The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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


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.