Voters in Fairfax, Virginia, cast ballots while spaced apart due to Covid-19 on September 18, 2020.
CNN  — 

Even as coronavirus cases are surging less than two weeks before Election Day, most states with mask mandates won’t force voters to cover their faces while they cast their ballots.

Secretaries of state or election boards in 29 of the 33 states with current mask mandates told CNN that their rules would not prevent someone who refused to wear a mask from casting a vote. The four other states did not respond to questions about the issue.

Elections officials in nearly all of those states say masks are strongly encouraged for people voting in person. Many states will be offering voters free masks at polling places, as well as requiring poll workers to wear masks.

And more than a dozen states say voters who refuse to wear a mask will have to follow special procedures, like filling out their ballot curbside or in an isolated area of a polling place away from other voters.

Still, “we will not be turning voters away for not wearing a face covering, as voting is a constitutional right,” said Kristen Muszynski, a spokesperson for the Maine secretary of state – a sentiment echoed by election administrators around the country.

Officials are facing a delicate balancing act between voting rights and public health in a country where refusing to put on a mask has become a kind of political statement.

Some health experts worry that a potential lack of mask-wearing could turn Election Day into a superspreader event at some voting sites. At the same time, mask rules have already sparked polling place confrontations.

Police officers and a poll worker talk with four voters who refused to wear masks during early voting in Fort Lauderdale, Florida, on Monday. The voters, who said they had severe asthma, were eventually allowed to cast their ballots. (Courtesy Fort Lauderdale Police Department)

In Fort Lauderdale, police were called to an early voting site Monday after four voters ignored poll workers’ instructions to don masks, saying they had severe asthma, an incident first reported by the South Florida Sun Sentinel. (Florida doesn’t have a statewide mask mandate, leaving the rules up to individual counties.) After consulting with a legal adviser, the officers told elections officials to allow the voters to cast their ballots as long as they didn’t create a disturbance, according to the police report.

“We’re staying very far from people and we’re not causing any commotion,” one of the voters told a police officer, body camera footage provided to CNN through a records request shows.

“It’s voter suppression,” another said.

Patchwork of mask rules

Fear over coronavirus has sparked an unprecedented wave of mail-in voting around the country, with more than 33 million voters casting their ballots through the mail as of Thursday.

But millions of other Americans will vote in person, either on Election Day or during early voting over the next two weeks. Voters casting their ballots in person will face a patchwork of rules across the country, with some jurisdictions enforcing their mask orders more strictly and others saying they have no legal authority to prevent voters from going maskless.

In Maryland, “voters who refuse to wear a mask and do not provide a medical reason or acceptable disability” will be required to vote a provisional ballot, which can be accepted by election judges outside of the building or in a part of the building away from other voters, said Bruce Miller, a spokesperson for the state’s Board of Elections.

“The election judges can provide a secure bag or container for the voter to place the provisional ballot inside,” he said.

In Washington, DC, voters without masks won’t be allowed inside the city’s voting centers, said Nick Jacobs, a spokesperson for the city’s Board of Elections. They will be allowed to vote curbside – but not all polling places are set up for curbside voting, so anyone who refuses to wear a mask would have to go to a vote center where it is provided, Jacobs said.

And in Minnesota, voters will be offered masks and those who refuse will be asked to vote curbside. If they insist on voting inside a polling place, “they will still be allowed to vote, but their name will be recorded as in violation of the Governor’s mask requirement and reported to the appropriate authorities,” said Risikat Adesaogun, a spokesperson for the Minnesota secretary of state.

Legal experts say that states are likely allowed to require voters to wear masks to enter polling places under federal law, especially if they provide alternate methods of casting a ballot such as curbside voting.

“If a state can require you to produce an ID, it probably can require you to wear a mask,” said Richard Hasen, a University of California Irvine law professor who studies voting rights. “It’s not all that burdensome.”

