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Marching Towards Autocracy: How States are Failing Democracy– And What We Can Do About It

June 28, 2021

Editorial credit: Shutterstock.com

Lawyers Defending American Democracy initially launched its efforts with an Open Letter identifying actions by the federal government that were weakening basic principles of America’s vibrant democracy. As assaults on the Constitution and the rule of law continued, LDAD developed an in-depth Compendium that identified core constitutional values and principles that were being undermined. 

As LDAD has always emphasized, the challenges we identify are not about disagreements over policies or political ideology. Rather, as noted in that first Compendium: “The values and principles threatened go much deeper, and are much more important than politics, policy differences, and any politician’s self-interest. They’re the bedrock of our American, constitutional, democratic form of government.”


The Movement of Anti-Democratic Impulses into States

Today, these threats are proliferating as we witness efforts and actions that threaten democracy moving into the State legislatures. Anti-democratic impulses have resulted in newer State laws and policies that are already having a profoundly negative impact on the democracy we collectively cherish and on the rule of law that is foundational to protecting a society from injustice.

The explosion of these restrictive laws in the past several years threatens basic democratic principles that have guided this Nation since its inception. 

As a result, State and local governments have become the new battlegrounds for attacks on democracy and the rule of law. These attacks often disregard the will of the majority, ignore principles of accountability and open government, and remove or undermine fundamental individual rights.  


Highlights of Marching Towards Autocracy

In order to increase awareness of these new attacks and the evolving battlegrounds, LDAD has developed a new Compendium, providing detailed and easily accessed information about recent State laws that demonstrate moves towards an autocratic form of government. This document is entitled Marching Towards Autocracy: How States are Failing Democracy – And What We Can Do About It.

We conducted this analysis through the lens of key principles that have become core to the way in which our country develops an educated citizenry, promotes tolerance and justice in a complex and diverse society, and commits to complying with applicable Constitutions and laws.

These eight fundamental democratic principles that are now under assault include:

  1. Ballot access; 
  2. Fair treatment of all members of society;
  3. Respect for individual autonomy;
  4. Access to free, uniform, and high-quality education;
  5. Fact-based decision-making; 
  6. Appropriate restraints on the exercise of state power;
  7. Support for and confidence in public and private institutions, businesses, and associations; and 
  8. Governmental respect for systemic checks and balances.

We focus on those principles because they are critical components of our democracy and the rule of law. We recognize that there are other principles that could be included and, indeed, our research confirmed the passage of additional laws that could be added to the existing anti-democracy enactments we have identified. We believe, however, that the principles and examples included are a comprehensive assessment sufficient to convey the significance of the current challenges we face.


Six States Where Rights are Under Attack

LDAD views this effort as the first phase of a longer-term process to identify the full range of States that are dangerously ignoring fundamental principles of democracy in their enactments. Marching Towards Autocracy focuses this initial analysis on six States in which the specific attacks, in the form of laws and regulations, have been particularly forceful. 

These States are:

  • Alabama; 
  • Arizona; 
  • Florida;
  • Iowa;
  • Tennessee; and 
  • Texas 

Our list will be expanded and this Compendium will be updated over time. 

The analysis is presented in eight sections; each of which identifies the particular Constitutional principle at risk and why it is important. Then, for each of these states, we catalog the undemocratic law or policy enacted, followed by a brief explanation of why it matters. 


Our Ongoing Duty to Protect Constitutional Principles

Our democracy is a delicate arrangement that depends for its survival on widespread and voluntary adherence to established, long-standing rules and norms, and on leaders who support them. To ignore these rules, to violate these norms, and to support leaders who urge us to do so has ruinous potential for our democracy and for us all.

We are all stakeholders in the protection of our democracy. That obligation requires that we understand what is happening in our government at all levels. 

Maintenance of our democracy requires development of an educated citizenry, promotion of tolerance and justice in a complex and diverse society, and compliance with the rules and norms that hold us together. We have an obligation to learn about and then take actions to protect these constitutional norms and principles. 

Accordingly, changing the current path many states are on, and working to stop proposals and enactments that have the potential to further affect our democracy in a profoundly negative way, will require focused attention, commitment, and community engagement. It is, therefore, critical that we continue to shine a light onto those measures that undermine centuries of progress in this country. 

Then it will be up to all of us to do the work needed to educate our communities about why democracy matters and why we have a critical stake in ensuring its future. 

We also urge all lawyers to use their voice and influence in these troubled times and to uphold their oath to defend the Constitution. LDAD developed the Democracy Commitment as a blueprint for lawyers to use their status, skills, expertise, and convening authority to engage the profession and collaborate with civic and governmental leaders to protect democracy.

We urge you to think about what you can do, and what you can encourage others to do as well.  

We must all become leaders in this effort to protect these cherished principles.

Section 1: Ballot Access

A vibrant democratic society is one where the electoral process is accessible to all eligible voters, including flexibility that ensures inclusion of underserved communities.

 

ALABAMA

What Happened
Why it Matters
Redistricting: In 2021 the legislature redrew the state’s seven congressional districts in response to the 2020 census. Despite the fact that the white population of the state had decreased to 63% of the population, the legislature created six supermajority white districts and just one black majority district. Milligan v. Merrill, 582 F. Supp. 3d 924, 997 (N.D. Ala. 2022). In 2022, a three-judge panel concluded the redistricting map likely violated the Voting Rights Act and issued a preliminary injunction blocking implementation of the plan. Id. In June 2023, the Supreme Court affirmed that Alabama “likely violated Section 2 of the Voting Rights Act” and held, for the first time, that the Constitution authorizes “race-based redistricting as a remedy for state districting maps that violate § 2” of the Voting Rights Act. Allen v. Milligan, 143 S. Ct. 1487, 1516-17 (2023).

In response to the Supreme Court ruling the Alabama legislature drew a new map which again included only one majority-Black district, ignoring explicit instructions from the federal courts. On September 5, 2023 the three judge panel, noting it was “deeply troubled” that the legislature had ignored the Court’s ruling, entered an order striking down the new map and appointed a special master to draw a new map of the state’s congressional districts. The Supreme Court declined to review the decision.
Alabama has a long history of racial discrimination in almost every aspect of voting and elections, including barriers to registration, access to the polls and redistricting. The fact that the political leadership of the state continues to advance such practices in clear contravention of federal court orders is, as the District Court noted, “deeply troubling.” We will never achieve our democratic ideals unless and until all members of society have an equal and effective voice in our elections and political system.
Absentee Ballots: In 2023 Alabama passed a law which makes it a felony for individuals and organizations to assist a voter with an absentee ballot. Opponents claimed the bill was unnecessary and would create an additional barrier for seniors, the blind, disabled and those with limited literacy to exercise their right to vote.Although the stated purpose of the law was to protect the integrity of the voting process, no evidence or examples of voting fraud were presented to the legislature.

