At A Glance: Preemption and the Pandemic July 24, 2020

In This Edition: ● ’s and ’s Mayor at War over Masking Orders ● Where Other Mayors are Defying Governors over Masks ● State and Local School Boards Fight to Control School Reopenings Trending Now: ● Republican States Attorneys Generals and Legislators Continue to Challenge Executive Orders by Democratic Governors

In Georgia: Gov. Kemp v. Mayor Bottoms

The first round in the legal battle between Georgia Governor and Atlanta Mayor Keisha Lance Bottoms over the city’s authority to impose mandatory masking and stay-at-home ​ ​ orders is scheduled for next Tuesday, July 28, in Fulton County Superior Court. That’s when ​ ​ ​ ​ Judge Jane Barwick will consider the Governor’s request for an emergency interlocutory ​ ​ injunction against the city. The legal case is being closely monitored by government officials ​ and legal experts since it could establish a legal precedent for local control.

Kemp believes he has legally preempted local public health actions: "As clearly stated in my ​ executive orders, no local action can be more or less restrictive, and that rule applies statewide." In a July 15, Execution Order (7.15.20.01 on page 32), Kemp added new language to ​ ​ ​ ​ ​ the previous order banning local municipalities from requiring masks. Two days later, Kemp filed a lawsuit challenging Atlanta’s mask mandate and the rollback of the city’s ​ ​ ​ ​ ​ ​ reopening.

In addition, Kemp is arguing that Bottoms has created confusion among Georgians and is asking ​ ​ the court to prevent her from “issuing press releases, or making statements to the press, that ​ she has the authority to impose more or less restrictive measures” than him. “When we have local mayors that start going either above or beyond the executive orders that I have in place and try to pull back on our economy and start shutting our economy and shutting our businesses down, with really a knee-jerk reaction, I can’t allow that.”

The Georgia Municipal Association (GMA) has filed an amicus brief in the case siding with ​ Mayor Bottoms, arguing that under the Georgia Constitution, the government is usurping ​ ​ ​ ​

1 power given to local governments by the State Legislature: “The Georgia General ​ ​ Assembly intended for local governments to have the ability to enhance guidance from the … Governor through supplementation, so long as the supplementation by the local governments is consistent with the Governor’s executive orders.” Kemp has strongly encouraged Georgians to mask voluntarily.

According to GMA Executive Director Larry Hanson, “Our position is in support of home rule, ​ ​ local control and the rights of local governments to adopt policies for their own buildings and the right of local governments to adopt ordinances that supplement the governor’s orders.”

The African American Mayors Association — which includes Bottoms and hundreds of other Black mayors nationwide — has called on governors to allow cities to institute and enforce ​ ​ ​ mask mandates within their local communities. “Face masks — along with other practices — are proven ways to reduce the spread of covid-19,” president of the African American Mayors Association, McKinley Price, said in a statement. “Yet many governors ​ ​ are preventing mayors from enforcing these strategies. It shouldn’t be this way.”

Where Other Mayors are Defying their Governors

Governor Kemp is an outlier on masking orders. Governors in holdout states in Alabama, Arkansas, Colorado, Indiana, Montana and Ohio have now mandated face masks. At least 39 ​ states have now implemented some type of face mask requirement. In some states without ​ ​ ​ mandatory masking orders, mayors are defying their governors and ordering masks to be worn:

● City Mayor Bruce Teague has ordered people to wear masks in public to stop the spread of the coronavirus, defying Gov. Kim Reynolds’ claim that cities cannot mandate face coverings. According to the governor, municipalities can require them only if she grants that authority, which she’s refused to do. But Teague cited the home-rule ​ authority granted to cities in the state constitution and a law that gives mayors the ​ power to govern by proclamation when an “emergency or public danger exists.” The Reynolds administration has not indicated whether the state would try to block his order.

● In Nebraska, Lincoln Mayor and the Lancaster County Health Department are requiring face masks to be worn in indoor public spaces, although the ​ ​ move appears likely to draw a legal challenge from Gov. . The Governor ​ ​ called the mask mandate an example of government overreach and said he is reviewing whether the Mayor and Heath Department have the legal authority to require face coverings without the state’s permission. Ricketts said he will not withhold any federal ​ coronavirus aid from Lancaster County for enacting the mandate because masks will not ​ be required in state or county buildings. The governor previously warned counties that they would not be eligible for CARES Act money if they required their “customers” to ​ ​ wear masks at the local DMV or county assessor’s office.

Reopening schools: Who’s in charge? 2

School re-openings have become a white-hot issue after President demanded a return to in-person learning throughout the United States and threatened to cut off funds to ​ school districts that don’t force kids back into classrooms. School officials in hard-hit states like Texas, Florida and California are already planning to openly defy that order as COVID-19 infection rates and the death toll spikes. In several states, local school boards and teachers are in stand-offs with their governors and parents everywhere just want to know where their children are supposed to be this fall.

Arizona An impeding clash between Gov. and local schoolboards was put on pause yesterday (July 23) when Ducey abandoned an Aug. 17 deadline for the start of in-classroom ​ ​ ​ education. He did not replace it with any new target. Teachers have been pushing for an ​ October start date.

