By Jacob Schramm, Staff Writer
On September 15, the Pennsylvania Senate Intergovernmental Operations Committee (“SIOC”) issued a subpoena compelling the Department of State to provide voter records, including the “names, dates of birth, driver’s license numbers (DLNs), last four digits of Social Security numbers (SSNs), addresses and methods of voting for participants, from the May primaries and November general election of 2020.”[1] The State Department refused to comply, and their challenges to the subpoena’s enforceability are being heard in the Commonwealth Court.[2]
According to the legal brief for SIOC, prepared by Majority Leader Chris Dush and Pro Temp Jake Corman, the subpoena was issued as part of the Committee’s investigation into “the need for potential remedial legislation related to Act 77 and Act 12.”[3] These laws were passed in October 2019 and expanded mail-in voting.[4] At a September 9 SIOC hearing preceding the subpoena, Dush stated the investigation “is not about overturning the results of any election,” but because “the legislature did not fully see the impacts of…Act 77 and what they would do to our electoral system.”[5]Dush argues that the personal information sought by the subpoena would “reveal exactly how people voted in response to the options created by those laws, what problems they encountered, and whether the laws permitted unlawful double voting.”[6]
It has been settled on both sides that legislative committees may issue subpoenas and compel testimony for a legislative purpose.[7] The PA Constitution provides that the legislative branch shall make its own rules and procedures, and Senate Rule 14(d)(3) provides that each standing committee may compel production of any “evidence desired by the committee.”[8] SIOC’s brief cites to several PA cases that have called the legislative investigation tool “basic and fundamental” and “a power which should be liberally construed and sustained in safeguarding and preservation of a Republican form of government.”[9]
Three separate complaints were filed in the Commonwealth Court in response to the subpoena. Recently, the Court approved the intervention of public interest groups like Common Cause and the League of Women Voters.[10] While acknowledging the legal right of committees to issue subpoenas, these complaints establish that “Courts protect against legislative compulsion to disclose information where the investigation will not further a legitimate legislative purpose.”[11] To that end, they argue that SIOC is continuing “a prolonged, bad faith campaign to stoke distrust in Pennsylvania’s election administration.”[12] They argue that Dush has a “long history” of parroting President Trump’s “baseless allegations of widespread voter fraud,” and “has spent nearly a year promoting baseless conspiracy theories and allegations of widespread fraud.”[13]
The complaints point to several procedural safeguards implemented to verify election results, including a state-wide risk-limiting audit conducted after the 2020 General Election which found “strong evidence of the accuracy of the count of votes.”[14] They also highlight the three separate legislative investigations into Pennsylvania’s voting practices which have taken place between January and June 2021, resulting in a thorough assessment of current best-practices and recommendations for updating PA voting procedures.[15]
The complaints also suggest that any legislative purpose would be outweighed by the privacy concerns and potential impact on voters. The complaints cite both the US and PA Constitutional right to privacy, especially against the compulsion of the DLNs and SSNs.[16] Most of the sought information is public and can be accessed readily by anyone, including a PA Senate Committee, but the Commonwealth argues that PA law prohibits disclosure of DLNs and SSNs and find SIOC’s argument unconvincing that those pieces of data are necessary to take legislative action.[17] Additionally, the complaints articulate concern that SIOC will disclose that information to third parties. Dush has declined on record to provide any indication of which third-party auditors he is considering employing.[18] In response, SIOC’s brief argues that such preemptive disclosure should not weigh on the enforceability of the subpoena and that the past disclosure of such information to third parties invalidates any privacy concerns.[19]
In November 2020, the Courts ruled definitively that they would not entertain baseless challenges to the 2020 election results.[20] Today, they must determine whether the September 15 subpoena is an extension of that effort, or a proper legislative function that deserves the protection of governmental checks and balances.
[1] https://www.salon.com/2021/09/16/pennsylvania-subpoenas-personal-information-of-every-for-2020-fraudit/; See also https://paelectioninvestigation.com/wp-content/uploads/sites/110/2021/09/Intergovernmental-Operations-Requested-Document-List.pdf
[2] https://www.penncapital-star.com/government-politics/pa-judge-grants-request-to-join-lawsuit-against-senate-gop-subpoena-election-investigation/
[3] https://senatorcrisdushpa.com/wp-content/uploads/sites/104/2021/10/Committee-Brief-AS-FILED-10.22.21-02160169x9E3AD.pdf (hereinafter SIOC Brief), at 5.
