GOP lawmakers repeal Kansas mask mandate, lawsuits expected against local orders

The Kansas State Capitol located in Topeka, Kansas. (Steven Frame/Dreamstime/TNS)
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Katie Bernard and Jonathan Shorman The Kansas City Star (TNS)

TOPEKA, Kan. — Kansas’s statewide mask mandate, already an exemption-filled patchwork, came to an end Thursday, canceled by top Republican lawmakers under a new law that makes it more difficult for health officials to keep COVID-19 precautions in place.

A group of leading legislators, known as the Legislative Coordinating Council, voted 5-2 along party lines to overturn Democratic Gov. Laura Kelly’s mask mandate hours after she reissued it to fulfill the requirements of the new law. One member of the eight person panel, embattled Senate Majority Leader Gene Suellentrop, was absent for the vote conducted over video conference.

“The revocation of a one-size-fits-all statewide mandate does not in any way impact any local orders that are in place,” said Speaker Pro Tem Blaine Finch, an Ottawa Republican. “The numbers don’t support a statewide mandate at this time.”

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The new system comes as Kansas grapples with a pandemic that continues to infect hundreds each day, including cases involving variants that spread more aggressively. Epidemiologists have warned that a fourth wave of the virus could be around the corner despite rising vaccination rates.

The new law — like the old law — allows individual counties to opt out of the mask requirement. The new law goes further, however, and allows the LCC to repeal the governor’s executive orders.

In a statement after the vote, Kelly criticized the decision as a departure from a COVID-19 mitigation strategy that was working.

“I’m disappointed that Republican leaders are more motivated by political publicity stunts than working together to protect Kansans and our economy,” Kelly said. “I know that all of us are ready to get back to normal, but wearing a face-covering will help protect ourselves, our loved ones, and our neighbors from the new COVID-19 strains that are wreaking havoc in other states.”

Kansas joins 17 other states without a mask mandate, according to the Kaiser Family Foundation, after having one on and off since July. Several states, like Texas and Mississippi, lifted their mandates in recent weeks while others, like Missouri, never issued one.

The elimination of the mandate is the most striking example of the fallout from Senate Bill 40, the sprawling rewrite of the state’s emergency powers law. But the measure’s biggest effects are likely to play out in the weeks ahead as residents and businesses are empowered to more easily challenge a host of local pandemic rules. This is despite GOP claims that rejecting the statewide mandate gave local governments control.

The Republican-controlled Legislature passed the measure and Kelly signed it last month. It allows residents and businesses who object to city, county or school district restrictions to trigger a lightning-fast 72-hour review by a judge. The burden of proof falls on officials to demonstrate their rules protect public health in the least restrictive way possible.

It means that across much of the state, the era of mandatory social distancing, business capacity limits and required mask use will likely come to an end, if it hasn’t already. Some local officials are reluctant to order precautions knowing that a single upset resident or business can quickly send them to court.

Anticipating a deluge of appeals, the Sedgwick County Commission preemptively removed its mask mandate last week. Masks remained required in the county through Thursday in accordance with the statewide mandate.

In Johnson and Wyandotte Counties, officials voted last week to extend the local orders requiring masks and social distancing.

“Vaccination rates are still low, and we are far from reaching herd immunity. COVID-19 is still a threat to our community, especially as new COVID-19 variants have started to circulate in the metro area,” Janell Friesen, a spokeswoman for the Wyandotte County health department, said in an email.

Although Johnson County health officials insisted that masks are the “least restrictive” way to combat the pandemic, commissioners were concerned that adhering to public health guidelines would set the county up for a “nightmare” of appeals and lawsuits flooding an already backlogged court system.

“I am put in the (position) of supporting lawsuits that will clog up our court system or supporting public health. I just think it’s unconscionable,” County Commissioner Becky Fast said last week.

Some school districts already are fielding complaints over their mask requirements. The De Soto district on Monday received five requests from parents who asked for hearings to contest the school’s mask policy, which was enacted last summer.

The district quickly scheduled a hearing for Wednesday morning, but prior to that, three of the five parents withdrew their requests. And the other parents did not show up, said Alvie Cater, assistant superintendent.

As of Thursday, 302,372 people in Kansas had contracted COVID-19, and 4,913 of them had died. At the end of last week the state was averaging 275 new cases each day and two new deaths. The rate is a steep decline from the November peak of more than 2,700 daily cases but mirrors infections seen in June.

Everyone 16 and older is now eligible to get vaccinated but it could take weeks before enough people are vaccinated that the virus struggles to spread because it can’t find non-immune people to infect — the phenomenon known as herd immunity.

The KDHE reported that as of Thursday, 27.5% of Kansans, or 80,925 people, had received at least one dose of the vaccine.

“I think the Legislature should stay involved and have conversations but not do what it can do to derail longstanding, very successful public health interventions,” Lee Norman, director of the Kansas Department of Health and Environment, said Tuesday.

Norman said it hadn’t been “easy sledding” since last spring, saying Republican Attorney General Derek Schmidt, who is running for governor, and legislators have tried to curtail successful public health practices and take away authority from public health officials.

Republicans view the new law and Thursday’s vote on the mask mandate as pushing back against overreach. They portrayed repealing the order as stopping a one-size-fits-all approach in a large state — repeating critiques some lawmakers have leveled against Kelly’s response throughout the pandemic.

The House and Senate both passed resolutions this week urging the LCC to strike down the mask order — making the outcome of Thursday’s vote clear well in advance.

“If it makes you more comfortable to wear a mask please continue to do so,” said Sen. Mark Steffen, a Hutchinson Republican, during debate Wednesday night on a resolution urging the LCC vote against the mandate. “Otherwise I’d invite you to step forward Kansas strong and move ahead without a mask mandate.”

Democrats, however, argued masks would help prevent spread of the virus and get the state through the end of the pandemic.

“It would be a big mistake to go backward right now,” said House Minority Leader Tom Sawyer, a Wichita Democrat.

In less than 30 minutes of discussion, Thursday, Democrat leaders expressed concern that repealing the order would prematurely signal to Kansans that the pandemic had ended, thereby causing more cases and deaths.

“We could be causing more harm and causing cases to increase and potentially cause more devastation as we are getting out of this,” said Senate Minority Leader Dinah Sykes, a Lenexa Democrat.

Although local orders could fall to lawsuits, GOP leaders argued that the recent drop in COVID-19 cases made a statewide mandate unnecessary.

“People in each locality understand their situation more than anyone else in the state,” said House Majority Leader Dan Hawkins, a Wichita Republican.

The Star’s Sarah Ritter contributed to this story.

 

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