 

ARIZONA

What Happened
Why it Matters
Voting: In recent years, Arizona legislators have filed over one hundred bills seeking to restrict access to in-person, mail-in and early voting as well as to constrain voter registration and ballot initiatives. In 2023 the legislature passed and sent to the Governor more than thirty bills that would have in some way made it more difficult for citizens to vote. Governor Hobbs vetoed 28 of these election bills. Among the vetoed bills included two bills which would have effectively banned electronic ballot tabulators in the state and one which would have required the state to withdraw from the Electronic Registration Information Center (ERIC), an opt-in coalition of states that share information to help maintain accurate voter rolls. Also vetoed were a bill designed to make early voting more difficult and a another which would have reduced the number of signatures election officials could use to verify a ballot signature. It is clear from the tenor and number of bills one or both branches of the Arizona legislature passed that the legislators were seeking to make it more difficult for Arizona citizens to vote. There was no showing that any significant number of improper ballots had been cast in prior elections or that any of the statutes that facilitated voting by all Arizona citizens were, or had been, prone to abuse. The efforts were intended to limit voting, and it is difficult to think of a more direct assault on our democracy than that.
Voter Suppression: In 2022 Arizona enacted two significant voter suppression laws. HB 2492 required voters to provide proof of citizenship or residency documentation (DPOC) in order to vote in presidential elections or vote early by mail for any office. A second bill (HB 2243) allowed for voter purges and required the cancellation of voter registrations where county recorders had “reason to believe” voters were not citizens if they had not provided “satisfactory evidence” within 35 days of being notified. On February 28, 2024 a federal District Court Judge issued a 109 page decision which struck down key provisions of both laws. The court determined that requiring individuals who register to vote using the state form to include the voter’s state or country of birth violates the Materiality Provision of the Civil Rights Act. The court also struck down the provision of H.B. 2243 that allows county recorders to cancel a voter’s registration if they have “reason to believe” they are not a U.S. Citizen. In addition, the court found that the state’s requirement to provide documentary proof of residence for federal elections violates federal law. The court also expanded the list of documents that can be used to satisfy residency requirements. There was no documented basis or justification for either of these laws. No testimony or other evidence was presented demonstrating that any person who was not eligible to vote had, in fact, voted in any election. It appears the legislative intent was simply to suppress the vote or, more precisely, suppress the vote of a targeted segment of voters.

 

FLORIDA

What Happened
Why it Matters
Election Laws: In April 2023, the Florida legislature created comprehensive and onerous new election requirements that will significantly undermine ballot access and the right to vote. Among other things, the rules: contain a reduced window for requesting a mail-in ballot; allow voters to personally pick up a mail-in ballot only if they are unable to go to an early voting location or their assigned Election Day polling place; deny a mail-in ballot request if any first-class mail to the voter is returned as undeliverable; block ballots from being counted if two or more mail-in in ballots are returned in the same envelope. It also eased campaign finance reporting requirements for candidates and political committees. Ch. 2023-120 LOF These measures make it more difficult for people to vote, particularly the elderly, the infirm, those who live in rural districts, and those whose jobs would prevent them from taking the time needed to stand in long lines at the polls on election day. The law was designed to make it difficult for third-party voter registration organizations to be successful. Moreover, these measures were enacted in the absence of any evidence that they were necessary to make elections more secure.

 

IOWA

What Happened
Why it Matters
Voting: Following a record turnout in November 2020, the Iowa legislature passed a comprehensive voting law in February 2021 which restricted every method of voting. 2021 Senate File 413. The new law: prohibits anyone other than the voter from returning an absentee ballot; requires receipt of mailed ballots by the time polls close; reduces the early voting period from 29 to 18 days; reduces the period for requesting an absentee ballot; closes polls an hour earlier; reduces from 3 to 2 hours the amount of time an employer must allow employees to vote; and requires election commissioners to adopt a purging process to remove from the voting rolls voters who fail to vote in a single election.These new restrictions are, pure and simple, efforts to restrict full voting and, perhaps except for requiring the voter to return his or her own absentee ballot, have no conceivable relation to voting security. The purging requirement is also inconsistent with the controlling federal law, the National Voter Registration Act.

 

TENNESSEE

What Happened
Why it Matters
Voting: Tennessee’s restrictive voting laws impose heavy and sometimes insurmountable burdens on voting by people who have been convicted of a crime in Tennessee or elsewhere. For conviction of some felonies, Tennessee imposes a lifetime voting ban. For conviction of other felonies, voting is barred until completion of the sentence and all forms of probation and parole, payment of any fines and fees associated with the conviction, payment of all outstanding child support, and completion of a cumbersome voting restoration process.As a result of these laws, 8% of the entire Tennessee population and 20% of the Black population are disenfranchised. Consequently, Tennessee historically has had a very low voter turnout rate overall. It was fifth lowest in the nation in the 2020 general election. Repeated efforts to amend these restrictive provisions have consistently failed.

 

TEXAS

What Happened
Why it Matters
24 Hour Voting: Harris County is the largest county in the state with a history of support for Democratic candidates. It had long authorized 24-hour voting to accommodate shift workers. Following the 2020 election, the Legislature eliminated 24-hour voting. 2021 Senate Bill 1.No alleged fraud or other justification was offered by the proponents in support of this repeal. The legislative change reduces the likelihood that shift-workers would be able to get to the polls and cast their vote. The legislation was intended to disenfranchise Democratic voters.
Voting by Mail: Voting by mail is limited in Texas to those over sixty-five, persons out of the county on election day and those with a disability or illness that prevents them from voting in person. Senate Bill 1 imposed new ID verification requirements for those seeking to vote by mail.These new restrictions, along with the elimination of 24-hour voting and drive through voting, significantly reduce the ability of many people to vote, including the elderly and those with disabilities that could impact their access to the polls.
Vote by Mail Applications: The Legislature made it a felony for election officials to mail an application to vote by mail to someone who did not request the application; it also imposed other restrictions on access to applications. Senate Bill 1There is no sound reason for this restriction, which simply amounts to a further constraint on the ability of individuals to vote by mail. There is no sound reason for this restriction, which simply amounts to a further constraint on the ability of individuals to vote by mail. In 2023 the U.S. District Court for the Western District of Texas granted a Permanent Injunction enjoining state officials from enforcing the provisions of S.B. 1 which require officials to reject mail-in ballot applications and mail-in ballots based on errors or omissions that are not material in determining whether voters are qualified under Texas law to vote or cast a mail ballot.
Local Election Administration: The Legislature eliminated the appointive position of elections administrator in Harris County, thus requiring the county clerk and the county tax collector to oversee the voting process in addition to their other duties. Senate Bill 1.Elimination of the election administrator position means that no one person in the county has primary responsibility for ensuring that elections in this populous county run smoothly, without interference, and in a manner that ensures easy access to the ballot.
Drive Through Voting: Harris County instituted drive through voting in 2020 to safely conduct an election during a pandemic. Over 127,000 Harris County voters voted at one of ten drive through voting sites in the 2020 election. In 2021 the legislature prohibited drive through voting. Senate Bill 1.Again, there is no sound reason for this new voting prohibition. There was no evidence of any fraud or other misconduct by those who utilized this voting option in 2020.

Section 2: Fair Treatment of All Members of Society

A well-functioning democracy seeks to eliminate, not create, laws that marginalize or scapegoat members of society because of their ethnicity, gender, religion, or other personal characteristics. 

 

ARIZONA

What Happened
Why it Matters
DEI: The Arizona Senate passed legislation that would have prohibited all public entities from spending money on or requiring a DEI program. While the legislation was pending, the Arizona Board of Regents and three public universities announced that they were discontinuing all DEI programs at public universities and schools.DEI programs are designed to ensure fair and equal treatment. This legislation sends a strong signal that the state is not interested in the subject of ensuring equal and inclusive treatment for all residents, thus giving those who would discriminate or marginalize others a green light to proceed. Moreover, the simple fact that the legislation was pending had a chilling effect on existing programs.