But Hasen said that if states did try to stop maskless people from voting altogether, those rules could backfire by leading to “more people deliberately not wearing masks as a political statement” and more controversy that disrupts voting.

In some states, including Texas and Michigan, the statewide mask mandates put in place by governors specifically exempt voters from the requirement. Officials in other states, such as Wisconsin and North Carolina, have issued directives that their own state mandates do not apply to voters.

That means that polling places could be some of the few indoor, public places in those states where wearing a mask isn’t required over the next two weeks.

“Exercising one’s fundamental right to vote is not, and should not be, contingent upon whether or not they choose to wear a mask,” Kansas Secretary of State Scott Schwab said in a statement. The state won’t tolerate “voter intimidation or suppression based on the use or non-use of a face mask,” he said.

A voting booth is sanitized between voters inside a tent at a shopping center on the first day of in-person early voting in Las Vegas, Nevada.

Researchers have found mixed results in preliminary studies about whether voting during primaries this year led to increased Covid-19 transmission.

But Dr. Peter Chin-Hong, a professor of medicine at the University of California, San Francisco, who specializes in infectious diseases, said that allowing maskless voters at polling places is highly risky, especially at a time when dozens of states are watching their coronavirus cases rise.

“It’s like a textbook for disease transmission,” he said. “You’re lining up, you’re waiting for a long period, you’re indoors, there may be poor ventilation … it doesn’t make sense from a public health perspective.”

While there’s no official list of states with current mask mandates, the AARP counts 33 states and Washington, DC, that require masks.

A few state elections officials noted that local authorities could theoretically set mask rules that could apply to polling places. In Washington and Oregon, for example, elections are conducted almost completely through the mail. Individual counties run their own vote centers or privacy booths for voting and set their own policies, spokespeople for the secretaries of state said.

Officials in four states that have current mask mandates – Colorado, Hawaii, Indiana, and Montana – did not respond to repeated requests for comment from CNN.

‘We expect them to be very cooperative’

Election officials around the country said they anticipate the vast majority of voters will wear masks, and played down the potential of conflicts over the rules. In Massachusetts, where the governor’s mask mandate doesn’t apply to polling places, “very few accommodations needed to be made for those not wearing masks” during the state’s September primary election, said Debra O’Malley, a spokesperson for the secretary of the commonwealth. “Our voters are quite accustomed to wearing masks and we expect them to be very cooperative.”

While early voting has already started in more than 30 states, there have not been widespread reports of voters refusing to wear masks so far.

Still, lawsuits have been filed both by advocates trying to require masks while voting and others trying to scrap mask rules. The Minnesota Voters Alliance and several Republican legislators in the state sued Gov. Tim Walz, arguing that requiring masks at polling places violated state law. A federal judge dismissed the case earlier this month.

And in Texas, the state NAACP and the voting rights group Mi Familia Vota sued the state over its refusal to require voters to wear masks, saying officials were putting voters at risk. That lawsuit was also dismissed by a judge in September, but an appeals court partially overturned the ruling earlier this month. It’s unclear if a final decision will come in the case before Election Day.

Texas has also faced criticism over its rule under the state’s voter ID law that election judges can ask voters to “temporarily lower or remove their face covering if the judge is not able to determine the voter’s identity.” Voters who refuse to lower their masks and can’t be identified based on their ID will have to cast provisional ballots and then go to their registrar’s office later to cure their ballot, according to guidance from the state’s director of elections.

Even briefly removing a mask indoors increases the risk of transmission, said Chin-Hong, the disease expert. A spokesperson for the Secretary of State did not respond to that criticism.

So far, most state officials are emphasizing voting rights even as they try to protect public health.

“‘The right of citizens of the United States to vote shall not be denied or abridged’ appears within three different amendments of the U.S. Constitution, and I will never deny that right to vote for any reason,” Ohio Secretary of State Frank LaRose tweeted in August. “Voters not wearing a mask will be offered one to wear and if they refuse they will be asked to vote curbside. However, no one will ever be denied their right to vote.”