This week, Governor Brian Kemp pleaded with Georgians to cover their faces in public.
“Today, I am encouraging all Georgians—from every corner of our great state—to do four things for four weeks to stop the spread of COVID-19,” he said. “If Georgians commit to wearing a mask, socially distancing, washing their hands regularly, and following the guidance in our executive order and from public-health officials, we can make incredible progress in the fight against COVID-19.”
This request would be unremarkable on its own, but it came just days after Kemp sued Atlanta Mayor Keisha Lance Bottoms and the city council for attempting to enact their own mask mandate. Atlanta’s mandate defied an order from Kemp banning cities from creating rules stricter than his own.
Viewed in narrow terms, Kemp’s battle with Bottoms is strange and self-defeating. The governor wants residents to wear masks, yet he is litigating against an attempt to require them to do so in the state’s most populous city. But the fight in Georgia is not unique. Across the nation, and in particular in the South and the Sun Belt, there have been a string of skirmishes like this between local and state governments. Typically, Republican governors have couched their crackdowns on strict city ordinances as a defense of liberty and personal responsibility: They want people to wear masks, but believe that mandating it oversteps government’s bounds.
These conflicts really are about citizens’ right to make choices for themselves, just not in the way the governors claim. They test whether residents of red-state cities, more minority-heavy and liberal than the state overall, should be able to make their own choices about governance. Over the past decade, there’s been a sharp increase in cases of states preempting city rules on everything from Happy Meals to bike lanes to vaping. While the stakes of coronavirus mask ordinances are more immediate, the clashes over masks are the logical extension of that steadily building conflict.
“We are about to see a shit storm of state and federal preemption orders, of a magnitude greater than anything in history,” Mark Pertschuk of Grassroots Change, which tracks such laws through an initiative called Preemption Watch, told me in 2016. The storm has arrived, carried in on the ill winds of a pandemic.
Kemp’s suit against Atlanta’s leaders comes after weeks of building tensions. In April, he issued an order on COVID-19 that blocked enforcement of any local or city rules that were “more or less restrictive” than his own. At that early stage in the pandemic, before masks were a common topic of discussion, this sort of preemption occasioned mostly grumbling from local authorities.
But as the virus spread—exacerbated in part by Kemp pushing a hasty, premature reopening of the state, over the objections of leaders in Georgia cities—masks came to the fore, and the ban started to become more contentious. At the beginning of July, Savannah Mayor Van Johnson announced a mask mandate despite Kemp’s order. A week later, leaders in Clarke County, home to Athens, instituted a mask mandate. The next day, July 8, Bottoms signed an executive order requiring masks. Other local leaders have done the same.
Initially, Kemp held his fire. But on July 15, President Trump visited Atlanta’s airport, where—as was his practice—he did not wear a mask. Bottoms told CNN that Trump had broken the law by defying the mandate. That evening, Kemp, a close Trump ally, issued a new order that explicitly preempted local mask ordinances. The following day he filed suit over Atlanta’s order.
Local leaders are furious. “It’s officially official. Governor Kemp does not give a damn about us,” said Savannah’s Johnson. Bottoms said her order remained in effect. Atlanta seems to be banking on tying up the discussion in litigation for as long as possible, buying time for mask mandates to do their work. (Helpfully for the dilatory strategy, two judges have already recused themselves from the case.)
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The escalation in Georgia contrasts with conflicts in some other states where local leaders and governors initially clashed. The Republican governors of both Arizona and Texas initially blocked cities from enacting mask ordinances, but in June, as cases surged in both states, the governors backed down and allowed cities to act on their own. Georgia is not unique, though. This week, for example, Iowa City Mayor Bruce Teague announced a mask mandate that conflicts with preemption by Governor Kim Reynolds.
The acrimony is intense, but the practical gaps between the conflicting governments are minuscule. There’s no real remaining disagreement about the wisdom of wearing a mask. This week, even Trump—who had perhaps been the lone remaining major holdout—called on all Americans to wear them. Furthermore, even many cities that have mask rules in place are not making serious efforts to enforce them with citations or other penalties: A “mandate” is really just a way to nudge people to wear them.
Such heated battles over achieving a shared goal in the midst of a pandemic might seem nonsensical when they’re separated from the context of a long-growing ideological and racial battle that has escalated in recent years. Since 2010, Republicans have dominated most state governments while cities, including those in red states, have grown more liberal. Progressives, frustrated with the minimal opportunities for policy change at the national and state levels, have turned to cities as a laboratory for change, and state legislators and governors have reacted with horror.
The most prominent case came in 2016, when the city council of Charlotte, North Carolina, passed an LGBTQ nondiscrimination ordinance that said transgender people could use the bathroom of their choice. The North Carolina general assembly then swiftly passed a law, which Republican Governor Pat McCrory signed, preempting any local nondiscrimination laws and mandating that people use bathrooms corresponding to the sex listed on their birth certificate. (The law was later mostly repealed.) But the tide of preemption laws had been growing for years. States often blocked cities from banning plastic bags or fracking or sugary drinks. They’ve prevented the enactment of stricter gun rules, higher minimum wages, and paid sick leave.
In many of these cases, the local rules conflict with conservative pro-business, anti-regulatory sentiment, which is why Republican state governments have stepped in. But that interference itself conflicts with a long-standing conservative preference for local control and self-governance. Conservatives have historically believed that local citizens knew better than the mandarins in the state capitol—and certainly better than those in Washington.
Now it’s liberals who are making the same argument. Many voters in southern cities are often very progressive, and often elect local leaders who reflect that, but many state governments remain much more conservative, thanks to rural voters (and in some states, including North Carolina, thanks to extensive gerrymandering that guarantees their continued dominance). COVID-19 is just another theater for this battle. Mayors who have said for years that cities ought to be able to enact stricter gun laws than rural areas because urban gun violence is different than rural hunting are now saying that their cities need to be able to enact stricture coronavirus rules, too, because densely packed cities have different public-health needs than spread-out rural areas.
Meanwhile, more Republican leaders at the state level don’t want to allow locally elected leaders to make these choices. Separating these conflicts from the increasing racial diversity of cities in the South is difficult. Some of the localities that have clashed with governors are majority-minority, including Atlanta, Savannah, Houston, San Antonio, and Phoenix. Many of them also have Black mayors, including Atlanta, Savannah, Houston, and Dallas. (So does Iowa City.) Others are led by Hispanic mayors.
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In the United States, cities are corporations, granted certain powers by states. Some states give cities broad authority to act unless otherwise instructed by states, under what’s called home rule, while others allow cities to only take actions specifically delegated to them. (DeKalb County, which includes parts of Atlanta, has argued it can legally introduce a mask ordinance under home-rule authority.) In either case, the state holds ultimate authority.
Parts of this arrangement date back to a crackdown on municipal power in the late 19th century. Some of the reasons for this were reasonable: There’d been a spree of defaults by cities, leaving creditors and states holding the bag. But state officials were also concerned that minorities like Black people or immigrants were gaining power and introducing excessively liberal government in their cities. Today’s preemption battles are a reprise of these historical tensions, and they stem from much the same causes.
Once, the stakes of the preemption battles seemed mainly to be whether residents of cities would be allowed to govern themselves. Now they are life and death.
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