Just as one of the major storylines of the COVID-19 pandemic in 2020 was President Donald Trump facing off against Democratic governors like Andrew Cuomo and Gavin Newson, much of the current political wrangling over COVID is being framed as President Biden urging caution versus GOP governors, like Florida's Ron DeSantis and Texas's Greg Abbott, throwing their states open without masks.
But below the surface, there's been a possibly more consequential fight over COVID that has not received nearly as much attention. It's not between the president and the states, but between red state governors and their blue cities, which almost universally promoted mask mandates and other mitigation measures — and by all evidence were the key element staunching the spread of the virus in those states.
That red state-blue city conflict on COVID also reflects a more far-ranging battle, itself part of the ideological right turn in the Republican Party over the last decade, in which Republican-dominated states have attacked local government power, as cities even in red states become more liberal and non-white. The recent Georgia legislation giving the state the power to override local election boards is of a piece with wave after wave of state legislation that has preempted local minimum wage laws, overturned local gay rights bills, and nullified local paid sick days bills.
What is most dangerous about recent governors' actions on COVID-19 is less the elimination of statewide mask mandates and more that governors like Arizona's Doug Ducey, who never implemented a state rule, shut down local mandates in March. "The horrible surge last June was only curbed by masking — when the governor finally allowed cities to do it," Phoenix Mayor Kate Gallego tweeted in response.
City leaders in Dallas, Houston, and Austin condemned the similar decision by Texas Governor Greg Abbott to overturn local mask mandates, with even fellow Republican Fort Worth Mayor Betsy Rice saying his action was "premature."
But until last month, almost every major city and dense county in the nation had mask mandates in place, one reason comparing "red state" and "blue state" responses to the pandemic made little sense. In fact, Miami-Dade had perhaps the most aggressive mask enforcement in the nation, citing hundreds of businesses and individuals for non-compliance and collecting nearly $300,000 in fines — at least until Florida Gov. DeSantis ended local government's ability to collect fines in September 2020.
It's reasonable to see these aggressive local actions as a key reason 80 to 90 percent of Americans were reporting wearing masks by fall 2020, even in red states, and that the spread of the virus was reduced. One Kansas study found that spread of the virus decreased in its counties with mask mandates, while increased significantly in those without one, while a study in Oklahoma showed similar differences in spread of the disease in cities with and without local mandates. In Oklahoma, where almost every major city had mask mandates, two-thirds of COVID-19 hospitalizations came from nonmasking jurisdictions.
If this success on masking shows the importance of local government action, the shutdown of that local flexibility by red state governors last month reflects the broader trend of expanding state preemption of local power in large swathes of public policy.
Take the minimum wage. As Democrats recently called for an increase in the federal minimum wage rate, Republicans responded that the needs of rural and urban areas are so different that a single policy was misguided: "It will not serve Americans to ram through a one-size-fits-all minimum wage hike," argued Senate Minority Leader Mitch McConnell (R-Ky.).
Except many of these same Republicans arguing for regional flexibility represent states that have imposed "one-size-fits-all" state preemption blocking cities from raising the local minimum wage above the state's rate in rural counties. The early 2010s saw an explosion of cities raising their rates — 40 cities and counties by 2016 — but that was followed as quickly by an explosion of state laws preempting them. St. Louis's minimum wage hike in 2015 led to a state law reverse it. Birmingham, Alabama raised its minimum wage in 2016, only to have the Alabama legislature halt it. And when Cleveland even discussed a ballot initiative to raise their minimum wage, Ohio passed a bill blocking any local minimum wage level above the state policy. 25 states now prohibit local minimum wage laws.
Voting laws are moving in the same direction. Much of the political fire during the aftermath of the 2020 election came from Trump and others demanding state governments override the election counts made by local boards of elections. While state leaders and legislators in the end could not come up with plausibly legal excuses to do that, in 2021 they have introduced 361 bills with restrictive provisions, many of them aimed at severely limiting the power of local governments over elections.
Iowa was first to act, passing a law that bars local election officials from sending out forms to encourage people to register to vote, and establishing fines for any local official who deviates from new state rules for conducting elections. A lot of national attention has been paid to provisions in the new Georgia law making it illegal to give voters waiting on line water or food, but the most radical provision strips the elected Secretary of State of much of his power and gives the state legislature dominance of a state board that now can discipline and remove local election officials. It also limits where local governments can put drop boxes and when they can be accessed. Other states are in the process of passing similar laws to decisively shift power over elections to state officials.
