Jessie Stensland reports from Island County Superior Court for the Whidbey News-Times.
On the afternoon of Election Day, a judge in Island County Superior Court ruled against a citizen’s motion for an emergency order to prevent the county auditor from enforcing a mask mandate in the Elections Office in Coupeville.
The motion came the day after Tim Hazelo, the chairperson of the Island County Republican Party, refused to wear a mask while serving as an election observer at the Elections Office. The Coupeville marshal cited him for disorderly conduct.
They Said It
Island County Sheriff Rick Felici said he spoke to Hazelo after he received the citation and, as he understands it, Hazelo purposely and politely entered the Elections Office without a mask with the intention of being cited by an officer. Hazelo felt that getting the citation would give him standing in an injunctive relief motion, Felici said.
[While Hazelo, Vice Chair Tracy Abuhl and resident James Peterson were listed as plaintiffs in the motion,] Judge Christon Skinner ruled that only Peterson was allowed to continue as a plaintiff since the others didn’t sign the document and Hazelo wasn’t present.
“By obstructing our access with an unauthorized mandate, the county is effectively denying us the ability to observe and monitor election activities in real time,” [Peterson] said.
His central argument was that [Sheilah] Crider, as the auditor, doesn’t have the statutory authority to impose a health-related rule in her office.
“Health-related requirements, such as a mask mandate, fall solely under the jurisdiction of qualified public health officials, as outlined in the revised code of Washington 75.05.070,” he said.
In addition, he argued that requiring masks can be seen as forcing individuals to wear politically expressive items, which is frowned upon by the U.S. Supreme Court. He said masks clearly became a political issue when Republicans fought mandates during the pandemic.
In her defense, Crider wrote in an affidavit that 10 people in the office became ill and tested positive for COVID during the primary ballot recount in August.
“Because all of our volunteers are over the age of 65, and because we cannot afford to lose essential workers to perform the work of processing ballots, I have required that all staff, volunteers and observers in the ballot processing rooms wear a protective face mask,” she wrote. “Only two people have objected to that rule, Mr. Hazelo and Ms. Abuhl.”
Crider pointed out that all observers, including Hazelo and Abuhl, signed an acknowledgement of the rules. Also, she wrote that the county canvassing board recently authorized the auditor to impose rules to protect the health of people present during ballot counting and to require anyone who does not follow the rules to leave.
Crider wrote that unmasked people can watch the ballot counting through a hallway window, which is actually a better perspective of the cramped space. In fact, some other counties don’t allow observers in the processing room and require them to watch through a window.
Island County Prosecutor Greg Banks represented Crider at the hearing. He said Crider wasn’t imposing a countywide mask mandate, but only in her office.
“She’s doing what any elected official is authorized to do,” he said, “which is to take what she has determined to be reasonably necessary steps to protect the health and safety of those people who are performing an essential function to our democracy so it can be done free from disruption and stunts, frankly.”
He said the video clips and other actions by the observers were “nonsense” only intended to be distractions.
Banks argued that the motion was frivolous and failed to satisfy any of the three criteria necessary for injunctive relief. He questioned whether Peterson had standing in the case and asserted that there was no injury.
In the end, Skinner made it clear that he wasn’t ruling against Peterson on the basis of any kind of technicality or error in court procedure or paperwork; in fact, he didn’t rule on whether Peterson has standing.
Skinner explained that his decision doesn’t resolve the underlying question of whether the auditor can issue a mandate requiring all people in the office, including election observers, to wear masks.
The only question he was able to decide that day is whether a temporary restraining order should be issued. In this case, Skinner said, such an order is would only be allowed if there is “irreparable harm” arising from the mask mandate, which there is not.
“The question before the court is whether wearing a mask prohibits them from going into that room and observing. It does not,” he said.
In addition, he pointed to an Appeals Court decision that said wearing or not wearing a mask doesn’t amount to speech and so doesn’t implicate First Amendment concerns.
“The argument here is that only Republicans refuse to wear masks in public settings,” Skinner said. “That may be your experience, but that is not a finding this court is prepared to make nor does the evidence in this record begin to support that.”
That said, Skinner explained that the case can continue through the normal, non-emergency court process, and the plaintiffs can seek declaratory relief once the complaint is amended to comport with court rules.
“There certainly appears to be substantive arguments on both sides of the issue,” he said, adding that it’s not frivolous and that “government authority should be subject of great scrutiny.”
