Pa. conservatives’ hopes for subpoena-fueled election investigation quashed by political reality

Some of Pennsylvania’s most conservative Republicans have given up a push to review and block the state’s presidential election results, citing legal hangups, a flurry of lawsuits, and little buy-in from their GOP colleagues. 

The effort was first announced at a press conference last week. On Nov. 10,  26 House and Senate Republicans — barely a fifth of all GOP lawmakers — called for the General Assembly to delay the certification of Pennsylvania’s 2020 results until lawmakers could conduct their own election audit.

At the time, the lawmakers declined to speculate on what a delay would lead to or what action they’d take. But Democrats saw it as a path to overturn the popular vote, and potentially hand the 2020 election to President Donald Trump with state legislatures. 

But just a week later, all the Pennsylvania General Assembly has approved is a review that likely won’t be complete until next year — likely after President-elect Joe Biden’s inauguration — and that will duplicate the work of Gov. Tom Wolf’s administration. 

Conservatives such as state Rep., soon-to-be state Sen., Cris Dush, R-Jefferson acknowledged that their stronger push had fizzled.

He and a handful of other lawmakers wanted to use the ongoing budget negotiations or other extraordinary options, such as subpoenas, to “try and dig for answers” on how the state administered the presidential election, Dush told the Capital-Star.

“But I don’t know if the political will is there for that to happen or not,” he added.

At first, Republican leadership seemed to echo their call. House Speaker Bryan Cutler, R-Lancaster, announced he also wanted a review of the election process last week, and tapped Rep. Seth Grove, R-York, to lead the charge.

The Pa. House will review the 2020 election, but it’s unlikely it will change the results

Cutler and Grove cited inconsistent policies by county election officials on such issues as curing mistakes on a mail-in ballot, or when counties decided to begin processing mail-in ballots, as worth reviewing.

While such issues exist, there is no evidence of widespread voter fraud according to everyone from local county election officials to Trump’s own administration. 

Such a review will not delay the certification of election results, or impact then in any way, Grove, acting chairman of the House State Government Committee, acknowledged Wednesday.

“I’m not an attorney,” Grove said. He added he wasn’t sure if an audit finding could be used two months later to overturn the results.

The audit was approved by the House Tuesday 112-90, with support from every Republican and three Democrats.

It won’t be due until next year, and will be conducted by an outside firm. The resolution identifies 24 different issues to look at, including when counties began canvassing mail-in ballots, how many ballots were sent to the wrong address, and the use of drop boxes.

Republicans said the audit would provide information for a future review of election law. But Democrats fired back that the review would be a duplicative waste of taxpayer money, and only played into Trump’s effort to delegitimize results of an election he has lost.

So far, law enforcement have prosecuted two Pennsylvania voters, both Republicans, for voter fraud. 

When pressed by judges, Trump campaign attorneys have retreated from directly claiming fraud, and more than 20 legal challenges have been rejected across the country.

Still, misinformation about fraud has spread, including, evidently to Pennsylvanians who have contacted the legislators pushing for an audit. Democrats were quick to call out their Republican colleagues for trafficking in their concerns.

“Much of this is political theater, but this political theater is having a poisoning effect on our democracy,” Rep. Malcolm Kenyatta, D-Philadelphia, said Wednesday.

The fiery rhetoric follows speculation that legislative Republicans would appoint Trump electors to the electoral college overriding the state’s results, which would first require a delay in Pennsylvania’s results.

A small number of Trump’s legal advisers have called for state legislatures to overrule the popular vote.

This week, Trump even met Republican state lawmakers from Michigan at the White House to discuss the election. And last week, the president appeared to insert himself into internal House Republican leadership elections calling for “very tough and smart fighters.”

Some in Pennsylvania, such as arch-conservative Rep. Daryl Metcalfe, R-Butler, as well as the conservative Citizens Alliance of Pennsylvania, in line with Trump, have argued that the General Assembly does have the power to appoint electors or otherwise unilaterally alter the presidential results. But House and Senate Republican leadership have said that they lack the authority to do so.