 

FLORIDA

What Happened
Why it Matters
Stop WOKE: Florida enacted legislation prohibiting the state's public colleges and universities from spending funds on programs and related efforts to promote diversity, equity, and inclusion. It imposed harsh penalties, including termination and loss of state funding, for educators who violate the law. The Stop WOKE Act Ch. 2022-72 LOF, restricts how race may be discussed in schools by barring the teaching of theories that systemic racism, sexism, oppression, and privilege are inherent in U.S. institutions and were created to maintain social, political, and economic inequality; and prohibiting any teaching that could make students feel they bear personal responsibility for historic wrongs because of their race, color, sex, or national origin. It specifically targets and places vague restrictions on educators’ ability to teach and discuss concepts around the legacy of slavery in America, white privilege, and anti-racism. Ch. 2023-82 LOF; Ch. 2023-38 LOFThe restrictions violate the First and 14th Amendments by imposing viewpoint-based restrictions on educators and students, as well as the Equal Protection Clause because it was enacted with the intent to discriminate against various groups. Likewise, they violate core concepts of academic freedom to determine who may teach, what may be taught, how it is taught and to whom. The Eleventh Circuit has left in place a preliminary injunction blocking the enforcement of the Act pending a decision on the merits.
Anti-Riot Act: In the wake of the George Floyd murder, the Governor proposed and Florida enacted comprehensive legislation known as “Combatting Public Disorder Act” to curtail public demonstrations and violent assembly. The legislation redefines a “riot” and enforces stricter penalties on those deemed rioters. It also gives the Governor veto power over city and county budgets. Ch. 2021-6 LOFThe law is a transparent attack on communities of color who protested in the wake of George Floyd’s murder at the hands of a police officer. The law was declared unconstitutional as an assault on the First Amendment rights of free speech and assembly, as well as a violation of due process; a temporary injunction was issued, and the case is pending in the 11th Circuit Court of Appeals.
Immigration: Florida’s sweeping new law prohibits undocumented residents from being licensed to drive in the state. Among other actions, the law requires hospitals to collect information on immigration status, creates penalties for hiring undocumented immigrants, expands employment verification screening requirements to all employers with 25 or more employees, invalidates out-of-state drivers’ licenses for undocumented immigrants in Florida, increases funding to relocate or bus migrants to other part of the U.S., and expands the authority of the Florida Department of Law Enforcement to carry out immigration enforcement. The legislature appropriated $12 million in 2023 to hire private contractors to search for migrants and transport them to states with a history of electoral victories for Democrats. Ch. 2023-40 LOFThese changes will have far-reaching health and other impacts on the families of immigrants, beyond the undocumented immigrants it targets. Many families include people of mixed immigration status, including U.S. born children. Criminal penalties are imposed on anyone who transports any person with unsettled immigration status. Travelers to Florida face criminal penalties for visiting their families, doing their jobs, seeking medical care, and engaging in other everyday activities. People are afraid and are leaving the state. Immigrants play a significant role in Florida’s workforce, particularly in certain industries such as agriculture and construction, but employers are reporting a growing shortage of workers due to out-migration to other states.
Immigration: Following examples from Texas and Arizona, in September of 2022, Governor DeSantis used Florida taxpayer monies to transport forty-eight recently arrived migrants at the U.S. Southwest border via chartered planes to Martha’s Vineyard, MA. They were given gift cards and promised well-paying jobs, free housing, and transportation upon arrival. Instead, they were abandoned with no place to stay.Most migrants arrive at the border fleeing dangerous conditions and hoping to seek humanitarian protection under U.S. law. Luring vulnerable migrants onto planes to another state with false promises of food, shelter, or jobs is not only a political ploy, but it also creates a humanitarian crisis.

 

IOWA

What Happened
Why it Matters
Education – Race and Gender: The legislature enacted a law prohibiting discussion of a swath of subjects related to race and gender. The restrictions prohibit training or curriculum dealing with “specific defined concepts” that include systemic racism in Iowa or the United States, as well as related concepts. 2021 House File 802. td>Banning responsible discussion of topics like these, particularly in the latter elementary grades when students are beginning to formulate their ideas regarding fairness, justice, and equality, makes it much more difficult to maintain a society in which ethnicity, gender, religion and other personal characteristics and beliefs are treated with respect.

 

TENNESSEE

What Happened
Why it Matters
First Amendment – Race: During a debate in the Tennessee legislature on gun-control measures, three legislators vigorously voiced opposition to the pending measure. Two of those - both Black legislators - were expelled by their Tennessee legislative colleagues; the White legislator was not.It is difficult to imagine a more blatant display of racism than the differing results that followed similar activity by the Black and White legislators. That kind of behavior by the state’s law-making body sends a clear, statewide signal that racial discrimination is welcome in the State of Tennessee.

 

TEXAS

What Happened
Why it Matters
DEI: In 2023, the Texas legislature enacted legislation prohibiting funding for a diversity, equity and inclusion office or employee at any public institution of higher education.These programs are designed to ensure that all are treated fairly. Such legislation sends a strong signal that the state is not interested in ensuring fair and inclusive treatment for all, thus giving those who would discriminate or marginalize a green light to proceed.

Section 3: Respect for Individual Autonomy

Respect for individual autonomy in matters that involve deeply personal choices distinguishes a democracy from societies in which those with power determine how individuals and families should live.

 

ALABAMA

What Happened
Why it Matters
Transgender Healthcare: In 2022 Alabama enacted the Vulnerable Child Compassion and Protection Act which makes it a crime for healthcare providers to provide gender affirming care to transgender minors. The bill also compels school administrators to “out” transgender students to their parents. The bill was premised on numerous legislative “findings,” most of which are either false or clearly inconsistent with widely-accepted clinical standards and practices. The legislation was enacted over the strenuous opposition of multiple medical organizations, including the AMA and the American Academy of Pediatrics.Criminalizing accepted medical procedures and treatments irresponsibly interferes with the patient/physician relationship and deprives teens suffering from gender dysphoria of essential healthcare. Contrary to the legislative “findings” the treatment modalities for gender dysphoria, including puberty blockers, have been thoroughly tested in clinical studies, approved by the FDA and have been shown to be safe and effective.
Bathrooms: In 2022 Alabama passed HB 322 prohibits transgender youth from using restrooms that align with their gender identity in public K-12 schools. Tracking Florida’s Don’t Say Gay law the bill also prohibits any discussion of gender identity in all Alabama public elementary schools.As with all the transgender bills, HB 322 reflects an unjustified hostility and insensitivity to the medical reality of gender dysphoria. No evidence was presented to the legislature that an affirming response to a student’s gender dysphoria had produced any adverse consequences. The legislation served no purpose other than to stigmatize and marginalize transgender teens.
IVF Embryos: In 2024 the Alabama Supreme Court held that IVF embryos stored in a cryogenic nursery are “children” for purposes of recovery under the Alabama Wrong Death of a Minor Act. Lepage v. The Center for Reproductive Medicine, PC, So. 3rd (Ala. 2024). The Alabama statute does not provide that an extrauterine embryo is a child. The terms “child” and “children” are not defined in the Act. And no court in the country had previously held that an extrauterine embryo was a child. Two weeks later the legislature passed and Governor Ivey signed legislation granting civil and criminal immunity to patients and IVF providers. While some IVF providers in the state have resumed services, legal experts cautioned that further legal challenges are likely given the provision in the Alabama constitution which protects the rights of “unborn children.”The decision has been widely criticized by elected officials in both parties. And IVF and reproductive specialists have universally condemned the premise of the decision. As Dr. Pietro Bortoletto, Director of Reproductive Surgery at Boston IVF Fertility Clinic put it, “a 2-cell organism kept at -120 degrees Celsius is not an unborn child.” As a consequence of the decision most IVF clinics in Alabama shut down immediately, leaving many patients in the middle of their course of treatment stranded. The concurring opinion of the Chief Justice is particularly concerning as it was unabashedly premised upon Christian theology, referencing God or the Creator no less than 44 times.
Abortion: In 2019 Alabama passed one of the nation's most restrictive abortion laws, the Human Life Protection Act. The law bans abortion at any stage of pregnancy, with no exceptions for cases of rape or incest, only allowing abortions if the fetus has a lethal anomaly or delivery presents a serious health risk to the mother. The law became effective in 2022 after the Dobbs decision of the Supreme Court. Thereafter, the three remaining abortion clinics in Alabama all closed. There is no medical or legal justification for these draconian laws and, as a result, they amount to an unwarranted state intrusion in a matter which should be accorded individual autonomy and privacy, and intrudes on the patient-provider relationship and confidentiality.