A few decades ago, preemption was largely driven by select special interests with deep pockets. In the 1980s, R.J. Reynolds pushed through state laws striking down local smoking restrictions and bans, while the National Rifle Association spent the 1990s quite successfully pushing state preemption of local gun regulation, with 43 states blocking any limits beyond existing state rules. Assisting this effort increasingly was the corporate-backed American Legislative Council (ALEC) and other industry associations, which would distribute "model" bills to allied conservative legislators with the imprimatur of its non-profit board of state legislators.
But as local metro regions became more Democratic-leaning in most states and white-dominated legislatures in the South and Midwest became more Republican, particularly after the 2010 midterms, the regional political clash was translated into an accelerating movement to preempt nearly all local government power in many states. After the 2016 election, Republicans had control of both legislative chambers in 32 states.
In this time, state preemption of local power has extended to issue after issue. One academic analysis found states had prohibited localities from requiring fire sprinkler systems in new homes; banning fracking; imposing local nutrition and food policies; passing firearm regulations; requiring paid sick days; decriminalizing marijuana; banning plastic shopping bags; passing discrimination protections for LGBT workers; regulating e-cigarettes; imposing regulations concerning land use; passing undocumented immigrant protections; regulating factory farms; banning police drones; regulating local airports; initiating municipal broadband services; creating anti-GMO policies — and the list went on.
At its core, this is largely a story of Black and Latino voters gaining a governing voice in local governments, often for the first time in recent decades, only to have that voice made worthless as the power wielded by those local governments has been reduced or eliminated. While a lot of national focus is placed on how individual voting restrictions and gerrymandering frustrate minority voting rights, not nearly enough attention has been paid to the role of preemption in preventing those votes from being translated into actual power over policy.
A few courts have focused on this as a constitutional problem under the 14th Amendment. A three-judge panel of the 11th Circuit Court of Appeals agreed that Alabama's barring of local minimum wage increases reflected potential racial animus given there was a reasonable view that the legislation disproportionately hurt Black workers and reflected the "rushed, reactionary, and racially polarized nature of the legislative process; and Alabama's historical use of state power to deny local black majorities authority over economic decision-making." The panel also referenced the Supreme Court in the past prohibiting "majorities from restructuring the political process to frustrate the ability of minorities to enact legislation," although also noted recent decisions by the Court had backed away from that doctrine. However, the full 11th Circuit ultimately blocked the lawsuit on technical grounds, as did another court dismissing a challenge to a Texas preemption law that had stopped Texas cities from enacting policies to stop discrimination in local housing.
Congress itself could enact legislation to make state preemption a civil rights violation when it disproportionately impacts non-white citizens and is designed to "frustrate the ability of minorities to enact legislation." Congress could also address the technical standing issues to make it easier to challenge preemption as a violation of federal law.
Beyond the broader racial dynamics of preemption, there are strong reasons for the federal government to protect local power in particular policy areas where it serves public health and promotes policy innovation — the example of COVID mitigation measures being a clear example. As we debate rebuilding the nation's infrastructure, Congress could address the problem that 19 states have enacted legislation hobbling the ability of local governments to build their own municipally-run broadband systems, despite the documented gains to the 500 communities that have done so. Back in 2015, the Federal Communications Commission had sought to use its regulatory power to challenge state preemption to protect local broadband networks, but the courts declared this beyond its statutory power. A bill has been introduced to prevent such preemption, as Democrats like Sen. Cory Booker argue to remove "onerous barriers to creating more municipal broadband networks and expand access to the internet for every community."
Ideally, this bill will be incorporated into the new American Jobs Plan working its way through Congress, but its approach also highlights a roadmap for designating areas, issue-by-issue, where local power could be protected against state preemption. While there are clearly times when uniform policy in a state may be useful, there are also clearly areas where local choices and innovation should take precedence.
The reality of American government is not a binary opposition between federal and state power. Rather, we have a dynamic three-level system of federal, state, and local power. The functioning of that system is under threat, though, and it will require federal action to ensure that local government power is not extinguished by racist, partisan policy at the state level.