The Volokh Conspiracy

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Voting Rights

Mask Mandates and the Right to Vote

Would requiring masks for in-person voting infringe constitutional rights?

|The Volokh Conspiracy |

Due to Covid-19, this fall's election is likely to see record absentee voting and vote-by-mail. Many voters will nonetheless choose to vote in person at their local polling places, but questions remain about the best way to administer a voting system during a pandemic.

What can local election officials do to ensue that people are able to vote in a safe manner. Some jurisdictions are reportedly exploring moving polling places to facilities, such as stadiums, where there will be ample space for lines with social distancing. Fewer, larger polling places that can accommodate more people may also help address concerns about a shortage of poll workers in some jurisdictions.

Many state governors have imposed mask mandates in public places, particularly where people congregate. Presumably these requirements will apply at polling locations. Could such requirements be open to legal challenge? Does the legal authority to impose a mask requirement when entering a store extend to the polling place? Or would such a requirement risk unduly burdening the constitutional right to vote? Masks may not be particularly expensive, but they may still be difficult to obtain for some people, so is it constitutional to require them? Even small burdens on the right to vote may raise constitutional concerns.

I would think a mask requirement would be constitutional under Crawford v. Marion County Election Board, in which the Supreme Court upheld a photo ID requirement for voting in person. If the state's interest in election integrity was sufficient to require a photo ID, the state's interest in preventing the spread of Covid-19 should be sufficient to justify requiring a mask. The risk of Covid-19 is far greater than the risk of in-person voter fraud. The burden in Crawford was also deemed rather minimal, in large part because the state did not charge for identification. The burden was gong to get a qualifying ID, not paying for one.

Under Crawford, the easiest solution would be for polling locations to provide masks to those who show up to vote without one (much like many restaurants and stores do in jurisdictions with mask mandates), but this could be a significant added expense for election authorities, particularly in poorer jurisdictions. Election administration is underfunded in much of the country already, even without this added expense. Those communities that lack the resources to ensure an adequate number of voting machines are not likely to have the cash to spare for extra masks.

Easier absentee voting, early voting, and vote-by-mail would also lessen the burden of such a requirement, but not everyone can or will avail themselves of such opportunities. Presumably some share of those who wait to vote until election day are people who are less concerned about Covid-19, and who might be less inclined to wear a mask. We have all seen viral videos of people having meltdowns when asked to wear a mask to go into the supermarket. What happens when someone is denied the right to vote? If I am correct that Crawford controls (and I would be curious whether readers disagree with me on that point), I think election authorities could deny entrance to a would-be voter without a mask, particularly if masks were made available to those who come without one.

One other issue worth considering is how mask requirements may interact with local laws requiring photo ID. After all, the whole point of such requirements is to confirm the identity of the voter, and that is harder to do if the voter is wearing a mask. If a governor or state health director has imposed a mask mandate, but state election laws require photo ID, which must yield? Are would be voters required to remove their masks for the purpose of identification? (And who would want to be a poll worker under such conditions?) The risks from Covid-19 are substantially greater than the risks of voter fraud, so does that mean voter ID requirements would be trumped by mask mandates? In many jurisdictions state law may provide an answer, but I would also be curious whether there is a case that the Constitution does too.

This is another set of things election officials should think about between now and November.