Mask Mandate (Including at Polling Places) Doesn't Violate Elections Clause

|The Volokh Conspiracy |

From yesterday's Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.); seems quite right to me:

The Elections Clause provides as follows: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

Plaintiffs' claim … seems to be that EO 20-81 in combination with the Secretary of State's guidance [about how to implement the mask mandate at polling places] contravenes the Elections Clause… [But] Plaintiffs have not cited, and the Court has not found, a single case holding that a generally applicable provision that incidentally applies at a polling place constitutes a regulation of the "Times, Places and Manner of holding Elections." Cf. Cook v. Gralike (2001) (holding that the challenged law "bears no relation to the 'manner' of elections as we understand it, for in our commonsense view that term encompasses matters like 'notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.'"

The fact that the Secretary of State provided advice as to how to implement EO 20-81 at polling places does not somehow turn EO 20-81 into a law regarding the "Manner of holding elections." As noted, the Secretary of State's memorandum is not a law and does not purport to be binding.

The Court rejects the notion that the state official charged with overseeing elections cannot provide guidance concerning how to implement a generally applicable provision at polling places without somehow running afoul of the Elections Clause. If that were the case, election officials would be barred from providing advice on a whole range of subjects, from how to handle disruptive voters to how to accommodate voters with disabilities. Plaintiffs' claim under the Elections Clause is plainly meritless.

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  1. Someone needs to forward this to all those Obama judges who are rewriting election laws.

    Judges are nowhere in there.

  2. Writing something like “Freedom, not Masks” on a mask, and dangling it from your ear would then be protected?

    1. Did you mean to post this on the thread dealing with the free speech holding of the case? (If you did, and you repost it there, I’ll be glad to respond there.)

      1. He sure as heck can write that on a mask and dangle it from his ear. He just better be wearing another mask across his mouth.

  3. But this still leaves open many critical questions. First, if a polling place runs out of free masks to distribute to those who arrive lacking them, what happens: does the polling place implement a poll tax (in the form of “you must purchase a mask to vote) or does the polling place refuse entry to the voter? Second, if an elderly voter residing in an aggregate care center wants to vote in person, will the act of voting subject that elderly voter to 14-day isolation upon her return to the care center?

    The second question is a hot topic in Virginia, where gubernatorial orders disenfranchise — or at least disincentivize — voting by those residing in assisted living facilities: many elders who wish to vote are afraid to do so because of the 14-day penalty — 14 days of solitary confinement — which will result. Many of these same elders [perhaps rightly, perhaps not] mistrust the postal service and therefore do not believe that voting by mail is an equivalent action: can it be said as certain that voting by mail _is_ equivalent to voting in person? [In parallel, can a person confined to a wheelchair (for example) be _required_ to vote by mail simply because the polling place does not wish to be wheelchair accessible?]

    1. Probably time that institutions accept current best practices, rather than those hastily imposed in March when there was greater uncertainty.
      If a person, anyone including senior residential persons, uses conventional precautions of a mask, hand hygiene, distance, and limited time in confined proximity, then their risk of contagion is acceptably low, given that the same precautions should be in place at their residence anyway.

      As for polling places running out of masks, that might be more likely in redder areas, where a greater fraction of maskless person might hit the polls. Indeed, it could be a local election chaos strategy, to systematically attempt to cause a polling place to run out of masks for precisely the reason to sow greater election chaos.

      I’m an election judge for the first time this year. Will certainly be the youngest there, in my 50’s. I’ve been accumulating cheap masks so that if such happens, I can probably keep my polling place running even if the county has not supplied us with enough.

      1. I agree that it is “Probably time that institutions accept current best practices,” but in many localities accepting current best practices means accepting rather hefty fines. Interestingly, localities (such as OK, AK, WY, NH, MO, KS, MT, et c) which have had more relaxed (or no) mandates have the lowest rate-of-rise of infection: globally, common sense seems to be more effective than domination.

        The measures you suggest seem prudent; however, I hear little talk of such prudent measures.

  4. If a EO mandated you had to wear pants while voting, that’s incidental, too, assuming it was part of a general requirement not specifically tied to voting, and they were otherwise authorized for such a regulation because the legislature gave it to them because they are scared and lazy.

    1. But what if the executive was _not_ “authorized [to make] such a regulation [by] the legislature”? What if it was just an executive whim?
      Blackstone’s dress-for-the-dead example is more complicated than it first appears (“the ftatute of king Edward IV [3 Edw. IV. c. 5], which forbad the fine gentlemen of thofe times (under the degree of a lord) to wear pikes upon their fhoes or boots of more than two inches in length, was a law that favoured of oppreffion ; becaufe, however ridiculous the fafhion then in ufe might appear, the reftraining it by pecuniary penalties could ferve no purpofe of common utility. But the ftatute of king Charles II [30 Car. II. ft. 1. c. 3], which prefcribes a thing feemingly as indifferent ; viz. a drefs for the dead, who are all ordered to be buried in woollen; is a law confiftent with public liberty, for it encourages the ftaple trade, on which in great meafure depends the univerfal good of the nation. So that laws, wen prudently framed, are by no means fubverfive but rather introductive of liberty ; for (as Mr Locke has well obferved [On Gov. p. 2. § 57]) where there is no law, there is no freedom. But then, on the other hand, that conftitution or frame of government, that fyftem of laws, is alone calculated to maintain civil liberty, which leaves the fubject entire mafter of his own conduct, except in thofe points wherein the public good requires fome direction or reftraint.”)

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