Pandemic Provokes City vs. State Conflicts

By: - April 14, 2021 12:00 am

Mariah Parker, an Athens-Clarke County commissioner in Georgia, high-fives a high school student after a series of mock debates and votes inside the chamber at City Hall. The Georgia legislature approved legislation that would preempt the commission’s powers, after the panel moved toward restricting police funding. State preemption of local powers is increasing nationwide. Joshua L. Jones/Athens Banner-Herald via The Associated Press

Late last year, commissioners in Athens-Clarke County, Georgia, proposed cutting police funding in half over the next decade and redirecting the money to mental health and social services. The bill didn’t pass, but the idea alone so outraged the Georgia legislature that lawmakers decreed it would not happen on their watch.

The legislature passed a bill that would restrict similar measures in Athens or any other Georgia county or city. The bill now goes to Gov. Brian Kemp, a Republican, who has indicated he favors it.

State Rep. Houston Gaines, a Republican representing parts of Athens and the surrounding counties, and chief sponsor of the bill, told Fox News that he supports “local control, but when you have local governments that are out of control and they’re putting their communities and families in those communities at risk, that’s where I believe we have to step in.”

The move didn’t sit well with the local commissioners.

“You have to admire the contradiction in terms when these members of the Republican Party … claim a desire for smaller government,” said Athens-Clarke County Commissioner Mariah Parker, a Democrat who championed the police resolution. “To have that from folks who might not have their ear to the ground in our local community is frustrating.”

The state bill would prevent a local government from cutting its police budget by more than 5% in a fiscal year, except under extraordinary circumstances such as a large decrease in overall revenues. Any intent to do so would trigger an automatic local public hearing.

The situation in Athens embodies a trend toward states preempting local laws and ordinances, a movement fueled by the twin calamities of COVID-19 and the chaos surrounding the 2020 elections. The pandemic provoked conflicts between state and local governments—particularly in cities run by Democrats and states controlled by Republicans—when it came to COVID-19 rules such as mask ordinances and regulations on when businesses could open and at what capacity.

And the false claims by former President Donald Trump of widespread election fraud emboldened state elected officials to wrest control of elections from local officials, most notably in Georgia’s recent voting changes.

“Name a political issue, there’s probably a dozen preemption cases around the country,” said David Luchs, a team lead at Ballotpedia, which tracks 11 categories of preemption fights. He said Ballotpedia’s categories “run the gamut from really hot-button political issues like firearms regulations, to something hopelessly dull and dreary like ride-sharing or plastic bags. Some of the highest profile preemption cases will be around immigration and firearms.”

States Step In

States have exerted authority on a range of issues.

The Indiana General Assembly in February overrode Republican Gov. Eric Holcomb’s veto of a measure that preempts local housing regulations. It was aimed at the city of Indianapolis, which launched a program providing tenants with a list of rights and coordinating lawsuits against landlords who took what were perceived as retaliatory actions.

In Ohio, Republican Gov. Mike DeWine signed a bill in October establishing a one-year moratorium on local plastic bag laws. At the time the bill was signed, the city of Cincinnati and Cuyahoga County, home to Cleveland, had plastic bag bans in place. Similar bans have triggered other state and city fights as well, with many ending up in the courts.

That same month, the city of Philadelphia, on behalf of 10 residents, filed a lawsuit challenging a state statute that prohibits municipalities from enacting their own firearm restrictions or bans. Pittsburgh joined the suit, arguing that the state law disproportionately harms people of color.

And the South Carolina House, emulating Georgia’s strict statewide election law signed this month, passed and sent to the Senate a bill that would strengthen the State Election Commission’s oversight of county conduct of elections. The proposal came from House Speaker Jay Lucas, a Republican. The Senate approved a version that would strengthen oversight of state election officials, but not county ones. The two chambers are now seeking compromise.

Lucas told The State that the bill would ensure county boards are complying with state and federal election laws, and standardize the election process.

Isaac Cramer, project manager for the Charleston County Board of Elections, disagreed with that reasoning. The state already has the power to make sure voting procedures are uniform, he pointed out.

“We’re concerned about the issue of absolute authority and what that looks like,” Cramer said in a phone interview. “We know best where we’re supposed to have our absentee and in-person voting places. [The bill] could take that authority away from us.”

As an example, he noted that his county has a satellite voting unit in a trailer that he can bring around to polling places in the county to beef up polling stations or to set up voting for a special election. “The state election board could tell us we can’t use that unit because other counties don’t have that unit,” said Cramer, who also is the legislative chair of the South Carolina Association of Registration and Election Officials.

State Preemption Laws

Many states are passing laws preempting city and county laws and ordinances on a variety of issues. The COVID-19 pandemic and the chaotic 2020 election have fueled such efforts. Hover over a category and click on the lines that appear to sort by states with or without preemption laws in that category.

