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Erick Kaardal
“The governor is trying to have it both ways,” says plaintiff’s attorney Erick Kaardal. (FIle photo)

Bar Buzz: To mask, or not to mask

The governor’s face mask order creates conflicting laws that stymie Minnesota voters, a conservative group says in an Aug. 4 federal lawsuit. It is asking Minnesota’s U.S. District Court to step in and straighten things out.

“No one in this case is saying that mask wearing isn’t a good thing,” says the complaint filed by Minnesota Voters Alliance and several individual voters. “It’s just in this case, the state of Minnesota has created conflicting laws where people are criminally prosecuted for wearing a mask and for not wearing a mask.”

According to the suit, the executive order that requires Minnesotans to wear face masks indoors when in public conflicts with Minn. Stat. Sec. 609.735. That law bars people from concealing their identity in public using capes, masks, or anything else.

That’ll be a problem when it’s time for voters to cast ballots in-person, plaintiffs say. It means that people could be charged both for wearing a mask at the polls, or for not wearing one.

“The governor is trying to have it both ways,” plaintiff’s attorney Erick Kaardal said.

The group initially announced it would seek an immediate restraining order and preliminary injunction to bar enforcement of the conflicting laws during Tuesday’s primary election.

However, on Thursday, Kaardal said his clients have backed away from that plan and will instead focus on the November general election.

“After the primary, we’ll file a motion for a temporary restraining order and preliminary injunction pointed at the general election,” the attorney said. “That will give us and the judge time to do it right. We didn’t want a rush job.”

The case has been assigned to U.S. District Court Judge Patrick J. Schiltz.

In addition the Minnesota Voters Alliance, plaintiffs include Andrew Cilek, Kim Crockett, Craig Anderson, Yvonne Hundshamer and Craig Jones. All live in either Hennepin County or Ramsey County.

Named defendants include Walz, Minnesota Attorney General Keith Ellison, Secretary of State Steve Simon and several county prosecutors and election officials.

In a press conference Tuesday, Kaardal said his clients have signed a declaration stating they won’t participate at the polls in person, for fear of prosecution.

The confusion also will prevent the Minnesota Voters Alliance from engaging in its usual public election education and advocacy efforts, with which they try to influence public opinion, Kaardal said.

“They can’t do that anymore,” Kaardal said. “So here you have the state of Minnesota interfering with the Minnesota Voters Alliance’s political activities.”

Walz’s office has said the conflicting laws were addressed in his executive order, because it exempts mask wearing from the identity-concealment statute during the term of the peacetime emergency.

Attorney General Ellison also weighed in with a written statement. He said the governor has been responsive to circumstances as they emerge during the pandemic and has tailored his orders accordingly.

“My office and I review every executive order for its compliance with the law and state and federal constitutions,” Ellison said. “I stand behind the legality and constitutionality of this executive order. We will defend it strongly in court just as we have so far successfully defended others in court.”

The group’s seven-count complaint, which is unchanged despite the group’s new focus on the general election, asks the federal court to declare the conflicting laws unconstitutional, both facially and as applied, under the First and Fourteenth Amendments.

They also want Walz’s mask mandate, Executive Order 20-81, declared invalid under the Minnesota Constitution. The parties additionally want a preliminary and permanent injunction on enforcement of the contradictory laws, plus attorney fees and court costs.

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About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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