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

[Jessie Allen]

I think it is pretty clear that it is a political choice not to require
masks -- not a constitutional interpretation.  You are right that the
burdens are comparatively trivial -- especially in states where voters
could choose to avoid the polls altogether and vote by mail.  Iin
Pennsylvania masks are not required at the polls but they are in churches
and synagogues, and worshipers probably can't pray by mail.  State
officials have apparently made the calculation that the political
polarization over mask wearing is so great that enforcing mask orders at
the polls would risk disruptions that outweigh the health risks. That is
certainly a questionable public health result, especially for poll workers,
but I suppose understandable.
Jessie Allen

On Thu, Oct 29, 2020 at 6:06 PM Kogan, Vladimir <kogan.18 at osu.edu> wrote:

> 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
>
>
>
> [image: 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
>
> 510/415-4074 Mobile
>
> 614/292-9498 Office
>
> 614/292-1146
>
> http://u.osu.edu/kogan.18/
>
> kogan.18 at osu.edu
>
> [image: Twitter icon]@vkoganpolisci <https://twitter.com/vkoganpolisci>
>
>
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-- 
Jessie Allen
AssociateProfessor
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA 15260
412-624-2175
http://blackstoneweekly.wordpress.com/
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