 

ARIZONA

What Happened
Why it Matters
Transgender Students: The Arizona legislature passed six bills that, among other things, prohibited use of nicknames or pronouns at school that differed from the gender assigned the student at birth, cut off all funding for any institution hosting any performance for minors if an actor is dressed to appear as their opposite sex, and created a private right of action against any person of the opposite sex whom they encounter in a multi-occupancy restroom in a public school.The Governor vetoed all six bills but the legislative effort signified state hostility to gender differences that are real and deeply personal, thereby giving permission to residents of the state to demonize transgender youth, permission that is incompatible with democratic ideals.
Abortion: In 2022, Arizona enacted a law that makes it a felony for a physician to perform an abortion after 15 weeks of gestation. 2022 Senate Bill 1164. The only “emergency” exceptions are in the event the physician certifies, and reports to the state, that the abortion was necessary to avert the death or “substantial and irreversible impairment of a major bodily function” of the mother. Arizona has also enacted a law that makes it a felony to perform an abortion if the provider knows the abortion is sought because of a genetic abnormality of the fetus. 2021 Senate Bill 1457.There is no medical or legal justification for these draconian laws and, as a result, they amount to an unwarranted state intrusion in a matter which should be accorded individual autonomy and privacy, and intrudes on the patient-provider relationship and confidentiality.

 

FLORIDA

What Happened
Why it Matters
Gender Affirming Medical Care: Florida enacted legislation that prohibits gender affirming medical care to minors in the form of hormone replacement therapies, puberty blockers, or any surgeries with the goal of sex-reassignment. The legislation can also result in child abuse charges against parents and doctors if they provide treatment to transgender youth. It attacks the ability of people of all ages to access medically necessary health care simply because those people are transgender. It prohibits Medicaid from covering gender-affirming care for youths or adults. Under rules adopted by the Florida Board of Medicine, Florida doctors could lose their medical licenses if they order gender affirming care. Ch. 2023-90 LOFThese provisions embody a value judgment that isolates Florida residents and fails to acknowledge both biological reality and the autonomy with which all members of a democratic society should be allowed to freely live their lives. Criminalizing accepted medical procedures and treatments irresponsibly interferes with the patient/physician relationship and will result in needless suffering. This legislation is an extreme, unprecedented attack on transgender people, their health care, and the families and medical providers who care for them. It gives Florida the unprecedented ability to strip parental rights from parents who support their transgender children. It disrespects the rule of law and the rights of parents.
Bathrooms: Under the banner of “Safety in Private Spaces,” Florida requires the exclusive use of restrooms and changing facilities, based on gender at birth, in state and local government buildings, schools (public and private), detention facilities and colleges. LGBTQ+ and transgender are the targets and are left with few options for personal safety. The bathroom bill was signed into law on the same day as new restrictions on gender-affirming treatment for minors, drag shows, and which pronouns can be used in schools, and defines male and female as the biological sex at birth. The law creates a new civil action and fines to enforce compliance. Ch. 2023-106 LOFThe legislation applies to all K-12 schools – public, private, and charter – as well as colleges and universities. It criminalizes the act of entering a bathroom or changing facility that does not correspond to the gender assigned at birth. This is another effort to target transgender people and marginalize those who identify as LGBTQ+.
Drag Shows: The Anti-Drag Show Bill was adopted in 2023 and expands state law to include vague language that can be used to attack drag shows, even though Florida law already prohibits exposing minors to shows considered sexually explicit. The law provides criminal penalties and authorizes the state to revoke establishments’ licenses to do business. Ch. 2023-94 LOFThis legislation is a thinly veiled attempt to stigmatize and marginalize the LGBTQ+ community.
Abortion: In 2022, Florida enacted a law banning most abortions after 15 weeks, with exceptions if the procedure is necessary to save the pregnant woman’s life, prevent severe injury, or if the fetus has a fatal abnormality. It does not allow exemptions in cases where pregnancies are caused by rape, incest, or human trafficking. It replaces a law that allowed abortions until 24 weeks of pregnancy. . Ch. 2022-69 LOF An even more restrictive bill, the so-called “fetal heartbeat law” was adopted in 2023. That law bans abortions at six weeks, and creates new exemptions for rape and incest up to 15 weeks of pregnancy. The 6-week ban will only go into effect 30 days after the Florida Supreme Court rules on a case brought by abortion providers challenging the state’s ban on abortions after 15 weeks as a violation of decades of established law within the state constitution Ch. 2023-21 LOF. Oral arguments in that case were held in September of 2023.

A proposed amendment to the Florida Constitution to ensure abortion rights in Florida is underway by way of a ballot initiative. It is a multi-step process including a requirement that the Florida Supreme Court, in a gatekeeper role, review the wording of the proposed amendment to determine if it is clear and limited to a single subject. The Florida Attorney General has notified the Court that she will oppose placing the amendment.
The 2022 and 2023 laws violate constitutional guarantees of privacy and denies pregnant people access to needed health care as well as the ability to control their bodies, lives, and futures.

Florida amended its state constitution in 1980 to create a right to privacy – to be left alone and free from governmental intrusion in one’s private life. Article 1, Section 23. The Florida Supreme Court, in a unanimous decision, has ruled that the constitutional right to privacy applies to women seeking to terminate a pregnancy. Now, the state is asking the Court to ignore decades of precedent and limit that right to “information” privacy.

Based on the status of litigation at the time of this writing, abortion remains legal in Florida until 15 weeks of pregnancy; if the state is successful in its efforts and the Florida Supreme Court finds the 2022 law to be constitutional, the 6-week ban would be effective 30 days after a Florida Supreme Court ruling.