The new executive order signed by the governor directs school boards and charter school operators to begin some sort of operations — even if just online — on what would have been their regular start date. In addition, Ducey is demanding that districts must provide somewhere ​ for students who need a place to go. These could be children whose parents work as well as ​ students who do not have access to computers at home. The announcement from Ducey was ​ meant to offer Arizona families and educators clarity around reopening. But parents from ​ across the state told The Arizona Republic that they felt more confused after watching Thursday's press conference. ​

Florida Shortly after the president tweeted “SCHOOLS MUST REOPEN!” Gov. Ron DeSantis (R) announced that his state schools would be required to offer full-time instruction. Florida ​ Commissioner of Education Richard Corcoran then issued an emergency order that says school ​ ​ boards “must open brick and mortar schools at least five days per week for all students.”

The Florida Education Association has now sued Gov. Ron DeSantis accusing him of violating a ​ Florida law requiring that schools be “safe” and “secure.” Two nationwide unions, the National ​ ​ Education Association and the American Federation of Teachers, joined an announcement of the litigation in Tallahassee.

Iowa Gov. Kim Reynolds has ordered that at least 50% of learning this year be in-person this ​ ​ academic year. That directive sets up a potential clash with local districts such as Iowa City, ​ where the school board had voted to start the fall semester with online-only learning and Des ​ Moines public schools, the state's largest school district, which had decided that high schools ​ would meet only once per week and K-8 twice per week with some 100% virtual options. ​

In response to the governor’s announcement, the state’s teachers union has started a ​ petition asking Reynolds to rescind her recent proclamation and enhance districts’ local control. ​ “We stand behind those school districts that are making good decisions about the health and 3 safety of the people in their care,” the Iowa State Education Association petition reads in part. “Instead of making it even harder to keep our schools safe, we need you to empower school districts, staff and parents to decide what is best for their kids and communities.” In addition, the Iowa Public Health Association says each school district should be able to make its own ​ decisions on how to respond to COVID-19 safety needs.

Kansas The Kansas State Board of Education split 5-5 on a vote to affirm Gov. ’s executive order that would have pushed back the opening of schools to Sept. 9. The vote effectively killed the order, putting decisions of when and how to open schools back into the hands of local ​ school leaders.

Kelly announced last week a mandate to move the first day of school back by about a month in order to allow schools more time to prepare for changes in instruction. Many schools are planning for virtual learning, split schedules and safety precautions that are taking time to implement. The executive order, E.O. 20-58, required consent by the board because of a law passed in June calling for oversight of emergency preparedness mandates.

Missouri Missouri Governor is insisting that schools will be open despite the presence of the virus. “. Parson said he accepts that the virus will spread among children when they return to ​ school in the fall, “These kids have got to get back to school,” Parson of said on a St. Louis radio ​ ​ show. “They’re at the lowest risk possible. And if they do get Covid-19, which they will — and ​ they will when they go to school — they’re not going to the hospitals. They’re not going to have to sit in doctors’ offices. They’re going to go home and they’re going to get over it.”

The teachers union said it doesn’t like the pressure from the White House and the governor to ​ rush back into the classroom. The union said they are still working with school districts to figure ​ out what daily instruction looks like.

Oklahoma A deeply divided state school board has refused to mandate statewide safety requirements for ​ ​ districts when they reopen next month. Instead, the state Board of Education adopted a series of measures that they “strongly” recommended districts embrace, leaving the door open for a piecemeal approach that could widely vary from one district to the next amid the growing COVID-19 pandemic in Oklahoma.

Saying they supported local control rather than state mandates, the board voted 4-3 against mandating face coverings in schools that are experiencing widespread community spread of COVID-19. The majority of board members also decided individual districts should determine when it is safe to hold in-person classes, allow contact sports and hold public gatherings on school grounds and whether to allow visitors on campus.

4

South Carolina In South Carolina, Gov. Henry McMaster called for schools, regardless of coronavirus spread, ​ to offer five days per week of in-person classes starting after Labor Day. The governor asked ​ ​ ​ Molly Spearman, the Republican state schools superintendent, to require it. She declined — and criticized McMaster and the Trump administration for pressuring schools to reopen rather than leaving school boards and superintendents to decide.

Trending Now

Republican state office holders and lawmakers continue to challenge the public safety orders of Democratic governors:

● In Kentucky, after a week of legal battles, the state's Supreme Court agreed that Gov. ​ 's coronavirus orders can stay in place – for now. Republican Attorney General Daniel Cameron sought to block all of the governor's executive orders, including a statewide mask mandate. In a unanimous decision, the court ruled "Given the need ​ ​ ​ for a clear and consistent statewide public health policy and recognizing that the Kentucky legislature has expressly given the Governor broad executive powers in a public health emergency, the Court orders a stay of all orders of injunctive relief until such time as the various orders are properly before the Court with a full record of any evidence and pleadings considered by the lower courts."

● In Louisiana, Republican attorney general, Jeff Landry has released an opinion arguing that the state’s mask requirement “does not pass the constitutional test.” Louisiana Gov. (D) responded by telling the state’s top prosecutor that “everyone is entitled to their opinion but not their own facts.” ​ ​

● In Pennsylvania, several Republican lawmakers took to the steps of the state capitol in ​ Harrisburg to call for Gov. to remove all coronavirus restrictions in the state, ​ which they say infringe on individual rights. State Rep. Daryl Metcalf (R., Butler) called ​ Wolf a “tyrant” and said he is attempting to push articles of impeachment against Wolf through the state legislature for what he calls a “violation of our rights.”

5