[4] https://www.governor.pa.gov/newsroom/governor-wolf-signs-election-reform-bill-including-new-mail-in-voting/
[5] SIOC Brief at 7.
[6] Id. at 87.
[7] Id. at 86; See also https://www.attorneygeneral.gov/wp-content/uploads/2021/09/2021-09-23-Pennsylvania-v.-Dush-Petition-FINAL-VERIFIED-EXHIBITS.pdf (hereinafter Commonwealth Brief) at 63.
[8] Pa. Const. Art. II, §11; PA Senate Rules 14(d)(3). See also 46 P.S. §61.
[9] SIOC Brief at 84, quoting McGinley v. Scott, 164 A.2d 424, 430 (Pa. 1960).
[10] https://www.penncapital-star.com/government-politics/pa-judge-grants-request-to-join-lawsuit-against-senate-gop-subpoena-election-investigation/
[11] Commonwealth Brief at 63, citing Watkins v. United States, 354 US 178, 187 (1957).
[12] Id. at 64
[13] Id.
[14] Id. at 14. See also https://www.penncapital-star.com/government-politics/pa-judge-grants-request-to-join-lawsuit-against-senate-gop-subpoena-election-investigation/ (hereinafter Senators’ Brief) at 12.
[15] Senator’s Brief at 12-15.
[16] Commonwealth Brief at 56.
[17] Id. at 56-59.
[18] Id. at 54-55.
[19] SIOC Brief at 31, 22.
[20] https://apnews.com/article/judge-throws-out-trump-suit-pennsylvania-87eaf4df86d5f6ccc343c3385c9ba86c
[1] https://www.salon.com/2021/09/16/pennsylvania-subpoenas-personal-information-of-every-for-2020-fraudit/; See also https://paelectioninvestigation.com/wp-content/uploads/sites/110/2021/09/Intergovernmental-Operations-Requested-Document-List.pdf
[2] https://www.penncapital-star.com/government-politics/pa-judge-grants-request-to-join-lawsuit-against-senate-gop-subpoena-election-investigation/
[3] https://senatorcrisdushpa.com/wp-content/uploads/sites/104/2021/10/Committee-Brief-AS-FILED-10.22.21-02160169x9E3AD.pdf (hereinafter SIOC Brief), at 5.
[4] https://www.governor.pa.gov/newsroom/governor-wolf-signs-election-reform-bill-including-new-mail-in-voting/
[5] SIOC Brief at 7.
[6] Id. at 87.
[7] Id. at 86; See also https://www.attorneygeneral.gov/wp-content/uploads/2021/09/2021-09-23-Pennsylvania-v.-Dush-Petition-FINAL-VERIFIED-EXHIBITS.pdf (hereinafter Commonwealth Brief) at 63.
[8] Pa. Const. Art. II, §11; PA Senate Rules 14(d)(3). See also 46 P.S. §61.
[9] SIOC Brief at 84, quoting McGinley v. Scott, 164 A.2d 424, 430 (Pa. 1960).
[10] https://www.penncapital-star.com/government-politics/pa-judge-grants-request-to-join-lawsuit-against-senate-gop-subpoena-election-investigation/
[11] Commonwealth Brief at 63, citing Watkins v. United States, 354 US 178, 187 (1957).
[12] Id. at 64
[13] Id.
[14] Id. at 14. See also https://www.penncapital-star.com/government-politics/pa-judge-grants-request-to-join-lawsuit-against-senate-gop-subpoena-election-investigation/ (hereinafter Senators’ Brief) at 12.
[15] Senator’s Brief at 12-15.
[16] Commonwealth Brief at 56.
[17] Id. at 56-59.
[18] Id. at 54-55.
[19] SIOC Brief at 31, 22.
[20] https://apnews.com/article/judge-throws-out-trump-suit-pennsylvania-87eaf4df86d5f6ccc343c3385c9ba86c