 

IOWA

What Happened
Why it Matters
Sex, Gender, and Health Education: Iowa enacted a law restricting discussion of LGBTQ+ issues in public schools and restricting discussion of a wide range of topics that bear on other aspects of sexuality. Senate File 496. The law prohibits any discussion of gender or LGBTQ+ issues in K-6 classrooms. In addition, teachers are required to review every book in school libraries for “obscene” or “sexually explicit” materials. Any parent can seek removal of any educational material in any classroom or library. The law also prohibits any school activity or instruction that involves sexually explicit material without a parent’s written consent. Although it does not prohibit health education classes from discussing sexually transmitted diseases, the law deletes specific references to teaching about AIDS, HPV, and vaccines to prevent HPV. This overbroad approach to LGBTQ+ serves only to marginalize members of the LGBTQ+ community and prevents the understanding that is essential for full social integration and acceptance. The legislation thus embodies an exercise of state power to determine who should be treated as full members of society and who should be excluded or otherwise ostracized. Beyond that, giving parents the right to seek removal of any school or library books effectively gives individual parents the right to determine what the children of other parents can read. It is difficult to think of a less democratic approach to public education. On December 29, 2023 the U.S. District Court for the Southern District of Iowa issued a Preliminary Injunction enjoining the state from enforcing the provisions of Senate File 496 which (1) required the removal of books from schools which were not “age appropriate;” and (2) prohibited any instruction relating to gender identity or sexual orientation to students in kindergarten through grade six.
Abortion: In a one-day special session called by the Governor in July, the Iowa legislature passed a fetal heartbeat law, which effectively bans abortion after six weeks – before many women know they are pregnant. 2023 House File 732.There is no medical or legal justification for this draconian law and, as a result, it amounts to an unwarranted state intrusion in a matter which should be accorded individual autonomy and privacy. Litigation has resulted in an injunction against the law taking effect; the matter is before the Iowa Supreme Court.

 

TENNESSEE

What Happened
Why it Matters
Gender Affirming Care: This year, Tennessee adopted legislation that prohibits medical personnel or parents from providing or facilitating gender affirming care (surgeries or hormone treatments) for minors if the purpose of the treatment is to treat gender dysphoria. 2023 Public Ch. No. 1. Such treatments are permissible if provided to cisgender minors. Another enactment effectively prohibits official recognition of LGBTQ+ individuals. 2023 Public Ch. No. 486.These provisions embody a value judgment that isolates many Tennessee residents and fails to acknowledge both biological reality and the autonomy with which all members of a democratic society should be allowed to freely live their lives. Criminalizing accepted medical procedures and treatments will result in needless suffering and irresponsibly interferes with the patient/physician relationship. Further, the fact that the prohibition does not apply to cisgender minors further discriminates against and marginalizes transgender youth.
Abortion: Last year Tennessee enacted legislation that prohibits receipt of abortion-inducing drugs by mail and requires physicians to schedule a follow-up visit 7-14 days after a woman has taken the drugs.There is no medical reason for these laws and, as a result, they amount to an unwarranted state intrusion into a matter of deep individual autonomy and privacy.

 

TEXAS

What Happened
Why it Matters
Transgender Medical Care: In 2023, Texas enacted legislation that prohibits certain medical treatments for transgender individuals under eighteen, including puberty-blockers and hormone treatments to slow the onset of adolescence. Senate Bill 14. Doctors who prescribe these forms of healthcare to transgender minors could lose their medical licenses, even though the same treatments can legally be prescribed for cisgender individuals. For example, some minors are prescribed such treatments because puberty began too early.These provisions embody a value judgment that isolates many Texas residents and fails to acknowledge both biological reality and the autonomy that all members of a democratic society should be accorded. Criminalizing accepted medical procedures and treatments will result in needless suffering and irresponsibly interfere with the patient/physician relationship.
Abortion: In 2021, Texas enacted a trigger law (HB 1280) to take effect in the event the Supreme Court overruled Roe v. Wade. The statute banned all abortions; the only exceptions were to preserve the life of the mother or to avert a substantial impairment of a major bodily function of the mother. There is no exception for pregnancies due to rape or incest. Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S., 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022), the Texas abortion ban took effect on August 25, 2022.

In addition to the trigger law, Texas also enacted a separate vigilante or bounty hunter abortion law that incentivizes citizens with a $10,000 cash “bounty” if they successfully sue anyone who has performed an abortion or assisted a woman in obtaining an abortion. The bounty is characterized as “statutory damages.” Doctors and abortion providers, drivers who provide transportation to a clinic, or those who help fund an abortion, for example, could all be liable for damages and legal fees if they are sued. And anyone can file a lawsuit, regardless of where they live or whether they have any connection to the defendant or the woman who obtained the abortion. 2021 Senate Bill 8
There is no medical or legal justification for this draconian law, and, as a result, it amounts to an unwarranted state intrusion in a matter which should respect individual autonomy and privacy.

A statutory structure that incentivizes vigilante actions to pursue damages against private citizens, family members, health care providers and others for obtaining or assisting in a medical procedure is antithetical to our democratic ideals. By design, there is no limit to the potential reach of those who may be held liable – anyone with whom the woman spoke or confided regarding her pregnancy could be sued for aiding and abetting the abortion. Doctors and other health care providers who did not participate in the abortion service but simply counseled the woman could are also subject to liability.

Section 4: An Accessible, Free, and High-Quality Education is a Fundamental Value of a Free Society  

Education systems must be safe and secure for all children, encourage open inquiry and access to information, and be unbounded by predetermined areas of permissible inquiry or threats of retribution to educators.

 

