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Some opposition brews to North Dakota Legislature mask mandate
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Some opposition brews to North Dakota Legislature mask mandate

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State lawmakers who disregard a proposed legislative mask mandate could be removed by state troopers, charged with a misdemeanor or even expelled from the Legislature.

A top North Dakota lawmaker says enforcement wouldn't immediately come to those measures. Some state representatives already oppose a mask rule, but say they'll still carry out their work in the coming session. A memo from Legislative Council sent Saturday to legislators details what authority and penalties exist for imposing a mask mandate in the Legislature.

The Legislature convenes for three days beginning Tuesday for its organizational session, during which the House and Senate are expected to vote on a joint rule mandating everyone in legislative spaces wear face masks. The 2021 Legislature convenes Jan. 5.

The memo cites several House and Senate rules, state laws and constitutional provisions for rules of decorum, for sergeants-at-arms to enforce rules, for Highway Patrol to provide security for both houses, and for each chamber to punish its members.

A lawmaker not wearing a mask could be found out of order by the House or Senate presiding officer and also be told to leave and participate remotely.

A constitutional provision allows each house to "punish its members or other persons for contempt or disorderly behavior in its presence." Penalties extend to a Class A misdemeanor, punishable by up to one year in prison, a $3,000 fine, or both. The House and Senate on a two-thirds vote also could expel "a member who commits egregious conduct."

Under state law, North Dakota Highway Patrol provides security to the Legislature and could remove a lawmaker deemed "a threat to the security or protection of the members of either house or both houses."

House Majority Leader Chet Pollert, R-Carrington, said the memo was sent in response to some House Republicans "questioning the constitutionality of what could happen and not happen" and to cite the authority in rules and law for the mask requirement and related enforcement. Legislative leaders in October voted 8-2 to endorse a mask mandate.

"Of course, you know, if someone has one offense, are you telling me we're going to do that? Of course not. Law has to be up to maximums and that's what that does," Pollert told the Tribune of the memo.

Legislators who oppose wearing a face mask have the option to work from office space elsewhere in the Capitol, Pollert added. Sick members also may work from home. Legislative leaders ramped up livestreaming technology and remote capabilities during the pandemic using federal CARES Act coronavirus aid.

The proposed mask rule and twice-weekly rapid-testing required for lawmakers already have opposition.

Rep. Rick Becker, R-Bismarck, said he's glad for the memo "because it provides clarification and the basis for why it's actually an enforceable mandate," but he disagrees with a mask mandate and required testing and would opt for remote participation.

"I'm not looking to get thrown out by the sergeant-at-arms even though I wholly disagree with it," said Becker, who would like to see masks encouraged but not required and remote participation available for people uncomfortable with no mandate, or who are elderly or vulnerable.

Another Bismarck-area representative said he won't support the proposal because he sees residents of his district who don't support mask mandates.

"I don't think they should force it on other people, and I think it's an individual right if they want to wear one," said Rep. Jeff Magrum, R-Hazelton, whose district reaches into southern Burleigh County. He said "I suppose I'll have to" wear a mask should the rule be adopted because "I've got a job to do for the district people."

Rep. Dan Ruby, R-Minot, opposes a mask requirement but expects one will be adopted. He sees it as "just wrong" that some lawmakers who have recovered from COVID-19 would be required to wear a mask. "It doesn't make sense to test people who have already had it," he added. He'd like to see testing first focus on antibodies, which would indicate that a person has contracted the virus but could have been asymptomatic.

Ruby plans to be in Bismarck in person, seeing his presence as more effective than remote participation in the session. Some rules could be scaled back as the session unfolds, he added. He said he doesn't "intend to make a scene and call that kind of attention to myself" regarding his opposition to a mask rule.

"We're elected to make laws. We're obligated to follow the laws and live under the laws we pass," he said.

Rep. Luke Simons, R-Dickinson, has called for people to urge their district lawmakers to oppose the mask mandate. Simons told the Tribune he is "100% pro-choice when it comes to masks" and said his district "doesn't believe in masks for the whole." He said he doubts the effectiveness of face masks and doesn't consider masks related to decorum.

"My next question would be, are they going to then say that I have to have vaccines next for part of decorum? Are they going to say that they're going to stick a swab down my throat for part of decorum?" Simons said. "Where does it stop?" 

House and Senate rules committees meet Tuesday afternoon to discuss proposed rules for the session for each chamber to adopt. The full House and Senate will take action Thursday morning.

Reach Jack Dura at 701-250-8225 or jack.dura@bismarcktribune.com.

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