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Maryland man arrested after trying to vote without a mask has sued, saying rights were violated

Voters wearing masks stand in line to cast their ballots inside the Pip Moyer Recreation Center in Annapolis on Monday. In Harford County, voter Daniel Swain refused to wear a mask and was arrested for trespassing. (Brian Witte/AP)
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A retired Maryland correctional officer has sued the Harford County Board of Elections and sheriff’s office over his arrest at a polling place after he refused to wear a mask.

Daniel Swain, 52, accuses election officials of “illegally interfering with and suppressing” his right to vote on Monday. He filed the lawsuit Tuesday in Harford County Circuit Court and is seeking a temporary restraining order that would prohibit the election board from requiring voters to wear a face mask to limit the spread of the novel coronavirus.

Swain, who was charged with trespassing and failing to comply with a health emergency, is also seeking monetary damages and an order that would require the defendants to pay for and receive “constitutional voting rights training.”

“I feel disenfranchised,” he said in an interview.

According to charging documents, Swain was offered a chance to vote maskless outdoors but “argued this was unconstitutional [and] that the Harford County Sheriff’s Office was violating the law.”

Maryland residents are required under Gov. Larry Hogan’s coronavirus executive order to wear masks in public places, which would include the polls. Hogan (R) signed an order this summer that specifically requires all polling places to adhere to all public health guidance.

While scientists and medical experts have overwhelmingly agreed that masks are the most effective way of stopping the spread of the deadly and highly contagious virus, skeptics — including President Trump and some of his top aides — have questioned that conclusion or opposed mask mandates as a violation of individual rights.

Swain said there is no state law that bars him from voting without a mask. He is represented by Daniel L. Cox, a Republican state delegate who represents Frederick and Carroll counties and has filed a lawsuit of his own against Hogan’s administration over his stay-at-home orders.

Hogan spokesman Michael Ricci said U.S. District Judge Catherine C. Blake’s ruling in that case has already determined that requiring a mask amid a pandemic does not violate First Amendment or other constitutional rights.

“Especially in the context of COVID-19, wearing a face covering would be viewed as a means of preventing the spread of COVID-19, not as expressing any message,” Blake wrote in her ruling.

“Mr. Cox has clearly carved out a little niche for himself,” Ricci said in a statement on Wednesday.

Cox did not return a call seeking comment, but posted on Facebook Wednesday night that Swain’s rights were violated because he was not given the chance to vote with a “normal” ballot.

Harford County Executive Barry Glassman (R) said since Swain did have the option of voting, the lawsuit appears unnecessary.

“It appears to me the whole intention was to create a legal situation,” Glassman said. “It’s unfortunate because everybody is just trying to do their jobs and follow the rules that are laid out statewide.”

The District, which launched early voting on Tuesday, also requires masks at all polling places.

Virginia registrars, following directions from the state electoral board, are encouraging voters to wear masks at the polls, but not requiring it. If a voter refuses to wear a mask, they are offered the option of voting curbside.

“If they refuse that, they can come in and vote like every other voter,” said Gretchen Reinemeyer, registrar for Arlington County, where 50 percent of voters have already cast their ballots. “We’ve had a few maskless voters who took us up on the offer to vote curbside, and we did let them into the polling place to submit their ballots into the machine.”

Richard Keech, deputy registrar in Loudoun County, said of the 67,000-plus voters who have cast a ballot so far, “maybe four or five” made an issue of not wearing a mask. The poll workers let them vote indoors, and tried to space them far away from other voters, he said.

Swain and his son, Luke, 22, are suing Kim Slusar, the acting director of the county Board of Elections, Sheriff Jeffery R. Gahler, the Harford County Board of Elections, the Jarrestville Volunteer Fire Company and Board of Directors, and Jane and John Does. The younger Swain was also not allowed to vote without a mask, but was not arrested.

Slusar did not return a call seeking comment. A spokesman for the sheriff’s office said there was no comment beyond the information that was released Tuesday about Daniel Swain’s arrest.

The sheriff’s office said that deputies were called to the fire company, which was serving as a polling site, on Monday afternoon, because two people inside the polling area had refused to wear masks.

“Sheriff Gahler has been very clear that deputies would handle reported mask violations through education and would not be making arrests or issuing criminal citations solely for refusing to follow the Governors’ order on wearing mask,” the statement reads. “However, if a private property owner, store manager or in this case, election official needed assistance in having a person vacate a premise, we would enforce a trespassing violation.”

Swain said in an interview that he stood in line, maskless, outside and then inside the building, and no one said anything to him. He said it wasn’t until after he presented his voter registration card, which includes his Republican Party affiliation, that an election supervisor came over and said he needed to have a mask.

“I found it odd,” he said. “I had been there quite some time . . . in full view of everyone in the room and nobody said anything until that point.”

Gahler, like Glassman, is a Republican. Forty-three percent of Harford voters are registered Republicans, 35 percent are Democrats and 20 percent are unaffiliated. The county favored Trump by a 23-point margin over Hillary Clinton in 2016.

Daniel Swain’s wife, Gayle, said she wore a mask on Monday and was able to vote. “We’re individual people,” she said of her husband’s decision.

Patricia Sullivan and Michael Brice-Saddler contributed to this report.