FLORIDA

What Happened
Why it Matters
Universal Vouchers for K-12: Florida significantly expanded its voucher program in 2023 to include all K-12 students whether in public, home, private or charter schools, regardless of family income or needs. These taxpayer funds can be used for buildings and capital expenses other than tuition. Ch. 2023-16 LOF and Ch. 2023-69 LOFThe massive transfer of taxpayer dollars can cripple public education by forcing taxpayers to fund two separate school systems. It may violate Florida’s constitutional mandate for a “uniform, efficient, safe, secure and high-quality system of free public schools.” Teacher certification, school accreditation requirements, and public accountability applicable to public schools do not apply to private and charter schools. Private and religious schools can and do discriminate in admissions on a variety of bases including gender, ability, religion, and income.
“Don’t Say Gay.”: In 2022 Florida enacted comprehensive restrictions on how, what and when health and sex education, including teaching about gender identity and sexual orientation can be taught in public schools. That law was expanded in 2023 to include students in K - 8 grades, defining “sex” and restricting use of personal pronouns. It created an administrative complaint procedure for parents to raise objections to teaching they deemed objectionable and established the right to sue in civil court to obtain injunctions, damages, and attorneys’ fees. Teachers who violate the various bans are at risk of having their licenses suspended or revoked. 2022 Ch. 22 LOF and Ch. 2023-105 LOFCreating outright bans on subjects or areas of inquiry and giving parents a right to sue to stop the teaching of subjects they deem objectionable, is to set boundaries on areas of inquiry in a manner that is inconsistent with a robust democracy.
Attacks on Teachers’ Unions: Florida revised its Public Employees Relations Act: creating new limitations related to dues, registration requirements, and certification procedures; prohibiting automatic payroll deductions; and requiring costly audited financial statements. These limitations were adopted after teachers’ unions did not support Governor DeSantis in his election. Ch. 2023-35 LOFThe teachers’ unions were targeted for opposing the Governor’s significant changes to the State’s education system, while other unions that were not critical of the governor during his campaign were not penalized. A law that impedes valid active contracts with universities and school districts secured under collective bargaining agreements appears to be based on retribution. Florida is one of the only states where the right to join a labor union is enshrined in the state constitution.
Diversity, Equity, Inclusion: Legislation was adopted in 2023 with far reaching consequences for Florida’s state colleges and universities. It prohibits expending any state or federal funds to promote, support, or maintain any program or campus activity… that advocate[s] for diversity, equity, and inclusion or engages in political or social activism. The legislation also prohibits teaching identity politics, or theories that systemic racism, sexism, oppression, and privilege are inherent in U.S. institutions and were created to maintain social, political, and economic inequality. Other provisions strip university departments of agency in hiring faculty, change accreditation procedures, and requires periodic reviews of faculty tenure, among others. Ch. 2023-82 LOFThere is a fear that the provisions in this legislation negatively impact one of the best ranked education systems in the world. Others are concerned that tenured faculty will be targeted over political affiliations or expressions. The law restricts educators and students from engaging in scholarship about issues related to the legacy of slavery, white privilege, and gender. Imposing viewpoint-based restrictions that are vague and discriminatory raises First and 14th Amendment issues.
New College of Florida: Governor DeSantis in January of 2023, as part of his “war on woke,” instituted a hostile takeover of New College of Florida, a small, but top ranked public liberal arts school, by appointing a majority of new members of the board of trustees, ousting the president, and installing close allies as President and as General Counsel. The chief diversity officer was fired, DEI programs were abolished, and five faculty members were denied tenure despite approvals at every point in the process. In addition, the gender studies program was abruptly shuttered, members of the leadership team were fired, and returning students were housed in off-campus hotels while giving newly recruited athletes space on campus. Since this restructuring, the school has been in turmoil, experiencing canceled classes, severe housing problems, and vacancies created by the large number of professors who have since resigned. The purges at New College are part of a larger trend in Florida by the Governor and other political leaders to reshape public education by making dramatic changes to the faculties, curriculum, and tenure at state colleges and universities based on ideological and political considerations.
Book Bans: A chilling triad of new laws working in concert threaten to undermine the quality of education in Florida’s public schools. The STOP Woke Act Ch. 2022-72 LOF prohibits certain instructions on race and diversity; the “Don’t Say Gay” law prohibits instruction on sexual orientation and gender identity in K – 3rd grade, Ch. 2022-22 LOF; and a third facilitates book bans Ch. 2022-21 LOF. The latter gives parents and county residents increased access to the process of selecting and removing school library books and instructional materials. All books in Florida schools must be cataloged and reviewed by a district employee holding a valid educational media specialist certificate. School districts are required to pull text when a complaint is filed and keep them off shelves during the review process. School districts are preemptively pulling books off the shelves while the review process takes place. and hundreds have been removed in response to complaints, or out of fear and confusion.There has been a marked escalation of book bans and censorship in classrooms and school libraries across the U.S. Much of it has been led by a handful of individuals (who often do not have children attending the targeted schools) and through coordinated group efforts. Driven by a vocal minority demanding censorship, and facing threats, including felony charges and political pressure, teachers, librarians, and school administrators have preemptively removed books in response to complaints. Parents, authors, and a publishing company have challenged the actions of a local school board removing books from libraries for ideological reasons as a violation of the First Amendment. The federal district court judge recently wrote that those who want a book removed for personal reasons should not have the sole say over library books on school shelves. Florida and Texas are leading the states in banning books.

 

IOWA

What Happened
Why it Matters
Education – Race and Gender: In 2023 the Iowa Legislature passed legislation that includes detailed restrictions and prohibitions regarding teaching or classroom discussion of gender identity or sexual orientation. 2023 Senate File 496. The legislation went beyond Florida’s “Don’t Say Gay” restrictions and includes new requirements for school libraries, school curriculum, school transparency and health screening. The law requires school districts to notify a student’s parents if any employee of the district believes the student has expressed a gender identity that is different from the biological sex listed on the student’s birth certificate. In addition, the legislation requires school districts to periodically review every book available to students in the classroom or their libraries, publish a list of all such material online, and establish a process for any parent to seek the removal of any educational material from the classroom or the library.Teachers understandably objected to the mandate that they “rat out” a student to the district because of what may have been a private, sensitive discussion with the student. This reporting obligation will undermine or destroy the sense of trust that teachers seek to establish with their students. The new right of any parent to object to any book or other material is completely standardless and, worse, gives individual parents veto power over what all children in the classroom can learn. Such measures are simply incompatible with the broad range of inquiry that should be the hallmark of education in a democracy.
Vouchers: In 2023 Iowa enacted a universal school voucher program for all K-12 students regardless of income. The voucher will be equal to 100% of the state per pupil aid to education. Starting in 2025, the program will be available to all Iowa students regardless of family income. 2023 House File 68.The massive transfer of taxpayer dollars will potentially cripple public education by forcing taxpayers to fund two separate school systems. Iowa law requires public schools to have open meetings, maintain and produce public records, and have elected citizen oversight. Teacher certification, school accreditation requirements, and public accountability applicable to public schools do not apply to private schools. Private and religious schools can and do discriminate in admissions on a variety of bases including gender, ability, religion, and income.

 

TENNESSEE

What Happened
Why it Matters
Book Bans: In 2022, the Tennessee Legislature passed a law that allows a politically appointed commission to order the removal of books from school libraries that it deems “inappropriate” and unsuitable for, or otherwise inconsistent with, the educational mission of the school. 2022 Public Ch. No. 1137.Allowing a political body with no educational training, skills, or background to censor books and to use broad and formless standards like “appropriate” for doing so is simply an invitation to censorship based on political views, and a reflection of state-mandated limits on areas of permissible inquiry.
Education – Race and Gender: In 2021 the legislature passed a law which significantly restricts what public school teachers can say in the classroom about racism, white privilege, and unconscious bias. 2021 Public Ch. No. 493. Among the fourteen concepts that teachers cannot discuss: that one race bears responsibility for past actions against another; that the United States is fundamentally racist; and that a person is inherently privileged or oppressive due to their race. In 2022 the legislature extended the law to all public institutions of higher education in Tennessee. 2022 Public Ch. No. 818.As with the Texas legislation discussed above, these laws will prohibit or constrain honest discussions regarding historical instances of white supremacy, systemic racism, or voter suppression. Regardless of historical accuracy, a teacher may be subject to discipline if a student complains that they felt shame or guilt because of a class discussion.

 

TEXAS

What Happened
Why it Matters
Education – Race and Gender: In 2021 Texas enacted a law that significantly restricts how teachers may discuss subjects relating to race and gender in all primary and secondary schools. House Bill 3979. The bill includes a lengthy list of “prohibited concepts” including, for example, any discussion that may cause a student to feel anguish or guilt on account of their race or gender. In 2023 the Texas legislature expanded these provisions to all public institutions of higher education. Senate Bill 16. The breadth of the “prohibited concepts” will necessarily constrain teachers from teaching or having discussions regarding historical instances of white supremacy, systemic racism, or voter suppression. Banning honest and responsible discussion of topics like these, particularly in the latter elementary grades when students are beginning to formulate their ideas regarding fairness, justice, and equality, makes it much more difficult to maintain a society in which ethnicity, gender, religion and other personal characteristics and beliefs are treated with respect.

Section 5: Fact-Based Decision Making

A thriving democratic society requires leaders to openly debate and engage the public in discourse based on facts and science.

