth.

Legislators have filed at least seven anti-trans-athlete bills in states including OklahomaSouth Carolina and North Dakota, according to a tracker by Freedom for All Americans and Equality Federation, organizations that advocate for nondiscrimination protections for LGBTQ+ people. Separately, lawmakers have introduced at least 10 anti-trans health-care bills in states including AlabamaMississippi and Missouri.

The American Civil Liberties Union, which tracks anti-LGBTQ bills, has warned it will file litigation if the bills in Montana are signed into law.

“The message should be, ‘Okay, take a breath, and keep moving,’” said Vivian Topping, director of advocacy and civic engagement at Equality Federation, who encouraged people to get to know their state legislatures and find the best methods for speaking out against anti-LGBTQ+ bills. “We still have work to do, and the Biden administration is not going to stop state legislatures from introducing these bills and from pushing them in local communities. So we can’t let up.”

Lawmakers filed sports-related anti-transgender bills in more than a dozen states last year, but only Idaho’s governor signed a bill into law. A federal judge has blocked it from taking effect amid litigation.

Meanwhile, mostly Democratic lawmakers in more than 10 states, including in ArizonaMississippi and Nebraska, have filed at least 20 bills that would add protections for LGBTQ+ people, according to a running tally of legislation.

Abortion rights

Reproductive health advocacy groups had already predicted that statehouses in 2021 would be on the frontlines of the decades-long debate over abortion access, especially with a more conservative U.S. Supreme Court in place.

Similar abortion bans have ended up in litigation in recent years. Some lawmakers have expressed a desire for at least one lawsuit to end up before the Supreme Court, in an effort to challenge the landmark Roe v. Wade decision that legalized abortion nationwide. Biden and Vice President Kamala Harris offered support for codifying Roe v. Wade in a statement released on the 48th anniversary of the ruling.

According to a 2019 Pew Research Center survey, most Americans (61 percent) believe abortion should be legal in all or most cases. The same survey said that among Republicans and those who lean Republican, 62 percent believe abortion should be illegal in all or most cases. 

More than 100 bills have been introduced in statehouses in the past few weeks that target abortion access, according to a tally by Planned Parenthood, which provides women’s health services, including abortions. More than four dozen propose near total bans of the medical procedure.

“I would caution people who think that politics is about to get boring, because that is exactly the opposite of our reality,” said Bonyen Lee-Gilmore, director of state media campaigns for Planned Parenthood.

One of those proposals was filed in South Carolina, where the Republican-controlled legislature is fast-tracking a bill that would effectively ban nearly all abortions at about six weeks post-fertilization. The legislation would make abortion illegal unless the life of the pregnant person is at risk, without exceptions for pregnancies caused by rape or incest. Doctors could face charges if they violate provisions of the bill.

Voting rights

Voting experts say the 2020 election went smoothly, with few problems, a testament to thousands of election officials around the country who helped run America’s decentralized election system. The expansion of options like mail-in voting and early in-person — thanks to emergency rules in response to the pandemic — led to the largest voter turnout in history. Now voting experts are closely monitoring statehouses for legislation that could either restrict or expand access to the ballot box in future elections.

In May, then-President Donald Trump expressed concern that expanded mail-in voting would benefit Democrats, and his party has generally resisted efforts to make voting easier. But at least one study released earlier this year indicated that when vote-by-mail is expanded, it “modestly increases participation while not advantaging either party.”

Amber McReynolds is the CEO of the National Vote at Home Institute, an organization that works to expand vote-by-mail systems around the country.

So far, McReynolds has tracked more than 200 bills that would expand vote-by-mail around the country. Separately, a little over 125 bills that are either “neutral, mixed or technical” have been filed. And nearly 40 have been filed that McReynolds considers aimed at restricting Americans’ ability to vote by mail. 

“A good election system must be fair, accessible, secure, transparent, equitable and reliable,” she said. “All of those values matter equally. And what we often see is, we see legislators trying to address one of them and not considering the impact on the other values. So the one takeaway is, in your states, encourage legislators to approach this in a comprehensive way that ensures all eligible voters have access in a meaningful way to the process.”

Celina Stewart, chief counsel and senior director of advocacy and litigation for the League of Women Voters, said the 100-year-old nonpartisan organization is particularly concerned about proposals that require identification to vote. She said those policies, which are already in place in at least 35 states, hurt young people, people of color, older people and people with disabilities. 

“We serve all voters, regardless of their party affiliation,” and such policies should not be viewed as a partisan issue, she said. “I think this transcends party lines.” 

Republican state lawmakers in states including Arizona, Georgia and Pennsylvania — all won by Biden in November — have already expressed support for bills that experts say could reduce voter turnout. 

