While Democratic Gov. Tony Evers has expressed doubt that a statewide mask mandate would hold up in court, momentum continues to build among state Democrats for a face-covering requirement in Wisconsin.
On Tuesday, state Sen. Chris Larson, D-Milwaukee, said a petition supporting a statewide mask mandate amassed more than 8,000 signatures from “hundreds of municipalities” in less than a day.
More than 30 states across the nation have implemented statewide mask orders in efforts to slow the spread of COVID-19.
“The tremendous support we have received for a statewide mask mandate has been overwhelming,” Larson said in a statement. “What some might think is the absolute least we can do is also the simplest, most effective way for us to control the spread of COVID-19 and give us a fighting chance to open schools safely this academic year.”
While Evers has said a statewide mask mandate would be unlikely, he said last week the surge in positive cases of COVID-19 had “accelerated” his consideration of such an order.
Evers also reiterated on a Thursday call with reporters that his authority to impose a statewide order to limit the spread of COVID-19 — which has killed 906 Wisconsinites as of Tuesday — is likely limited by the state Supreme Court’s decision to toss out his stay-at-home order in May.
Jeffrey Mandell, a liberal Madison attorney who has worked for Evers, said it’s important to note the the Supreme Court ruling focused on the authority of Department of Health Services Secretary Andrea Palm, not Evers’ gubernatorial powers.
“As a legal matter, it does not directly prohibit the governor from acting,” Mandell said. “I think it would be overly simplistic for anyone to say, ‘Legislature v. Palm entirely decided the authority that Gov. Evers has with respect to COVID-19, that’s over and done with.’”
The court’s ruling focused on Palm’s extension of the Evers administration’s “safer at home” order, which closed nonessential businesses and limited services at others. The court ruled Palm exceeded the authority granted to her by state law when she extended the rule without legislative oversight.
Ultimately, the court struck down the order on a 4-3 vote, with conservative-backed Justice Brian Hagedorn joining the court’s two liberal-backed members in support of the order.
While the court found Palm erred in not involving the Legislature, it left untouched the state law allowing her to issue orders to address outbreaks of communicable diseases, leaving some to believe a mask mandate could still be passed in Wisconsin.
Earlier this month, Patrick Remington, a UW-Madison emeritus professor and former chief medical officer for Chronic Disease and Injury Prevention in the state Division of Health, said the legal question behind a statewide mask mandate would come down to the court’s interpretation of “reasonable and necessary.”
Evers has said he would not hesitate to pass a mask mandate if he knew the matter wouldn’t face a legal challenge.
On Aug. 1, liberal-backed Justice Jill Karofsky joins the seven-member state Supreme Court — following her April victory over current conservative-backed Justice Daniel Kelly. With Karofsky on the court, a statewide mask order could face better odds of withstanding a legal challenge.
Expired May 11
Mandell said another question is whether Evers’ administration has the authority to declare a new public health emergency. The state’s original order expired May 11.
“I don’t think it forecloses the notion that the governor has legal authority to issue a statewide public health order under certain circumstances,” Mandell said. “So the question then becomes, what kind of health order and what kind of circumstances?”
Evers issued a mandate earlier this month for state executive branch employees to wear masks while working in state buildings.
Several state GOP leaders, who also could pass a Wisconsin mask order through legislation, have said they oppose a statewide rule but would support local requirements.
Cities join in
Last week, Racine, Green Bay, Whitewater and Superior joined Madison and Milwaukee as Wisconsin cities to pass mandates requiring people to wear masks in certain public settings. Additional cities have considered their own local requirements, which could add to the patchwork of mask requirements across the state.
Earlier this month, the UW Board of Regents unanimously passed a mask mandate, a few weeks after the UW System issued guidelines recommending masks but not requiring them.
Both state and global health experts have said wearing masks is one of the most effective ways to slow the spread of the virus. Despite not wearing a face mask in public for months, President Donald Trump last week encouraged face-coverings. He recently tweeted that it’s patriotic to wear a mask.
COVID-19 in photos: How Wisconsin is managing the pandemic
On Aug. 1, liberal-backed Justice Jill Karofsky joins the seven-member state Supreme Court.