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Elections officials push back against Schilling lawsuit

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Albemarle County election officials have pushed back against claims made in a lawsuit by Rob Schilling that his constitutional rights were violated when he had to wait six minutes to vote during the June Democratic primary election.

Schilling, a local radio host, filed the lawsuit last month 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 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 was asked to wear a mask by Mallek and, after he refused, he claims in the lawsuit that two poll workers placed 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.

The 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.

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.

“There is no indication that Mallek was intimidating, menacing or threatening when he advised [Schilling] he was required to wear a mask,” the motion reads. “Given that the total time for [Schilling] to vote was six minutes and the mask discussion is the only interaction between [Schilling] and Mallek, the allegations against Mallek simply do not support a claim against Mallek.”

Additionally, the motion to dismiss 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.

“On the contrary, electoral boards appoint officers of election. Moreover, it is the responsibility of the governing body of each county, city, or town to pay officers of election,” the motion reads. “In short, the registrar does not employ officers of election and [Schilling’s] allegation to the contrary is subject to dismissal.”

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 last summer.

A telephonic scheduling conference for Schilling’s federal lawsuit is currently set for Aug. 30.

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