Albemarle County Registrar Jake Washburne has been dropped from a lawsuit filed by radio host Rob Schilling in which he alleges a mask dispute turned into a voting rights issue.
Schilling filed the suit in June in the U.S. District Court for the Western District of Virginia after he claimed he was briefly prevented from voting during the June 8 Democratic primary election in Albemarle County due to a face mask dispute. Washburne was initially named as a defendant alongside Election Officer Leo Mallek and two then-unnamed poll workers.
According to Schilling’s lawsuit, he did not wear a mask when he went to vote at the Woodbrook precinct in Albemarle County on June 8. Per the lawsuit, Washburne previously had told Schilling that masks were not required in polling locations. The loosened mask requirements were the result of changes in state mask mandates in the wake of COVID-19 vaccinations.
When Schilling went to vote, he claims that Mallek asked him to wear a mask. After Schilling refused, he claims in the lawsuit, that two poll workers placed their hands on his arms or shoulders or both and tried to convince him to leave. According to the lawsuit, Schilling was able to cast his ballot after a poll worker not named in the lawsuit placed a call to Washburne. The whole altercation is alleged to have lasted six minutes.
“From the time Schilling entered the precinct until he was finally permitted to vote, approximately six minutes elapsed,” the initial lawsuit reads. “Had Mr. Schilling been permitted to vote without hindrance as described herein, he would have spent less time at the polling location.”
Schilling claims his right to vote was violated, that he was the subject of voter intimidation and that he was the victim of assault, battery and false imprisonment at the hands of the two unnamed poll workers.
In July, lawyers for Washburne and Mallek filed a motion to dismiss the lawsuit, arguing that the defendants cannot be found liable under the doctrine of “respondeat superior” — which holds an employer or principal legally responsible for the wrongful acts of an employee — and that the actions described do not establish a violation of Schilling’s statutory or constitutional rights.
In September, counsel for the parties argued over the motion to dismiss in front of U.S. District Judge Norman K. Moon. No ruling has been issued yet in regards to the motion.
However, per an amended complaint filed Monday, Washburne has been dropped from the lawsuit. The amended complaint also names the previously unnamed poll workers as David Carey and Lawrence Bouterie.
The amended complaint again alleges that Schilling’s constitutional rights were violated when he was delayed from voting for six minutes and expands on the interaction between Schilling and the trio of defendants.
“The willingness of [the defendants] to make close bodily contact with Mr. Schilling in a purported or ostensible effort to ensure the safety of Mr. Schilling and others from a viral disease underscores and gives rise to the inference that the true purpose of the defendants was not to protect the Woodbridge Precinct and its visitors from an outbreak, but was instead an effort to intimidate Mr. Schilling in the exercise of his franchise on the day of the Democratic Party’s primary election,” the amended complaint reads.
Schilling attempts to buff up his argument by alleging in the amended complaint that Mallek was aware of Schilling’s history as a Republican elected official and as a critic of the Albemarle County Board of Supervisors on which his wife, Ann Mallek, serves.
The amended lawsuit requests an injunction preventing the defendants from hindering Schilling’s right to vote in future elections due to a refusal to wear a face mask, a judgment declaring that his constitutional rights were violated and compensatory damages and attorney fees.
According to a proposed order to amend the lawsuit, instead of re-filing a motion to dismiss, Mallek will continue to rely on the previously filed motion to dismiss. This is a jointly agreed decision, according to the proposed order.
“The parties will rely on their former briefing with respect to the claims against Mr. Mallek, and the court will issue a decision in due course with respect to the claims against Mr. Mallek,” the proposed order reads.
This is not the first lawsuit Schilling has filed in response to mask safety measures. Last year, he and local business owner Tobey Bouch filed a lawsuit in Albemarle County Circuit Court challenging Gov. Ralph Northam’s mask mandate. The lawsuit failed to gain much traction and was denied a motion for declaratory judgment in the summer of 2020.
A jury trial currently is set to begin on Nov. 22, 2022, and could be impacted by the outcome of the motion to dismiss.