Ahead of a hearing on a motion to dismiss his lawsuit, Rob Schilling filed a response contesting arguments that his lawsuit was based just on a six-minute voting delay.
Schilling, a local radio host, 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. The lawsuit names as defendants county Registrar Jake Washburne, Election Officer Leo Mallek and two unnamed poll workers.
According to Schilling’s lawsuit, he did not wear a mask when he went to vote at the Woodbrook precinct 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 widespread COVID-19 vaccinations.
When he went to vote, Schilling said, he was asked to wear a mask by Mallek and, after he refused, he claims in the lawsuit that two poll workers placed their hands on his arms and/or shoulders and tried to convince him to leave. After a poll worker not named in the lawsuit placed a call to Washburne, Schilling was able to cast his ballot.
“From the time Schilling entered the precinct until he was finally permitted to vote, approximately six minutes elapsed,” the 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 further claims in the lawsuit that, because the poll workers were willing to make close bodily contact with him despite a dispute over COVID-19 safety precaution, it shows an intent to intimidate him.
Schilling claims his right to vote was violated, 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.
On July 14, counsel on behalf of Washburne and Mallek filed a motion to dismiss the lawsuit, arguing that the defendants cannot be found liable under the doctrine of “respondeat superior” and that the actions described do not establish a violation of Schilling’s statutory or constitutional rights.
The motion to dismiss further claims that pursuant to the doctrine of respondeat superior, an employer is liable for the tortious acts of its employee if “that employee was performing the employer’s business and acting within the scope of the employment when the tortious acts were committed.”
In this case, there is no employer/employee relationship as a matter of law, the motions reads, and Washburne and Mallek are not the employer of poll workers.
However, not long after the defendants’ motion to dismiss was filed, Schilling’s counsel filed a motion in opposition, claiming, in part, that the six-minute delay was not the entire basis of the lawsuit.
“Unfortunately for the defendants, they cannot re-write the facts alleged in Mr. Schilling’s complaint in an effort to dismiss the allegations it contains,” the response reads. “While the plaintiff is perplexed at the defendants’ suggestion that Constitutional violations for short periods of time are not actionable, plaintiff reiterates that this suit did not arise because of a mere delay in voting.”
The response goes on to claim that the lawsuit was filed because Schilling received “hostile treatment at the apparent instigation” of Mallek, the husband of Ann H. Mallek, a member of the Albemarle County Board of Supervisors of whom Schilling has been a frequent critic.
Whether Schilling was prevented from voting for “six minutes or six days is legally irrelevant” to the merits of his claims, the response reads, but it is nevertheless noteworthy that in the six minutes at issue, Schilling was “subjected to assault and close physical contact” by poll workers.
In a memorandum in support of Washburne and Mallek’s motion to dismiss, the defendants again argue that Schilling’s allegations fall short of the standard.
“Schilling alleges that Washburne misled him when Washburne told Schilling he did not have to wear a mask to vote. Washburne’s statement did not violate any constitutional right of Schilling,” the memorandum reads. “Likewise, Schilling alleges that Mallek accosted him at the doorway and questioned him about wearing a mask to vote but stopped short of pleading that Mallek did anything more.”
The memorandum also attacks claims from Schilling that his rights were violated under the Voting Rights Act. Both Mallek and Washburne were acting under the color of state code and Schilling does not have the authority to a private cause of action under the U.S. code section he cited.
The memorandum also takes issue with Schilling’s claims that Mallek and the unnamed defendants “acted in concert and with a common purpose” and were “engaged in a civil conspiracy” to commit the state law torts.
“Schilling does not explain how acting in concert and with a common purpose differs from a civil conspiracy. They are essentially the same,” the memorandum reads. “It is well established in Virginia that individuals in the same employment cannot engage in a conspiracy.”
The motion to dismiss is set for a hearing Sept. 15 in Charlottesville’s federal courthouse. A jury trial currently is set to begin on Nov. 22, 2022, but could be impacted by the outcome of the motion to dismiss.