Alabama’s top election officials have made it clear that no voter can be turned away from the polls for not wearing a face-covering during the July 14 runoff, but the city of Mobile is continuing to argue it can enforce a citywide mask requirement at polling precincts it owns.
On Monday, Parks and Recreation Director Shonnda Smith emailed election officials informing them that, due to the city’s ordinance requiring face coverings in public, voters will have to wear a mask in order to enter any city-owned facility serving as a voting precinct during the July 14 election.
Though Smith’s email didn’t mention requiring citizens to wear masks in order to vote, it effectively would have done that at eight polling locations owned by the city of Mobile — the Connie Hudson Senior Center, the Mobile Museum of Art, the Mobile Civic Center, Hank Aaron Stadium and the Robert Hope, Joseph Dotch, Michael Figures and Thomas Sullivan community centers.
Mobile County Probate Judge Don Davis, the county’s chief elections officer, responded to Smith, informing her that Secretary of State of John Merrill’s office had previously advised election officials across the state they could not implement COVID-19 protocols that “hinder or prevent voters from entering a polling place” — even if voters appear to be or are actually ill.
In response, city attorney Ricardo Woods clarified the city wasn’t looking to prevent anyone from voting, but was trying to develop a plan for how to follow its own ordinance and keep voters safe. He added turning voters away for not wearing a mask could cause “chaos” or amount to “voter suppression.”
“The enforcement of the ordinance is relaxed already with our police officers and employees handing out face coverings instead of citations,” Woods wrote. “If a person has a medical reason or a mental health reason for refusing to wear a face-covering then he or she is exempt from the ordinance”
Woods added that “compliance rather than punishment is [the city’s] goal,” and went on to say it might be better to hand out face coverings to voters who don’t have them or provide “separate voting areas for sick people or people who refuse to wear a face-covering” — an alternative Merrill’s office did mention as a possibility in guidance sent out to election officials across Alabama June 15.
Speaking to Lagniappe, Davis said his staff have already purchased additional face masks and have trained poll workers to hand them out to anyone who isn’t wearing one when they arrive. Given the political division surrounding masks, it’s possible someone may still refuse to wear one, and in those cases, Davis has maintained poll workers “cannot mandate they wear a mask in order to vote.”
And while the idea of “separate voting areas,” may sound like a simple fix, Davis said there are a number of logistical and potential legal issues that would make setting up something like that difficult for election officials, even if they weren’t being asked to do it less than a week from the election.
“They have to vote at the poll of the precinct where they live, and in the vast majority of the polls, that’s just not physically possible,” Davis told Lagniappe Thursday. “If we offer something at one poll, we’ve got to do it at every poll, and we don’t have the manpower, the equipment or the voting machines we’d need to do that. We certainly can’t create a system like that two or three days before an election.”
Like curbside voting and other options recommended as safer alternatives during the ongoing pandemic, Davis said having two separate areas could also create ballot security issues. Normally, on Election Day, a voter completes their ballot and physically places it into the voting machine themselves.
In a scenario with the two separate areas for voters, a maskless voter wouldn’t be able to enter the “city facility” to access the voting machines, so there would be at least some period of time where poll workers would have access to voters’ ballots, which could create an opportunity for manipulation.
As the coordinator of the elections process, Davis said his office and the poll workers hired by the Mobile County Commission run the daily operations at the polls on the election, but the city could still insist its properties not be used. Previously, Woods said he was certain no one at the city was “contemplating that.”
When issues with the city-owned voting precincts were raised on Monday, Davis’ staff reached out to Alabama Attorney General Steve Marshall’s office seeking guidance on the matter.
The answers received Thursday was pretty clear: “a voter cannot be required to wear a mask in an election poll to vote.” The guidance said that is true even in jurisdictions requiring residents to wear masks in public places and even in facilities that would normally require a mask in order to enter.
Before the guidance came down from Montgomery, Davis expressed some frustration about the situation and insisted everything possible will be done to make the July 14 runoff as safe as possible. He noted the Mobile County Commission has spent close to $500,000 on additional protective equipment and sanitation efforts, and said officials have strongly encouraged voters to wear masks and will be providing them at polls on Election Day.
“We all want voters to wear a mask, and we’re encouraging them to do so, but we cannot mandate that they wear a mask in order to vote. Constitutional rights and state law trump city ordinances,” Davis said. “We’ve asked the city to tell its [community center] directors to back off on the instructions given earlier this week, and they’ve just not been willing to do that. To be honest, it’s been very disappointing.”
Thank you for clarifying a voter has the right to vote on Tues regardless if they are not wearing a mask- per AL law. Hopefully everyone will still follow CDC guidelines but they can’t be denied the right to vote @JohnHMerrill @AGSteveMarshall #alpolitics pic.twitter.com/zJb3JJCdzs
— Terry Lathan (@ChairmanLathan) July 10, 2020
After this story was initially published, Woods said he was glad Marshall’s office had clarified the issue, but he reiterated the city of Mobile never had any intention of turning people away at the polls.
At the polls on July 14, Woods said voters will be offered a mask if they don’t have one and if they refuse for any “medical, mental or political” reason they will still be allowed to cast a ballot, but will not be able to go anywhere else inside of a city facility.
He said some people seem to be putting a greater focus on what might happen because of the city’s masking ordinance instead of why it was passed by the Mobile City Council in the first place.
“The ordinance asks people to wear masks with the idea that a penalty can be exercised, and just like with speeding on the highway, that typically leads to most people complying,” Woods said. “The city has never taken the position that a city ordinance somehow supersedes state law. What we’re trying to do is make sure the overwhelming majority complies with the ordinance in order to prevent the spread of COVID-19 during this pandemic.”
The confusion over how mandated maskings will impact Election Day hasn’t been isolated to Mobile and has been raised in other cities and counties that have enacted similar ordinances and public health orders.
So far, Madison County, Jefferson County and cities like Tuscaloosa, Birmingham, Selma and Montgomery have adopted similar resolutions. Mobile County has a similar order for its unincorporated areas. Making matters worse, elected officials in some of those areas have made public statements in statewide media suggesting their masking requirements would apply at the polls on July 14.
Merrill and Marshall issued a joint press release Friday stating that would be illegal.
“If you want to cast a ballot in this state, you must be at least eighteen, a United States citizen, a resident of Alabama, you cannot have been convicted of a disqualifying felony and you must have a valid photo ID,” Merrill told Lagniappe. “If you meet those five standards, you can cast the ballot for the candidate of your choice. State law doesn’t say anything about having to wear a mask in order to vote.”
While Merrill said he understands precautions need to be taken to slow the spread of COVID-19, he encouraged any Alabamian who is prevented from voting or severely encumbered because of health restrictions at the polls to file a complaint with his office at (334) 242-7200 or online at www.https://www.sos.alabama.gov/.
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