WINCHESTER — Back Creek Supervisor Shawn Graber has threatened to press charges against a Frederick County Sheriff's Office deputy over an Election Day incident at the Senseny Road School polling location.
On Nov. 3, the day after the election, Frederick County Sheriff Lenny Millholland returned a phone message to Graber, placed through the dispatch center, regarding Graber's concerns about how Deputy Sean. M. Kennedy handled the call for service at the polling location. The Star obtained a copy of the conversation between Millholland and Graber through a Freedom of Information Act request.
Graber told Millholland he was "thoroughly frustrated" and maintained that Kennedy violated federal and state laws. He said he wanted to talk with Millholland before pursuing charges and making the Sheriff's Office "look bad."
On Election Day, Kennedy responded to a "suspicious situation" at the Senseny Road School polling location. Frederick County Education Association President Shaniqua Williams, who was outside the school handing out information to voters about the candidates the FCEA supported, called police because Graber kept taking photos of her after she asked him to stop. She said his behavior was intimidating and "creepy."
Graber has said he was documenting "unlawful acts" of people passing out white sample ballots. State Code says white sample ballots cannot be used with anything less than 24-point font size.
Williams has said she only passed out red sheets of paper with a list of candidates endorsed by the FCEA.
Kennedy, who was the first deputy to arrive at the scene, told Graber that while he was legally allowed to take pictures, it was "probably not the best idea" to continue to do so if someone asks you to stop. The Star previously obtained the deputy's body camera footage from the Sheriff's Office through a Freedom of Information Act request.
Graber then asked Kennedy, "I can legally take pictures, right?" Kennedy responded, "What did I just say?"
Kennedy told Graber that while he wasn't breaking the law, taking photos of someone who objects would likely cause a scene. Graber kept reiterating that it was not against the law for him to take pictures of Williams. When Kennedy told Graber he didn't say Graber did anything wrong, Graber said, "So why are we having this conversation?"
During his Nov. 3 phone call with Millholland, Graber claimed Kennedy obstructed justice, failed to enforce the code of Virginia and committed "voter intimidation." He told Millholland he had "hard evidence" that illegal sample ballots were being handed out. He also claimed that Kennedy told him he could not take photos of Williams.
"If you're going to tell me I can't take photos because it pisses them off while they are committing a crime, I'm sorry, but you are in the wrong," Graber told Millholland. "So all I'm gonna say is this. I am planning to press federal and state criminal charges against that deputy if you and I can't get this figured out."
He told Millholland he would like a one-on-one meeting with him to discuss the matter. Graber also said Kennedy's attitude gave him a "sour taste toward the Sheriff's Office" and referred to Kennedy as a "knucklehead" and "a complete ass****."
Millholland told Graber he had not reviewed any of the videos related to the incident and couldn't make an assessment until he investigated it further.
As the conversation became tense, Graber said, "I don't think then we even need to meet," and he told Millholland he planned to take legal action. "You're going to have to do what you have to do," Millholland responded.
Graber told Millholland that he wants deputies to be better trained on handling election situations. He said other supervisors have similar concerns and suggested having a meeting with Millholland behind closed doors so the matter doesn't get "blown up."
"However, if that Frederick County Educators Association, that woman that placed that call, comes out and starts running her mouth about it, I'm gonna defend myself, and I'm gonna throw that deputy as far under the bus as I have to," Graber said.
Millholland told The Star that his office and the Frederick County Commonwealth's Attorney's office have investigated the matter and found no wrongdoing by Kennedy. The deputy's body camera footage shows Kennedy telling Graber he was legally allowed to take photos of Williams. Millholland said it was frustrating to take time away from other duties to prove that his deputy didn't do anything wrong.
"It puts me in a bad position because [Graber's] one of the people who is a decision-maker on my budget," Millholland said.
He said Graber's comments about Kennedy were untrue and "almost borderline bullying."
"I think it was just completely and totally uncalled for," Millholland said. "I'd like him to apologize to my deputy and everything else for what he said about him. Because that is a matter of public record. Everybody knows what he said about my deputy."
Commonwealth's Attorney Ross Spicer, who reviewed the bodycam footage, said he believes Kennedy did not act inappropriately and "he most assuredly did not do anything that was against the law."
As for Graber taking photos of Williams, Spicer said, "You certainly can take a photo of someone in public. But just because you can do something doesn't mean that you should. "
Spicer declined to comment on whether any of Graber's actions at the polling location would be considered illegal, saying it would be inappropriate of his office to comment about whether someone engaged in illegal conduct, "short of statements in a courtroom."
When asked on Thursday if he intended to pursue legal action against Kennedy, Graber told The Star, "I have no comment for you in any format because I am pursuing things through the channels at the state."
Millholland pointed out that bodycam footage of Williams' interaction with police shows a red sheet of paper in her hand and that the only white ballot seen on camera was the one Graber pulled out of his pocket.
Graber countered that if people were breaking the law by handing out white paper sample ballots, they wouldn't want the police to see them breaking the law when they showed up. He claimed there were white ballots in three of the four people's hands at the polling location. When the phone call to the police was made, he said those white ballots "suddenly disappeared" into a pickup truck.
Graber told The Star that he was not singling out Williams but recording evidence of all people he claimed were handing out illegal sample ballots. He maintained white sample ballots were being passed out by Democrats at at least four polling locations, including Senseny Road School. He said the photos he took were not just of Williams but of everyone allegedly involved. Graber added that he "pretty consistently" wears a body camera and that he can usually verify or back up what he has to say.
Last week, Frederick County Voter Registrar Rich Venskoske told The Star that Electoral Board Vice Chair Craig Lambert only found white paper sample ballots at one location — the Kernstown 103 precinct, which has a polling location at Orchard View Elementary School. Venskoske said Lambert told the people handing out the white ballots to stop immediately and they did so.
Graber, a Republican, said he wants to investigate whether there was a concerted effort by Democrats to rig or illegally manipulate the election. He said he has photographs that can prove everything he's said regarding illegal ballots, but he declined to provide the evidence.
Graber said he wants to wait until Virginia gets a new attorney general in January before he submits "everything." Current Attorney General Mark Herring is a Democrat. Republican Jason Miyares will soon replace him.