In Georgia, Republicans have indicated publicly that they’re open to proposals that would end no-excuse absentee voting, ballot drop boxes and unsolicited absentee ballots, though lawmakers have not rallied yet around specific legislation.

A Republican lawmaker in the Georgia Senate said he was supportive of an idea to require voter identification to vote, explaining to Politico that his constituents “were deeply concerned” over voting bills, though he did not further specify what he meant.  

In Arizona, a Republican lawmaker has introduced a bill that would eliminate use of a permanent list that effectively allows voters to get ballots in the mail without having to sign up each election. The same lawmaker has acknowledged that the bill may not advance, and he instead wants to switch out language in the bill to propose mail-in ballots to be notarized, a requirement that voting groups have argued is burdensome for people. Courts have begun to strike down the practice.

In Pennsylvania, the Republican-controlled legislature has kicked off a series of hearings aimed at reviewing the state’s election laws. Pennsylvania’s Democratic secretary of state wrote an op-ed opposing the hearings, arguing they push conspiracy theories about the 2020 election.

Rick Hasen is an election law professor at the University of California, Irvine, and author of the 2020 book “Election Meltdown.” He expects Republicans to use the premise of voter fraud, despite a lack of proof, as the basis for legislation that limits voter turnout.

“What it shows is that at least among some Republicans, there is the continued belief that the way they’re going to win elections is not by increasing the size of the tent, but by suppressing the vote of people likely to vote for Democrats,” he said.

Freedom of speech and other issues

Lawmakers are also considering other bills this year that highlight divisions over freedom of speech, guns and the private sector.

State lawmakers in Florida, Georgia, Indiana, Montana, South Carolina, Texas, Tennessee and Utah are expected to consider bills that would allow people to carry a concealed gun without a permit, according to the anti-gun-violence group Everytown for Gun Safety. Other states, including Arkansas and North Dakota, are moving forward with “Stand Your Ground” bills that would allow people to shoot someone if they fear for their lives. Ohio’s Republican Gov. Mike DeWine signed a similar bill into law this month, and Democrats, who are in the minority in the state, have introduced legislation to repeal it.

In Texas, Republican Gov. Greg Abbott this month said the state should become a “Second Amendment sanctuary” amid new Democratic federal government control, so that “no government official at any level can come and take your gun away from you.” The governor, who has long been vocal about backing gun rights, has previously expressed support for the importance of states’ rights over policy.

While Republican state legislators say their moves are designed to protect Second Amendment rights, anti-gun-violence groups are gearing up to lobby against them. 

“Gun violence doesn’t stop during a pandemic and as our nation continues to battle the dual health crises of the COVID-19 pandemic and gun violence, state lawmakers have an opportunity to save lives by passing common-sense gun safety laws now,” said Shannon Watts, founder of Moms Demand Action, in a statement. “Unfortunately, gun lobby lackeys in statehouses across the country are moving forward on policies that are proven to increase gun violence and further embolden extremists.” 

Texas’s Abbot has also indicated support for a bill that would withhold funding from local governments that reduce funding for police departments. Similar bills have popped up in Arkansas and Indiana, with Republicans there arguing the measures are aimed at protecting public safety following support from some Democrats to redistribute police budgeting toward more social services.

In Florida, Republicans have introduced a bill with similar penalties for reducing police budgets. That bill would also clamp down on protests by imposing stricter penalties around assembling. 

Republican Florida Gov. Ron DeSantis first indicated support for the bill in the fall, after people had gathered for anti-police-brutality protests over the summer that were largely peaceful. DeSantis said his goal in advancing the legislation is public safety, though critics believe it is effectively an anti-protest measure that will disproportionately affect Black and brown people.

At least two dozen bills have been introduced this year that would add new restrictions around gathering and protests, according to a tracker by the International Center for Not-for-Profit Law. The bills vary in scope.

Lawmakers in Florida have also backed a bill that would protect some businesses and health-care providers from lawsuits related to the coronavirus pandemic. Lawmakers in at least 25 states have introduced at least 76 bills that propose protecting certain entities from coronavirus-related lawsuits, according to a tally by the National Conference of State Legislatures.

Several statehouses, including in Iowa, passed similar bills last year during shortened sessions. Iowa is home to several meatpacking plants that reported large COVID-19 outbreaks among its workers, many of whom are immigrants. Democrats who opposed the Iowa bill warned during floor debate that the legislation would make it harder for workers to prove wrongdoing.

Some of the bills don’t provide blanket immunity, specifying that lawsuits can be filed if coronavirus-related hospitalizations or deaths are involved or if a business took intentional action to make people sick.