As such, Pennsylvania will likely certify its results in early December, verifying that Biden won its 20 electoral votes.

Grove himself did not embrace the results of the election, only saying that “there were problems” with the way it was run.

While Trump lost Pennsylvania by more than 80,000 votes, other races on the ballot on Nov. 3 largely favored Republicans. 

Republicans flipped two row offices, and picked up at least three seats in the House. State courts are also deciding a close Senate race that would expand the GOP’s Senate majority.

To subpoena or not to subpoena?

Despite Democratic concerns, and a vocal minority of Republicans asking for swift action to investigate unfounded claims of electoral irregularities, a legislative override of Pennsylvania’s results does not appear in the making.

Part of that is due to timing. Sitting lawmakers terms’ end Nov. 30 under the state constitution, and the House and Senate cannot convene again until January. 

Effectively, the legislators and all their work “turn into pumpkins,” a reference to the fairy tale Cinderella used by multiple lawmakers who appeared at last week’s press conference.

Instead, the Republicans who rallied last week are embracing Trump’s myriad legal actions, most of which have failed, as the best path to impact the election.

“It’s in the hands of the courts,” Rep. Frank Ryan, R-Lebanon, told the Capital-Star. “Anything that would be done usurping that at this juncture would be counterproductive.”

Trump’s main legal hope, a civil rights lawsuit to delay the certification of the Keystone’s state election results, was rejected by a federal judge Saturday night. The case had attempted to argue that Democratic counties selectively were advised to cure defective mail-in ballots, but the federal judge rejected both the campaign’s legal standing as well as their underlying facts.

“Requiring that every single county administer elections in exactly the same way would impose untenable burdens on counties, whether because of population, resourced, or a myriad of other reasonable considerations,” U.S. District Judge Matthew Brann wrote.

But even amid the legal challenges, some Republicans, such as Metcalfe, have argued that subpoenas could turn up fresh evidence around the electoral changes Trump is challenging.

Metcalfe hoped to compel testimony from Wolf administration and state Supreme Court officials on pre-election legal actions that extended the mail-in ballot deadline and prevent counties from throwing ballots over a mismatched signature.

Such a review, Metcalfe said Tuesday evening, might also find “additional ammunition” to impeach Wolf, and “should have been done last week.”

Metcalfe has often called for the impeachment of Wolf and other Democratic officials. He has been among the most vocal advocates for legislative imtervention in the election.

In a Facebook post earlier this month, Metcalfe advocated for the General Assembly to act unilaterally to appoint electors and overturn the popular vote results in Pennsylvania, in violation of state law. 

“I’m not sure what the State Government committee is doing,” Metcalfe added to the Capital-Star. He chaired the key panel, which controls election law, from 2011 to 2018

As for issuing subpoenas, just one House committee, the budget-writing Appropriations Committee, has the power to issue them. But the committee’s chairman,  Rep. Stan Saylor, R-York, told the Capital-Star last week that the committee can’t issue subpoenas “on theories.”

 “If you’re going to make accusations, it has to be something you can prove,” Saylor said.

Metcalfe added that he and Saylor had discussed issuing such subpoenas Monday night. Saylor referred questions on subpoenas to Grove, and Grove declined to answer a yes or no question on issuing such a request earlier in the week.

“It is part of our legislative toolkit for oversight,”  Grove said. “To date, we haven’t had to exercise them.”

On the Dom Giordano Show, a conservative radio talk show, Friday morning, Grove said there is no time to execute House subpoenas, but suggested the Legislative Budget and Finance Committee, a bipartisan group assigned with the election audit, could issue subpoenas.

The committee did not reply to a request for comment by press time.

Speaking to his colleagues who may have wanted to block the certification pending review, Grove told the Capital-Star that “they’re passionate people that care about the integrity of the election.” 

“We’re going to do everything in our legislative toolkit to improve the election process for all those voters who are upset or just question or just want a fair election,” Grove added.