 

ARIZONA

What Happened
Why it Matters
Vaccine Mandates: In 2021, the Legislature enacted a law that prohibits the state or any county, city, or town from requiring that a person be vaccinated against COVID-19 or be vaccinated to enter a business establishment. The law also prohibits any business from denying entry to the business premises to a person who has not been vaccinated. 2021 Senate Bill 1824 Section 12.The Legislature’s contention that vaccines and masks were unnecessary and ineffective directly contradicted the vast weight of scientific and medical authority and the Legislature offered no facts, studies, or other scientific opinion to support the bill.

 

FLORIDA

What Happened
Why it Matters
COVID: In 2021 the Florida legislature prohibited public and private employers, governmental entities, and educational institutions from imposing vaccine mandates. School districts (K-12) are prohibited from requiring masking. Parents and students may sue school districts that require masking and recover attorneys’ fees. The Florida Legislature based its action on claims that vaccines and masks were ineffective and unnecessary measures to control the spread of COVID-19 at a time when it was spreading rapidly. Ch. 2022-272 LOF. The 2021 bill expired in June of 2023 and was replaced by a new law that adopts the prior restrictions and prohibits any business operating in Florida from requiring any person to provide proof of vaccination, post-infection recovery from COVID-19, or undergo a Covid-19 test, among others. It also authorizes the Attorney General to investigate and impose financial penalties Ch. 2023-43 LOF.The government’s contention that vaccines and masks were unnecessary and ineffective directly contradicted the vast weight of scientific and medical authority. Neither the Governor nor the Legislature offered any facts, studies, or other scientific opinion in support of this legislation. During the height of the pandemic, Florida’s Surgeon General, with the support of the Governor, stopped providing daily updates to the public. In November of 2023, Florida agreed to settle a lawsuit alleging violations of citizens constitutional right to information in public records. After denying that any data existed, the State agreed to provide detailed COVID-19 data and critical public health data, including vaccination counts, case counts, and deaths.
Florida’s Surgeon General is an avowed critic of COVID-19 vaccinations and masking requirements. He and Governor DeSantis, without a factual basis, recently urged people under sixty-five not to take the newest 2023 boosters, defying U.S. Food & Drug Administration, and other health care professional recommendations.The Florida Surgeon General personally altered the findings in the study to suggest vaccines were dangerous out of political concerns rather than scientific facts. In addition, advocating medical policy without a scientific basis, and contrary to contravening facts, prevents fact-based decision-making.

 

IOWA

What Happened
Why it Matters
COVID: In 2022, Iowa enacted a law that prohibits schools, day care centers, and institutions of higher education from requiring students and teachers to get a COVID-19 vaccine. 2022 House File 2298.The law contravenes CDC and CMS guidance as well as guidelines issued by reputable medical organizations. Clinical studies have consistently demonstrated the safety and efficacy of the COVID-19 vaccines.
Vaccine Mandates: In 2022, Iowa enacted a law that establishes broad, subjective exemptions for employees to assert in response to an employer vaccine mandate. House File 902. The law contravenes federal vaccine mandates including, for example, the CMS vaccine mandate for medical providers, the ADA vaccine waiver, and the federal vaccine mandate for all employees of federal contractors and subcontractors.As above, the legislation contradicted the vast weight of scientific and medical authority, and the Legislature offered no facts, studies, or other scientific opinion to support the legislation.

 

TENNESSEE

What Happened
Why it Matters
Vaccine and Mask Mandates: In 2021, Tennessee passed a law that prohibits an employer from requiring proof of vaccination from its employees. In addition, public employers are prohibited from imposing a mask mandate. House Bill 9077.This legislation was enacted notwithstanding strong opposition from the business community and various medical organizations. The law directly contradicts the federal Centers for Medicare & Medicaid Services (CMS) vaccine mandate, which requires the staff of certain Medicare or Medicaid providers and suppliers to be fully vaccinated against COVID-19.

 

TEXAS

What Happened
Why it Matters
COVID: In 2023, Texas passed a law that prohibits any Texas governmental entity from imposing a mandate that (1) persons must wear a mask or face covering to prevent the spread of COVID-19; (2) persons must be vaccinated to prevent the spread of COVID-19; or (3) requires the closure of any private business or any public or private school. Senate Bill 29The bill was opposed by the Texas Medical Society and other medical organizations on the ground that it was needlessly stripping Texas authorities from responding to a pandemic with tools that have been shown to be effective in preventing the spread of COVID-19 and other conditions.

Section 6: Appropiate Restraints on the Exercise of State Power

A well-functioning democracy depends on the ability of its citizens to rely on government to protect them from overreaching state power and from disproportionate penalties for proscribed conduct.

 

FLORIDA

What Happened
Why it Matters
Florida State Guard: Based on complaints from the Governor that the federal government had not provided adequate staffing for the National Guard, the dormant Florida State Guard was activated for the first time in 75 years to be a civilian disaster/emergency response entity. The initial implementation has been heavily militarized. The language is vague and the purposes are not clearly defined. One concern is that the Guard could be asked to undertake police-style operations. The Guard reports directly to the Governor (rather than the Department of Military and Veterans Affairs). The 2021 unit was a 200-person volunteer force with a $3.5 million budget but was increased to 1,500 people and $108 million appropriation in 2023. The deployment has been mired in internal turmoil with some recruits complaining that it has become heavily militarized, requiring volunteers to participate in marching drills and military-style training sessions on weapons and hand-to-hand combat. Ch. 2023-167 LOFA state military unit answerable solely to one person and not a part of an established governmental unit poses a distinct threat to a democratic system.
Elections Police: The Legislature in 2022 created one of the first agencies in the country solely dedicated to election crimes and voter fraud with a budget of $2.6 million. The Office of Election Crimes and Security is housed within the Department of State. One of its first acts was to arrest twenty people charged with casting illegal ballots in the 2020 election. Many were former felons who were barred by law from casting ballots; yet most had registered to vote only after being wrongfully assured that they could do so under a constitutional amendment adopted in 2018 that restored voting rights to 1.4 million felons who had completed their sentences. Almost all the cases were dismissed. Ch. 2023-2 LOF, Ch. 2022-73 LOFElection fraud is exceedingly rare in the U.S. and Florida. An AP investigation found fewer than 475 potential cases of voter fraud out of 25.5 million ballots cast. Falsely claiming fraud is another way to restrict voting rights.
Public Records – Open Meetings: The Legislature created a “closed” process for applicants for the presidency of state universities and colleges by exempting any personal information that could identify applicants from Florida’s public records and open meetings laws. The practical impact was felt immediately as a number of state universities were then undergoing presidential searches. In one instance, a presidential search for one of the State’s flagship institutions culminated in a single finalist (an elected official) being put forward without ever identifying any other applicants and with no input from or interaction with the faculty and students prior to the selection. All of it was done behind closed doors with no public input. Ch. 2022-15 LOFEvery person in Florida has the constitutional right to any public records made in connection with the official business of any public body. This measure violated those rights and created a seismic shift in the way Florida colleges and universities conduct presidential searches. It was seen as a part of the governmental overreach into issues of academic freedom and a larger effort to remake higher education.
Public Records: The Legislature adopted a first-ever public records exemption for the Governor’s past and future travel records held by the Florida Department of Law Enforcement, the agency that oversees executive security. The exemption is retroactive and applies to visitors to the Governor’s office and residence. It extends to the Governor’s immediate family, the Lt. Governor, members of the Cabinet (the Attorney General, Comptroller, Commissioner of Agriculture), the Speaker of the House, the President of the Senate, and Chief Justice of the Supreme Court, among others. Ch. 2023-58 LOFThe public records exemptions go beyond travel itineraries and prevent the release of information about where the governor went, who attended events, and who visited the Governor’s Mansion, contrary to the state’s long-standing commitment to the public’s right to know what goes on in connection with the official business of any public body.
Public Records: Governor DeSantis invoked “executive privilege” to conceal public records relating to judicial selections from public scrutiny. In a public interview about appointments to the Florida Supreme Court, the Governor refused to reveal the names of “six or seven pretty big legal conservative heavyweights” he had asked to advise him on possible appointments because “it’s private.” A public records request was ignored and litigation followed. The Governor asserted that the records were covered by “executive privilege.”The trial court ruled in favor of the Governor, and the case is now on appeal. If the Governor prevails, it will constitute a judicially created public records exemption and expand the concept of executive privilege beyond anything ever asserted in Florida.

