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

Thu Oct 29 15:41:46 PDT 2020

Agree with Jessie – it might be unconstitutional to condition voting on willingness to wear a mask, but even if it is constitutional, the last thing state officials want is confrontations at the polls over this.

From: Law-election [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jessie Allen
Sent: Thursday, October 29, 2020 6:25 PM
To: Kogan, Vladimir <kogan.18 at osu.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Voter ID req. vs. mask requirement?

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<mailto: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://urldefense.proofpoint.com/v2/url?u=https-3A__radio.wosu.org_post_ohio-2Drequires-2Dface-2Dmasks-2Dpolling-2Dplaces-2Dwhat-2Dhappens-2Dif-2Dvoter-2Drefuses-23stream_0&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=ZRPvitxSCofAH4f8HjhjPh_Qd6dRjYg7CfMWuptgIzE&s=64NhiOA3onfXwU9Bi7W4MizjYTRo9yom9Ija6eBTRvM&e=> 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

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Jessie Allen
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