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

Thu Oct 29 16:15:53 PDT 2020

. . . to clarify, the 5th Cir order in Texas is a temporary stay so
technically the issue is still open though I think the writing is on the
wall.

Sent from mobile

On Thu, Oct 29, 2020 at 4:58 PM Doug Spencer <dougspencer at gmail.com> wrote:

> A quick follow up to Justin’s nice summary: the 5th Circuit stayed Judge
> Pulliam’s order in Texas a few hours ago.
>
>
> https://www.houstonchronicle.com/politics/texas/article/U-S-district-judge-rules-Texas-voters-must-wear-15681216.php
>
> So voters in Texas won’t be required to wear masks at the polls after all.
>
> I think Vlad’s observation is a nice one, and another reminder that
> Burdick is likely a dead letter at this point.
>
> Doug
>
>
>
>
>
> On Thu, Oct 29, 2020 at 4:46 PM Douglas, Joshua A. <joshuadouglas at uky.edu>
> wrote:
>
>> There has been at least one instance (in Fort Lauderdale) where voters
>> were turned away from the polls for failing to wear a mask (they said for
>> medical reasons); police were called; and then they were eventually allowed
>> to vote. More here:
>> https://www.sun-sentinel.com/news/politics/elections/fl-ne-police-called-on-maskless-voters-coral-ridge-20201019-acudv726fjcmjnnloejexdvpaq-story.html
>>
>> <https://www.sun-sentinel.com/news/politics/elections/fl-ne-police-called-on-maskless-voters-coral-ridge-20201019-acudv726fjcmjnnloejexdvpaq-story.html>
>> Four Broward voters refused to wear masks but were allowed to vote anyway
>> <https://www.sun-sentinel.com/news/politics/elections/fl-ne-police-called-on-maskless-voters-coral-ridge-20201019-acudv726fjcmjnnloejexdvpaq-story.html>
>> www.sun-sentinel.com
>>
>> ------------------------------
>> *From:* Law-election <law-election-bounces at department-lists.uci.edu> on
>> behalf of Pildes, Rick <rick.pildes at nyu.edu>
>> *Sent:* Thursday, October 29, 2020 6:41 PM
>> *To:* Jessie Allen <jessieallen101 at gmail.com>; 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?
>>
>> CAUTION: External Sender
>>
>> 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> 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://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.proofpoint.com%2Fv2%2Furl%3Fu%3Dhttps-3A__radio.wosu.org_post_ohio-2Drequires-2Dface-2Dmasks-2Dpolling-2Dplaces-2Dwhat-2Dhappens-2Dif-2Dvoter-2Drefuses-23stream_0%26d%3DDwMFaQ%26c%3DslrrB7dE8n7gBJbeO0g-IQ%26r%3Dv3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk%26m%3DZRPvitxSCofAH4f8HjhjPh_Qd6dRjYg7CfMWuptgIzE%26s%3D64NhiOA3onfXwU9Bi7W4MizjYTRo9yom9Ija6eBTRvM%26e%3D&data=04%7C01%7Cjoshuadouglas%40uky.edu%7Cc385f3f86e8043cf16ff08d87c5bf037%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637396081601824977%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=QsuH5hlxmzHrEQyz1SEfsb9zE9O74koEUSTFE0Auw3Y%3D&reserved=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
>> <https://www.google.com/maps/search/154+N.+Oval+Mall,+Columbus,+OH+43210?entry=gmail&source=g>
>> -1373
>>
>> 510/415-4074 Mobile
>>
>> 614/292-9498 Office
>>
>> 614/292-1146
>>
>> http://u.osu.edu/kogan.18/
>> <https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.proofpoint.com%2Fv2%2Furl%3Fu%3Dhttp-3A__u.osu.edu_kogan.18_%26d%3DDwMFaQ%26c%3DslrrB7dE8n7gBJbeO0g-IQ%26r%3Dv3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk%26m%3DZRPvitxSCofAH4f8HjhjPh_Qd6dRjYg7CfMWuptgIzE%26s%3DEDxHkHRO_ki8TIcWapsIHs22u3b1LFXEDgoC41VgTSw%26e%3D&data=04%7C01%7Cjoshuadouglas%40uky.edu%7Cc385f3f86e8043cf16ff08d87c5bf037%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637396081601824977%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=vg2qA8kRCGPTuxg5QT9O0luWaBNao7Y5PFJbO4y1w3w%3D&reserved=0>
>>
>> kogan.18 at osu.edu
>>
>> [image: Twitter icon]@vkoganpolisci
>> <https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.proofpoint.com%2Fv2%2Furl%3Fu%3Dhttps-3A__twitter.com_vkoganpolisci%26d%3DDwMFaQ%26c%3DslrrB7dE8n7gBJbeO0g-IQ%26r%3Dv3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk%26m%3DZRPvitxSCofAH4f8HjhjPh_Qd6dRjYg7CfMWuptgIzE%26s%3DzE4I7ulVmooJ1sDQF2rSHSwq2jeKF2rLRm_ORMevWkk%26e%3D&data=04%7C01%7Cjoshuadouglas%40uky.edu%7Cc385f3f86e8043cf16ff08d87c5bf037%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637396081601834972%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=f1e9ICU%2Fe8BDWv2dYGAZETwICpU5nife0ZhSWprHKUM%3D&reserved=0>
>>
>>
>>
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>>
>>
>>
>> --
>>
>> Jessie Allen
>> AssociateProfessor
>> University of Pittsburgh School of Law
>> 3900 Forbes Avenue
>> <https://www.google.com/maps/search/3900+Forbes+Avenue+%0D%0APittsburgh,+PA+15260?entry=gmail&source=g>
>> Pittsburgh, PA 15260
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>> 412-624-2175
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