Nearly every state in the country — including many that are under strict statewide mask mandates and facing alarming rates of new coronavirus infections — will allow people who refuse to wear masks to vote in person at polling stations, according to a TheNewstip survey.
TheNewstip asked all 50 states and Washington, DC, whether election officials would deny someone access to in-person voting if they failed to wear a mask. While the unprecedented dilemma might appear highly partisan, in reality, the vast majority of states, red and blue, have come to the same conclusion: No, they would not.
While many state election officials acknowledged that allowing people to vote mask-free could create unsafe conditions at polling sites — some of which have closed in recent weeks due to outbreaks — some said their state’s laws don’t allow election officials to deny someone the right to vote based on wearing or not wearing a mask. Others cited the US Constitution. Arizona Gov. Doug Ducey has been clear that “no mitigation strategies should impede a citizen’s First Amendment rights — no voter should be turned away on Election Day,” said a spokesperson.
Kansas Secretary of State Scott Schwab said earlier this month, “Exercising one’s fundamental right to vote is not, and should not be, contingent upon whether or not they choose to wear a mask.”
Oregon and Washington, DC, are taking the hardest line leading up to the election. Oregon was the singular state that told TheNewstip it would bar maskless people from voting in person. But the state is in a unique position: Oregon votes entirely by mail and has for over 20 years. However, the state does have county election offices where people can use a privacy booth to vote and masks are required inside, said Andrea Chiapella, legislative director for Oregon’s secretary of state.
“No mask, no entry into any indoor space in the state,” she clarified.
Four other states — Colorado, Washington, Hawaii, and Utah — administer elections by mail. But those states told TheNewstip that in-person voters are encouraged to wear masks but would not be turned away if they don’t.
Washington, DC, said that voters who won’t wear masks can use curbside voting services, allowing them to vote from their cars. If those aren’t available at their voting center, they’ll have to find a place where it is. If they refuse to leave, they’re out of luck.
“Let’s hope it doesn’t come to that,” said Nick Jacobs, a public information officer for the DC Board of Elections. But if it does, “we won’t let you in,” Jacobs confirmed.
Just two states, Montana and Missouri, insisted that the decision to enforce masks at the polls was up to each jurisdiction or county. (Other states also did so at first, but later clarified that individual areas could not deny people their right to vote.)
Unsurprisingly, some states seemed loath to admit people would be allowed to vote without a mask.
New York Gov. Andrew Cuomo signed an executive order this summer prior to the June primaries requiring face coverings at the polls for anyone over age 2 or medically able. But New York’s election policies make clear that voters who don’t fit that criteria and still won’t wear masks will be able to cast their vote.
“If a voter refuses to wear a mask, poll workers should consider providing the voter the opportunity to cast a ballot using any alternative voting locations or methods available at the poll site, if available,” joint guidelines from the state’s elections board and department of health released in June state. “Otherwise, the voter should be allowed to vote normally, and poll workers should follow safety and cleaning protocols.”
Legal battles have played out over this dispute from Wisconsin to Minnesota. Earlier this year, Texas NAACP and Mi Familia Vota, a national Latino organization, sued Texas, which is currently under a statewide mask mandate but created an exemption for polling stations. On Friday, the 5th Circuit upheld the exemption, allowing Texans to vote or work at polling locations without a mask. The court overturned a Wednesday ruling from US District Judge Jason Pulliam in San Antonio, who had ruled that the mask exemption “creates a discriminatory burden on Black and Latino voters.” Pullman had written that the plaintiffs argued not requiring masks would force voters “to make an unacceptable choice with respect to the 2020 election: exercising their right to vote – or – protecting their own health and lives and that of their loved ones and community by staying home.”
“We shouldn’t have to choose between risking our lives and using our constitutionally protected right to vote,” Kristian Ramos, a Democratic strategist who specializes in the Latino vote, told TheNewstip ahead of Friday’s ruling.
In a statement, the president of the Texas NAACP said the group had “received reports of poll watchers who were using their maskless presence to approach and intimidate minority voters.”
