NOTABLE CHANGES TO STATE EMERGENCY GOVERNANCE IN 2021
Bills to reform state emergency processes were introduced in 46 states in 2021, 36 of which made it out of committee, and 16 which ultimately passed into law. Out of those states, 11 made substantive changes as measured by this analysis: Arkansas, Florida, Idaho, Kansas, Kentucky, Montana, New Hampshire, North Carolina, Ohio, Pennsylvania, and Utah. Some bills were carried over into this year’s legislative session. However, if they become law, they will be considered reforms made in 2022 and included in future editions of this scorecard.
Pennsylvania, Kentucky, and North Carolina made the most progress toward a balanced emergency powers law last year. Arkansas, Ohio, and Montana also made substantial gains in their scores. Eight of the top 15 scoring states reformed their laws in 2021.
Pennsylvania voters, via a citizens’ referendum passed in May of 2021, reduced the length of each emergency declaration from 90 days to just 21 days, and specified that the legislature must approve each extension of an emergency. Like many states with similar provisions, the governor may not declare another emergency under the same circumstances as the declaration which was previously rescinded.
Many states raised the bar for legislative oversight of executive actions during their 2021 legislative sessions, either to maintain an emergency for extended periods of time or to check specific orders issued by the governor. In North Carolina, a reform passed in the state budget clarified the legislative consent requirement for extended emergencies. North Carolina law now requires, after 30 days, a majority consensus of the Council of State—the Lieutenant Governor, Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and Commissioner of Insurance—or a majority vote of the full legislature after 60 days to approve of an extension of a state of emergency.
Kentucky and Ohio, two states which previously did not provide any limitation on the duration of a governor’s state of emergency declaration, reformed their laws to limit the duration of emergency proclamations to 30 days and 90 days, respectively. Those states also initiated a process by which the legislature must approve extensions of a governor’s declaration of a state of emergency. In Ohio, after 90 days, the General Assembly must approve any extensions, but for 60 days at a time.
The Ohio General Assembly may now also “rescind, in whole or in part, health department actions to prevent spread of a contagious disease via concurrent resolution.” New Hampshire added a similar provision to its law, allowing the legislature to terminate “any emergency order” issued by the governor, in addition to the entire state of emergency, “by a majority vote of both the Senate and the House of Representatives.”
Among those states that made changes in 2021, Kansas was the least-improved, losing nine points from the first edition. It was the only state to lose points after amending its law to allow for multiple 30-day extensions, instead of just a single extension by a small group of state government leadership. Kansas’ 2021 reform bill changed the provision allowing for extension of an emergency “once for a specified period not to exceed 30 days,” to allowing for multiple extensions for “specified periods not to exceed 30 days each.” Despite this, Kansas maintained its second-place spot overall.
A few states which amended their laws in 2021 added provisions to expressly restrict the closure of schools or businesses, such as Kansas and Florida. These were presumably included in response to the lockdowns and distinction of “essential” and “non-essential” work and activities in the early days of the COVID-19 pandemic response. While these aspects of reform are not included in this scorecard, they may help protect citizens’ liberty in future emergencies.