A Harford County father and son’s request for a temporary restraining order so they could vote without wearing masks was rejected Friday, as was their lawsuit contending that they were denied the right to vote.
More harm would be done to the public at large than to the two Fallston men who filed the suit if they were allowed to vote without covering their faces during the COVID-19 pandemic, Harford County Circuit Judge Angela M. Eaves ruled.
“That disenfranchises everyone,” said Eaves, noting the pair’s request met none of the standards for a temporary restraining order. “That is the greater injury in this case.”
The lawsuit and restraining order request were filed by Daniel Swain, 52, and his son, Luke Swain, 22, Tuesday after the pair were barred Monday from voting inside the Jarrettsville Volunteer Fire Company on the first day of early voting in Maryland.
According to charging documents for the older Swain, the pair showed up to vote without masks. When they were inside, they were asked to wear masks but refused. The Swains were given the option of voting on provisional ballots at an outdoor booth, but Daniel Swain told county sheriff’s deputies that request was “unconstitutional” and said Maryland law allowed people to vote inside without face masks, according to the documents.
Maryland remains under an order requiring anyone over the age of 5 to wear face coverings while inside public spaces due to the coronavirus.
Daniel Swain was arrested after he refused to leave the polling place. He is charged with trespassing and failure to comply with a health emergency. Luke Swain left the site upon request and was not charged.
Luke Swain testified Friday he has cystic fibrosis, a disease that attacks the lungs and respiratory system and would be a medical exemption to the mask requirement. However, Luke Swain said he did not say anything to election officials about his health, telling only a sheriff’s deputy that he had a medical reason for not wearing a mask. Deputies asked him to elaborate, and he declined to name the condition, he testified.
Daniel Swain did not testify, nor did he raise a medical exemption to the requirement when he attempted to vote.
Republican Del. Dan Cox, who represents parts of Carroll and Frederick counties, is the Swains' attorney. He argued the constitutional right to vote supersedes Republican Gov. Larry Hogan’s mask order. The Swains cannot be treated as “second-class citizens” if they do not disclose an exemption to wearing a mask, and they have the right to cast “normal ballots" without masks, Cox argued.
“My clients have a better chance of surviving COVID than having their provisional ballot counted in full,” Cox said, contending Harford County’s acceptance rate for such ballots is 66%.
Voters are typically asked to vote a provisional ballot when there is a question about their eligibility to vote. The ballots are counted, but only after election officials review them to make sure a voter didn’t vote twice, is registered and is eligible to vote in all races on the ballot.
Brian Young, an attorney representing the Harford County Board of Elections and its acting director Kimberley Slusar, both defendants in the case, said the term “normal ballot" is a misnomer. It’s not found in Maryland law, he said.
Young said only 6.8% of provisional ballots were rejected in Harford County in 2018. Many were accepted in part, typically because they were cast by someone who doesn’t live in the area where they attempted to vote. So, for instance, a vote for governor could be counted, but not a vote for a local office from a smaller area — one the voter didn’t live in. Most provisional ballots are rejected because the voter is unregistered or because the voter already voted — problems that do not pertain to the Swains, he argued.
Eaves said the Swains would not have been “irreparably harmed” if they accepted either of the options presented to them: voting inside with a mask or outside without. She also noted the pair still could request and pick up mail-in ballots from their local board of elections for Tuesday’s election.
Eaves dismissed the lawsuit and a subsequent amended complaint that sought fees, damages and mandatory “Constitutional voting rights training” for the county elections board and the sheriff’s office.
Young said in a statement that he was glad Eaves dismissed the “meritless” complaint.
“The Harford County Board of Elections has provided safe and effective voting opportunities for all citizens despite the COVID-19 state of emergency," he said. "Due to this decision, Harford’s citizens know that their health and safety will be protected in accordance with Gov. Hogan’s executive orders, and voters who are exempt from the order continue to be able to exercise their right to vote.”
An additional amended complaint, filed around 1:30 a.m. Friday, was not dismissed, but Eaves said she’s likely to dismiss it once it has been reviewed. She invited the defendants in the lawsuit, which also include the sheriff’s office and the Jarrettsville Volunteer Fire Company, to submit motions to dismiss.
The amended complaint adds a contention that Daniel Swain’s right to religious freedom was violated. Because Swain is a Christian, he was created “to breathe as part of our direct worship,” the complaint said, quoting Psalm 150:6 “let all that has breath praise the Lord.”
“Plaintiff Dan Swain believes in his religious right to breath oxygen and worship the Lord his creator with an uncovered face, including while he votes, and not with a muzzle, face covering or mask, and as such has had his religious freedom violated," the complaint states.
Cox and the Swains appeared at Friday’s hearing via Skype and could not be reached for comment.
A trial has been scheduled for Dec. 4 on Swain’s criminal charges.
The Swains have not been barred from any voting centers in Harford County. Early voting continues through Monday, and polls will be open on Election Day from 7 a.m. to 8 p.m.