A federal judge grilled an attorney representing radio host Rob Schilling during a motion to dismiss Schilling’s lawsuit spurred by 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. 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 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.
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.
This argument was advanced during a video hearing Wednesday in which attorney Jim Guynn represented the defense.
According to Guynn, nothing in the U.S. Constitution gives an undisputed right to vote.
“There is the 15th amendment that gives the former slaves the right to vote, the amendment that gives women the right to vote and there’s the 23rd amendment which gives 18-year-olds the right to vote,” he said. “But otherwise, there’s not a constitutional right necessarily to vote. As an example, many states don’t allow felons to vote and that’s not considered unconstitutional.”
Matt Hardin, Schilling’s attorney, argued that his client had been “set up” by Washburne and Mallek because Washburne had told him beforehand that masks were not required and Mallek should have been aware of this. Senior U.S. District Judge Norman K. Moon pushed back against that argument, pointing out that the information Washburne told Schilling about masks was correct and that none of the alleged facts connected Washburne to the actions of the poll workers.
“You’ve gotta have links joining the charge, you can’t just say it is so because you say so,” Moon said. “You are familiar with pleading, you have to allege facts and what other facts alleged connect Mr. Washburne to the actions of John Doe One and John Doe Two.”
Hardin argued that the defense is “muddying the waters” on the employee, employer and agency relationship.
In the motion to dismiss, the defense argued that none of the defendants are employees within the law, Hardin said. But in their reply, Hardin argued that the defense changed tactics and said a civil conspiracy could not be alleged because all the defendants share common employment.
“It’s our argument that they’re all acting in concert at the same time at the same place to accomplish a common goal and that that’s the basis for liability for Mr. Mallek,” Hardin said.
Hardin additionally argued that the lawsuit cites case law that says that the existence of an agency relationship is usually a question for the jury.
Moon proposed a hypothetical where someone called Washburne to ask if there were an election and was told yes, if they were registered to vote. If that person went to vote and was told by a poll worker at that point that they couldn’t vote because they weren’t registered, would Washburne still be liable even though he communicated the correct information, Moon asked.
Hardin argued that while this case is about the right to vote, it goes a little further becomes a case about the government “luring somebody into a situation.”
“That is a wild assertion,” Moon said. “On the face of it, if you call the registrar and ask if you can vote without a mask on and he says yes, which is a true statement, how can you argue that he lured him down there?”
Washburne had a duty to ensure that his directives were enforced, Hardin countered.
At the end of the hearing, Guynn clarified the defense’s argument about employment, which more accurately alleges that the defendants are all essentially fellow employees.
“There’s not a link, but you don’t have to be the employer to say that you can’t conspire with your employees,” he said.
Though Guynn said it’s not clear who the employer would be considered, it would likely be found to be the state Board of Elections. However, he said more research and argument would be needed to determine that.
Following Guynn brief comments, Moon ended the hearing and said he would try to issue a ruling soon. A jury trial currently is set to begin on Nov. 22, 2022, and could be impacted by the outcome of the motion to dismiss.