 

IOWA

What Happened
Why it Matters
Free Speech: In 2021, the Iowa legislature enacted a law that restricts the exercise of rights protected by the First Amendment. 2021 Acts Ch. 183. The law significantly enhances penalties for participating in a non-violent protest, including an expansive definition of disorderly conduct, provides limited immunity for the driver of a vehicle that injures a person protesting on a public street, and criminalizes a motorist’s failure to stop upon the order of an unmarked police car.The ability to engage in peaceful protests is not only protected by the First Amendment but, from the Boston Tea Party onward, has played a significant role in shaping and improving public policy and the ability of citizens from all walks of life and all levels of influence to make themselves heard. That right and ability lies at the heart of our democratic society and preservation of that right is essential.

7: Supporting Public Confidence in Public and Private Institutions, Businesses and Associations 

Strong public and private institutions, businesses, and associations are pillars of our democracy.

 

FLORIDA

What Happened
Why it Matters
Disney War over “Don’t Say Gay.”: At the insistence of Florida Governor DeSantis, the Legislature stripped Disney World, a private company, of its statutory authority to govern its entertainment complex in central Florida and ordered a civil and criminal investigation of the company. Those measures were a response to the vocal support Disney World’s CEO gave to the LGBTQ+ community and his criticism of Florida’s recently enacted “Don’t Say Gay” law. Lawsuits have been filed by the new Disney Board and by Disney World and are pending in state and federal courts.Disney accuses the Governor and his allies of violating its First Amendment rights with a targeted campaign of government retaliation. Democracy is imperiled when the government targets private enterprises for their expression of views on issues of public importance and for conducting their operations in a manner that reflects those views.
Environmental, Social and Corporate Governance: Governor DeSantis issued an executive order in 2022, instructing the Florida State Board of Administration to bar state pension fund managers from making fiduciary decisions based on Environmental, Social, and Governance (“ESG”) criteria. The order required the Florida Retirement System Defined Benefit Plan to prioritize the highest returns without consideration of ESG standards. It would prohibit the state from providing ESG-related information to credit-rating agencies. The bill requires that investment decisions be made “solely on pecuniary factors” and would prevent “sacrificing investment return or undertaking additional investment risk to promote any non-pecuniary factors.” Florida State Board of Administration Resolution, August 23, 2022, Updating the Investment Policies for the Florida Retirement System.ESG standards guide companies in operating in ways that minimize their environmental impact, improve relationships with employees, vendors, and communities, and govern in accordance with best practices. Companies that adhere to ESG principles of stewardship and sustainability can improve their own performance and increase opportunities for public trust and confidence among their communities and other stakeholders. It is also their democratic right to operate in such a manner.
ESG: The Legislature passed a comprehensive anti-ESG bill that restricts consideration of environmental, social, and governance in retirement plans and investments of funds, financial institutions, and government contracts, among others. It expands on that earlier directive and applies to all funds invested by state and local governments. It would bar issuance of ESG bonds. Ch. 2023-28 LOFEven as the intent is to “send a message” that Florida will not engage with corporations using a “progressive ideology” or “exercising corporate activism” when issuing bonds, the impact is antithetical to democratic principles. At least forty-nine anti-ESG bills were introduced across the country in 2023, while 22 were introduced in 2022.
Abuse of Power – Prosecutorial Discretion: The Governor suspended the elected Hillsborough County State Attorney (a constitutional officer) because he signed a pledge to not prosecute people under Florida’s new abortion law or doctors who provide gender-affirming care, even though state law did not address either issue at the time. He later removed the elected Orange-Osceola County State Attorney as a “possible criminal reform prosecutor” who signed a pledge regarding gender-affirming care, and he has removed school superintendents and sheriffs who have taken positions contrary to the Governor’s agenda.This is part of a national effort to limit or void the authority of elected prosecutors in more than fifteen states. It dangerously seeks to undermine trust in independent law enforcement officials and is an overreach by the executive.

Section 8. Governmental Respect for Systemic Checks and Balances

A fundamental principle of democracy is that all branches of government incorporate and observe checks and balances across the executive, legislative, and judicial functions.

 

FLORIDA

What Happened
Why it Matters
Independent Judiciary: The Florida Supreme Court created a commission, after a request from the Speaker of the House of Representatives, to review the twenty judicial circuits to account for demographic shifts and to consider consolidating them. There is concern that this is the beginning of an effort to create districts based on party affiliations.An independent judiciary is a critical component of a governmental system of checks and balances. Creating “red” and “blue” judicial circuits will politicize the judicial circuits and undermine the public’s confidence in an independent judiciary. The commission unanimously recommended against shrinking the number of judicial circuits in the state.

 

IOWA

What Happened
Why it Matters
Checks and Balances: In 2023, Iowa enacted a 1600-page government reorganization law sought by Governor Reynolds which consolidated numerous state departments. Senate File 514. The legislation, however, gives the governor enhanced powers of appointment as well as additional control over once-independent offices and agencies with fewer checks and balances.It is more important now than ever that our governments at all levels maintain, strengthen, and observe a comprehensive system of checks and balances to assure a thriving democracy.

 

Texas

What Happened
Why it Matters
Immigration: In November 2023 Texas enacted SB 4 which authorizes local and state law enforcement to arrest, detain and remove people they suspect to have entered Texas from another country without federal authorization. The law would permit Texas judges to order a person’s deportation regardless of whether the person is eligible to seek asylum or other humanitarian protections under federal law. A federal District Court Judge enjoined enforcement of the law on the grounds that it violates the supremacy clause of the U.S. Constitution and is preempted by federal law. The 5th Circuit Court of Appeals reversed and authorized Texas officials to enforce the law pending further proceedings. The Supreme Court issued a temporary stay of the 5th Circuit ruling pending Supreme Court review. SB 4 is irreconcilably inconsistent with over a century of U.S. Supreme Court cases that hold that “[t]he authority to control immigration—to admit or exclude [noncitizens]—is vested solely in the Federal Government.” Truax v. Raich, 239 U.S. 33, 42 (1915) (emphasis added) (citing Fong Yue Ting v. United States, 149 U.S. 698 (1893)). As the District Court held, the Texas law is “patently unconstitutional.” It is essential to the success of our democracy that every branch and level of government respect the checks and balances which pervade our system of government.
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