State Ban-the-Box Expenditure Limit Firearms General Revenue Limit Municipal Broadband Paid Leave Rent Control
Alabama No No Yes No Yes Yes Yes
Alaska No No Yes No No No No
Arizona No Yes Yes No No Yes Yes
Arkansas No No Yes Yes Yes Yes Yes
California No Yes Yes No No No Yes
Colorado No Yes Yes Yes Yes No Yes
Connecticut No No No No No No No
Delaware No No Yes No No No No
Florida No No Yes No Yes Yes Yes
Georgia No No Yes No No Yes Yes
Hawaii No No No No No No No
Idaho No No Yes No No No Yes
Illinois No No Yes No No No Yes
Indiana Yes No Yes No No Yes Yes
Iowa Yes No Yes No Yes Yes Yes
Kansas No No Yes No No Yes Yes
Kentucky No No Yes No No Yes Yes
Louisiana No No Yes No Yes Yes Yes
Maine No Yes Yes No No No No
Maryland No No Yes No No Yes No
Massachusetts No No No No No No Yes
Michigan Yes No Yes Yes Yes Yes Yes
Minnesota No No Yes Yes Yes No Yes
Mississippi Yes No Yes No No Yes Yes
Missouri No No Yes No Yes Yes Yes
Montana No No Yes No Yes No No
Nebraska No Yes Yes Yes Yes No No
Nevada No No Yes Yes Yes No No
New Hampshire No No Yes No No No No
New Jersey Yes Yes No No Yes Yes No
New Mexico No No Yes No No No Yes
New York No No No No No No No
North Carolina No No Yes No Yes No Yes
North Dakota No No Yes No No No Yes
Ohio No No Yes No No Yes No
Oklahoma No No Yes No No Yes Yes
Oregon No No Yes No No Yes Yes
Pennsylvania No No Yes No Yes No No
Rhode Island No No Yes No No Yes No
South Carolina No No Yes No Yes Yes Yes
South Dakota No No Yes No No No Yes
Tennessee Yes No Yes No Yes Yes Yes
Texas No No Yes No Yes No No
Utah No No Yes No Yes Yes Yes
Vermont No No Yes No No No No
Virginia No No Yes No Yes No No
Washington No Yes Yes No Yes No Yes
West Virginia No No Yes No No No No
Wisconsin No No Yes Yes Yes Yes Yes
Wyoming No No Yes No No No No

Source: Temple University, Center for Public Health Law Research

Data compiled in July 2020 by the Center for Public Health Law Research at Temple University and the National League of Cities showed that the most extensive preemption laws were related to firearms (46 states), property tax rate limits (37 states), tax levy limits (36 states), rent control (31 states) and paid leave (23 states).

Hawaii is the only state without preemption in any of the 12 issues the center studied. The research focused on health and welfare topics and did not get into pandemic-related preemption or police funding.

‘It Comes With Teeth’

“Generally speaking, not only is there more preemption [lately], it comes with teeth,” said Alexandra Hess, a law and policy analyst with the center at Temple who worked on the July data. “There are fines or penalties for enacting laws outside of the bounds of preemption. This is aimed at keeping local legislatures from trying or even thinking about it.”

Hess pointed out that many of the state preemption laws are similar and are sometimes based on model legislation written by lobbyists or interest groups. Chief among them is the conservative American Legislative Exchange Council, known as ALEC, which offers such legislation on its website.

For example, ALEC living-wage model legislation has formed the basis of many state laws eliminating the ability of localities to require a higher minimum wage than is mandated by the state, said Mark Treskon, senior research associate at the Urban Institute, a Washington, D.C., think tank.

ALEC did not answer requests for comment.

Brooks Rainwater, a senior executive at the Center for City Solutions, the research arm of the National League of Cities, cited a case in Missouri two years ago. St. Louis enacted a higher minimum wage than the state’s, and workers were beginning to feel it.

“People had the ability to buy more groceries and put gas in their car,” he said. “Then the legislature clawed that back. They had a raise and it was taken away. We can talk about the legalistic reasons for this, but the real problem with preemption is the effect it has on people.”

The response to COVID-19 was both a matter of state preemption and statewide coordination, Treskon said.

“My sense of it is that COVID exacerbated what was happening previously,” he said. “If you were in a state that did more preemptions anyway, you were likely to preempt for COVID.”

Racial Undertones

A September 2020 study by the progressive Economic Policy Institute, a Washington, D.C.-based think tank, found that Southern states are more likely than states in other regions to use preemption to stop local governments from implementing worker protections such as raising the minimum wage or guaranteeing paid sick leave.

That stance, the institute wrote, is rooted “in a long history of events and actions that have sought to promote the interests of historically privileged property owners and perpetuate the South’s racist past.”

Julia Wolfe, one of the study’s authors and a state economic analyst at the institute, said these preemption laws seem to be “targeted at preventing action in more progressive cities.”

Jonathan Entin, law professor emeritus at Case Western Reserve University in Ohio, who has studied preemption issues, also argued there are “racial undertones to some of these issues. We can talk about them as cultural … but in most states where these issues have come up, the local governments are leading communities with more people of color.”

“I’m not saying it’s racist Republican legislators taking it out on Black cities; there is the potential that some of the larger social tensions we see are getting played out here as well,” he said. “It is sometimes difficult to distinguish between a partisan division and a racial division.”

While the relationship between the federal government and state governments is spelled out in the U.S. Constitution, the relationship between the states and smaller jurisdictions is more fluid. Historically, cities, counties and other small political entities retained only those rights granted to them by the states. But about 50 years ago, a “home rule” movement swept the country, and cities, towns, counties and boroughs sought and received powers of their own.

In the coronavirus pandemic, those disparate powers came into clearer focus. Still, there were power vacuums, according to the Economic Policy Institute. For example, many Southern states, including Florida, Georgia, Mississippi, South Carolina, Tennessee, Texas and West Virginia, prevented localities from enacting stronger stay-at-home orders than those imposed by the states, according to the Economic Policy Institute.

By contrast, Maryland created a regulatory floor for the restrictive travel orders and allowed county leaders to issue stricter prohibitions.

Entin, the Case Western professor, also stressed that the pandemic and the “hotly contested election simply accentuated the trends [of preemption] that were already there.”

“The Democrats or the local governments would probably say the state legislatures have gotten more aggressive in policing what the local governments can do,” he said, “and the legislators might say they are responding to more aggressive local policies than we’ve seen in the past.”

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Elaine S. Povich
Elaine S. Povich

Elaine S. Povich covers education and consumer affairs for Stateline. Povich has reported for Newsday, the Chicago Tribune and United Press International.