[EL] Voter ID req. vs. mask requirement?

[Kogan, Vladimir]

My wife is in the process of completing her training to be a poll worker, and part of the training discusses what to do if a voter shows up and insists on voting without a mask. The training says to encourage the voter to cast his/her ballot outside curbside - but stresses that, if the voter insists, he/she must be allowed to cast a ballot inside at the voting location. Our secretary of state has stated<https://radio.wosu.org/post/ohio-requires-face-masks-polling-places-what-happens-if-voter-refuses#stream/0> that "voters are guaranteed the right to vote in the U.S. Constitution, so he has to allow them into the polls if they insist."

Ohio is a strict (non-photo) voter ID law state, so my wife noted the interesting asymmetry here . It seems like one could make a strong argument that, under Crawford v. Marion County Election Board, requiring a mask as a precondition for voting in person would be entirely reasonable. The state interest in limiting the spread of a deadly virus seems at least as weighty as the interests offered in Crawford. And the empirical evidence for the effectiveness of the policy is also stronger - masks are at least as effective in reducing COVID risk as voter IDs are reducing risk of fraud, etc. The burdens, on the other hand, seem quite trivial. Masks will be provided and voters who don't want to wear a mask can vote by mail or curbside.

Certainly, there is a small number of voters with medical conditions and/or other trauma for whom wearing a mask is particularly burdensome. But Justice Scalia's concurrence in Crawford argues that the Anderson-Burdick balancing test is about the burden for the average voter, not the burdens faced by a small, select subset. A mask requirement, like Indiana's photo-identification law, would be "generally applicable, nondiscriminatory voting regulation, and our precedents refute the view that individual impacts are relevant to determining the severity of the burden it imposes."

I'm curious anyone has thought/written about this, or whether this has been raised in any litigation this year?

Thanks!

Vlad Kogan

[The Ohio State University]
Vladimir Kogan, Associate Professor and Director of Undergraduate Studies
Department of Political Science
2004 Derby Hall | 154 N. Oval Mall, Columbus, OH 43210-1373
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http://u.osu.edu/kogan.18/
kogan.18 at osu.edu<mailto:kogan.18 at osu.edu>
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