The Texas attorney general’s office had argued that the majority of states don’t require masks at polling places and said the “unprecedented” injunction to require masks would “create extensive confusion, disenfranchise Texas voters, and force local election officials to divert scarce resources from important tasks.”
The governor’s mask exemption for voters and poll workers was meant to “protect important rights such as the right to vote, ensuring that no Texan would be turned away from the polls over having to wear a mask,” the state said in its filing. If masks were required, “countless Texas citizens” would face a choice: “wear a mask, or else lose the right to vote.”
Justin Levitt, a constitutional law professor at Loyola Law School, said it was “entirely constitutional” to turn people away if they refuse to wear a mask. The Supreme Court says that it evaluates alleged burdens on the vote by weighing the degree of the burden against the magnitude of the state’s justification for the imposition, he explained. Since the courts, including the Supreme Court, have approved state restrictions “far more burdensome than the comparative cost of wearing a mask, with far less justification than the compelling interest in physical public safety,” a mask requirement “is easily constitutional,” he said.
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“If you are a person who just doesn’t want to wear a mask because you think it’s your constitutional right, I strongly think you should be turned away,” said Rosie Davis, whose mother died of COVID-19 in a Texas nursing home in May. At the time, there was no mask mandate there, said Davis, who is now a member of COVID Survivors for Change. Since then, some polling stations in her state have had to temporarily shut down because workers tested positive for COVID-19, she said, pointing to outbreaks in Lewisville and Tarrant County, Texas.
She will be voting for Biden next week, even though she doesn’t usually vote. “Losing my mom from COVID is what fueled me to vote this year,” she said.
She’s ready to stand in line for hours if necessary, but wishes she didn’t have to risk infection in the process.
Just because states won’t prevent maskless voters from entering polling stations doesn’t mean they want them there. Many states are doing all they can to prevent what one state election official said was a “worst-case scenario” — voters refusing to wear masks and insisting on voting indoors. Poll workers are often senior citizens at higher risk of serious illness or death from the coronavirus. Maskless voters could put these workers in jeopardy.
Fifteen states and DC told TheNewstip that poll workers were required to wear masks on the job, while others didn’t specify or said the same rules applied to voters and poll workers alike — masks are encouraged, not required.
As a rise in COVID-19 cases nationwide leads to spikes across the country, most states said they would provide polling locations with extra masks for voters who didn’t bring their own, along with other personal protective equipment such as gloves, plus hand sanitizer, social distancing placards, and floor markers. Many states will offer voters who won’t wear masks the ability to vote outdoors, from their cars, or in other secure areas — options that are often already available to people with disabilities or mobility concerns.
Others said they’d just try to get those people out of the room as soon as possible.
“If someone comes in not wearing a mask, we’re treating that as a political statement,” said Jacob Gansert, a coordinator for the Rhode Island Board of Elections. “If someone comes in and has a big political sign we would ask them to vote quickly and leave to not influence other voters, and we’re treating masks the same way.”
In Minnesota, voters who decline to wear a mask or vote outside will still be allowed to vote, but will have their name recorded “as in violation of the Governor’s mask requirement and reported to the appropriate authorities,” a spokesperson said. In September, Minnesota Secretary of State Steve Simon told local outlet MPR News that voters who refuse to wear masks could potentially be subject to a $100 fine.
A spokesperson for Maryland’s State Board of Elections told TheNewstip that someone who refused to wear a mask or use the provisional voting process outside of the voting room would still “be permitted to vote.” But earlier this week, a Harford County, Maryland, man was arrested at an early-voting precinct after doing just that, according to a Facebook post by the county sheriff, which said the man repeatedly refused “to comply” with directives to wear a mask. He was charged with violating a state emergency order and trespassing.
The man “was not banned from the location, and is still able to cast his ballot,” the post noted.
Some activists raised concerns about how states would enforce mask mandates at the polls, given that while minority groups, especially Black people, are at increased risk from COVID-19, they are also more likely to be harmed by police.
“Any sort of mask mandate is always going to oppress communities of color harder because the institutions enforcing those rules are inherently racist,” said Tyler McFadden, executive director of the National Voter Protection Action Fund. “Whenever those rules are enforced, it affects Black people like me.“