Pa. court weighs legislative subpoena issued as part of Senate election ‘investigation’

A panel of five judges heard arguments in the now-consolidated case brought by legislative Democrats and Attorney General Josh Shapiro to challenge the review of the 2020 general and 2021 primary elections

By: - December 15, 2021 5:20 pm

The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)

A legislative subpoena issued as part of a taxpayer-funded election investigation — specifically its request for the personal information of 9 million Pennsylvania voters — went before Commonwealth Court Wednesday, with arguments surrounding its purpose and intragovernmental sharing of information.

A panel of five judges heard arguments in the now-consolidated case brought by legislative Democrats and Attorney General Josh Shapiro to challenge the review of the 2020 general and 2021 primary elections, and prohibit the release of voters’ driver’s license numbers and partial Social Security numbers.

If the court grants the challengers’ request, the Department of State, which has election oversight, will not turn the identifying information over to the Senate Intergovernmental Operations Committee, the majority-Republican panel leading the review.

Most of the requested information is publicly available. State law, however, prohibits the public release of someone’s driver’s license number and Social Security number.

The state agency has partially complied with the subpoena, but not its request for voter information.

“They don’t want the Senate to have it because they don’t like it,” Matt Haverstick, an attorney representing Senate President Pro Tempore Jake Corman, R-Centre, said in court.

Now-President Joe Biden won the election in the commonwealth by 80,555 votes. Efforts to review the 2020 election come after a months-long campaign by former President Donald Trump, who made unsubstantiated claims that voter fraud and misconduct resulted in his loss. Legal challenges to the results failed in court, and two post-election audits carried out in Pennsylvania after the presidential election found no evidence of fraud.

The review, however, aims to evaluate the strengths and weaknesses of Pennsylvania’s electoral process, Senate Republicans who support the probe have said.

Sen. Cris Dush, R-Jefferson, who chairs the 11-member Senate panel, has said driver’s license numbers and partial Social Security numbers are necessary to verify voters’ identities.

But Chief Deputy Attorney General Michael Fischer argued that the seldom-used Senate panel does not have the authority to issue a subpoena for a so-called election investigation because election issues are typically outside its purview. 

He also said that complying with the sweeping request and handing over the identifying information could threaten voters’ privacy and put them at risk of fraud and identity theft.

Attorneys Clifford Levine, who represents Senate Minority Leader Jay Costa, D-Allegheny, and Tamika Washington, who represents Philadelphia Democratic Sen. Art Haywood and his wife Julie, also stressed the potential risks for voter privacy.

The Department of State provided similar information to the Pennsylvania chapter of the League of Women Voters, a challenger in the case, in 2012 as part of a lawsuit filed by the organization to overturn a voter identification law.

Attorneys for Corman and Dush looked to that 2012 decision to justify the Senate panel’s request and argue that one branch of government should be able to share information with another.

“Why isn’t this the pot calling the kettle black?” President Judge Emerita Mary Hannah Leavitt asked Fischer, who said the Department of State limits who can access private information — “down to the individual,” he said.

Judge Anne Covey also grilled Fischer on whether the issue should be before the court and said she wasn’t sure why the request for partial Social Security numbers was a point of contention.

“I call my credit card company and give them my partial Social Security number all the time,” she said.

Fischer also argued that the Senate panel, and the Republican caucus, have not justified an adequate reason behind the legal request.

He added that neither the Senate GOP nor Envoy Sage, LLC, an Iowa-based firm selected to conduct the investigation, has not outlined security measures to ensure voters’ information is protected.

“This court has the right to know how they are going to protect this data,” Fischer told the panel. “They should know this already.”

As part of its contract with the Senate GOP, Envoy Sage, which has no direct experience investigating elections, agreed to report any incidents and offer anyone affected by a possible breach of confidentiality at least one year of credit monitoring at the firm’s expense. Without going into specifics, Dush and Envoy Sage Founder Steven Lahr have vowed to keep data protected and touted the firm’s credentials. However, they have not outlined specific details about security.

Levine argued that since Senate Majority Leader Kim Ward, R-Westmoreland, signed the contract with Envoy Sage, that means the Republican caucus could have access to voters’ information. 

“You can have an investigation and learn and find out about facts,” Levine said. “What you can’t do is start your own investigation with an outfit from Iowa that has never done this before.”

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