A lawsuit from local radio talk show host Rob Schilling, alleging that his rights were violated during a face mask dispute that turned into a voting rights issue, has survived a dismissal attempt by the defendant.
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.
Albemarle County Registrar Jake Washburne was initially named as a defendant alongside Election Officer Leo Mallek and two then-unnamed poll workers, but Washburne was later dropped.
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.”
The conservative radio host filmed the interaction during his attempt to vote during the state Democratic primary, later posting the footage on his website.
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.
Last week, U.S. District Judge Norman K. Moon issued a memorandum opinion, largely denying Mallek’s attempt to dismiss the lawsuit. Mallek argued that even should Schilling’s allegations prove true, Mallek did not commit a federal rights violation or a tort.
Moon did grant a dismissal of Schilling’s putative Voting Rights Act claim because the provision Schilling invokes does not create a private cause of action, meaning Schilling as an individual is without the legal right to raise the issue on his own behalf.
As is the standard for legal actions during this part of the process, Moon wrote that the facts alleged in Schilling’s amended complaint are assumed true for purposes of resolving the motion to dismiss.
Much of Moon’s reasoning revolved around an argument made by Schilling that the delay to his voting was caused by Mallek’s dislike of Schilling’s politics and views of the defendant’s wife, Ann Mallek, a Democratic member of the Albemarle County Board of Supervisors.
As a threshold matter, Moon wrote that the allegation that Mallek and his co-defendants acted with ulterior motives is itself an inference that should not be credited unless adequately supported by factual allegations.
“While this is a close case, the court concludes that Schilling has [pleaded] sufficient facts to satisfy the liberal standards applicable to this motion and render plausible his allegation of subterfuge,” Moon wrote.
Moon said he arrived at the decision based on three factual allegations: that there was, in actuality, no applicable mask requirement; that Schilling is a well-known critic of Mallek’s wife; and that Mallek removed his own mask while purportedly attempting to enforce a masking requirement.
“If Schilling’s allegations are true, as we must assume they are, it is not open to doubt that Mallek infringed Schilling’s constitutional right to vote,” he wrote. “The attempt to remove Schilling was surely a ‘severe’ burden on his right.”
Additionally, Moon wrote that Mallek’s “acquiescence to the actions of his co-defendants is sufficient to raise a plausible inference that he had a common design or purpose with his co-defendants to commit the claimed torts.”
In a news release following the memorandum opinion, Schilling’s attorney Matthew Hardin said that the case will now proceed to trial on allegations that Schilling’s right to vote was temporarily denied to him on unlawful grounds, and on charges that he was assaulted, battered and falsely imprisoned by Albemarle County poll workers.
“I am gratified that the judge saw what really happened to me,” Schilling said in the release. “No voter should be subjected to a physical assault at the polls."
A trial date has not been set.