At his daily COVID-19 press update on Friday, Gov. Ralph Northam hinted that Virginians could soon be subject to a mandatory mask order as early as next week, after Richmond Mayor Levar Stoney asked Northam to take the drastic step in a letter sent to the governor.
“There have been overwhelming recommendations to wear masks or face coverings in public spaces, and I stand firm that by doing this we can all reduce the spread of COVID-19,” Stoney wrote. “As the nation’s only doctor governor, I know that you understand that this is not the time for us to let down our guard, which is why I am continuing to encourage you to make it a requirement that Virginians must wear a mask or face covering while in a public space or visiting businesses.”
Northam says that an announcement on masks could come as early as Tuesday, and it seems likely that the governor will try to press the issue despite the fact that in recent weeks he’s been pushing more for a regional reopening and response to the coronavirus pandemic. If the governor does decide to attempt to implement a mask mandate, he should be aware that his order is likely to be met with almost as much pushback and local resistance as his gun control agenda has been throughout much of the state.
Law enforcement officials like Culpeper County Sheriff Scott Jenkins have already warned that social distancing orders from the governor will not be enforced by any of his officers, and I’m guessing other sheriffs will follow suit if asked to enforce a mask mandate on their residents. WTVR-TV in Richmond reports that the state chapter of the ACLU is also warning Northam that any mandatory mask order could run afoul of state and federal law.
“Any public health mandate should be imposed based on good science and positive impact, using the least restrictive measures possible. Steps must be taken to ensure enforcement isn’t discriminatory or based on biased policing (as has been the case in New York City). Also, enforcement of a mandate must not add people to jail populations that should be reduced,” ACLU of Virginia’s executive director, Claire Guthrie Gastañaga said in a statement.
Northam’s already lost one court case over the closure of indoor ranges, and it’s quite possible that a mandatory mask order for the entire state would be struck down if he attempts to put one in place.
So far, Northam seems unwilling or unable to think about how any mask mandate might be enforced. The governor appears to believe that compliance will naturally follow any order he might give, which suggests he’s learned nothing from the Second Amendment Sanctuary movement in the state. Since last November’s elections, the vast majority of counties have approved resolutions declaring their counties save havens for the right to keep and bear arms, and both sheriffs and Commonwealth’s Attorneys across the state have proclaimed that they have no plans to enforce any unconstitutional gun control laws.
Many of these rural counties have just a handful of coronavirus cases, and three counties in the western part of the state have reported no cases at all. At the moment, the main outbreaks of the coronavirus in the state are in the northern Virginia suburbs of Washington, D.C. as well as the Richmond area. It might be possible to try to enforce a mask mandate in those population centers, but I don’t see how the governor is going to ensure compliance in the more rural parts of Virginia, and I think he’ll be making a huge mistake if he tries to do so.
Ohio Governor Mike DeWine has already backed off of a mandatory mask order after originally declaring an order very similar to the one that Northam is considering. DeWine explained that his reversal came about after he realized that trying to enforce the measure “just wasn’t going to work.”
“It became clear to me that that was just a bridge too far. People were not going to accept the government telling them what to do,” he said on ABC’s “This Week.”
I’d say that same calculus should be applied to Virginia’s Second Amendment Sanctuary counties, where Northam’s order is likely to be seen as another unconstitutional overreach on the part of the governor, and be met with widespread noncompliance. The governor is also going to box himself into a corner no matter how he might try to enforce such an order. The ACLU has already warned that enforcement can’t be discriminatory, yet it’s likely that urban residents in Richmond, Virginia Beach, and northern Virginia will be the ones to bear the brunt of any enforcement measure (as will be the case with his gun control laws when they take effect in July). Even if enforcement itself isn’t done in a discriminating way, the outcome is likely to lead to a disproportionate number of minorities charged with violating Northam’s order.
It seems counterproductive for Northam to try to order jail time for those not wearing a mask, and fining people during the current economic upheaval will likely be greeted with howls of protest as well. From both a political and policy perspective, a mandatory mask order is a really bad idea.
The wiser move for the governor would be to encourage the use of masks, but not make them mandatory. Given his reaction to the Second Amendment Sanctuary movement that swept across the state in the winter of 2019 and 2020, Northam may be too heavy-handed and authoritarian to go that route, but if he’s truly more interested in public health than personal power then the choice should be an easy one to make.