SUBPOENA SHOWDOWN

5 reasons why Pennsylvania Democrats are suing Republicans over election subpoenas

By Justin Sweitzer

State Sen. Vincent Hughes has called the GOP election investigation a “scam” and insisted there is no evidence to warrant it. SENATE DEMOCRATS have filed multiple lawsuits challenging a GOP committee’s efforts to subpoena the voting info of nearly 9 million Pennsylvanians as part of a partisan probe into the state’s recent elections. Attorney General Josh Shapiro followed suit a week later, arguing that the subpoenas would expose sensitive voter information in a manner that violates the state constitution.

Republicans say their “forensic investigation” into the state’s elections will help policymakers update the state’s election laws and improve confidence in elections while also helping to discern whether allegations of voter fraud have any merit.

But Democrats view the investigation as a thinly-veiled political ploy to appease former President Donald Trump, who has called for state-level election “audits” as he pushes conspiracy theories about the 2020 general election. Democrats are hoping that their legal challenges will succeed and result in the subpoenas being blocked.

Here are 5 reasons why state Democrats are dueling with their Republican counterparts:

1 - They say the legislature doesn’t have the authority to contest elections. Democrats on the committee undertaking the review argue that the GOP-led election investigation amounts

State Sen. Jay Costa and his colleagues argue that the GOP subpoena is a violation of the separation of powers.

to an effort to contest the results of the 2020 general election, which, they maintain, the legislative branch has no authority to do.

In their 178-page filing, the Democratic members of the Senate Intergovernmental Operations Committee cite a provision in the state constitution that assigns the judicial branch with the “trial and determination of contested elections.”

The filing refers to the Senate investigation as “a de facto untimely election contest, disguised as a legislative investigation, in a venue without jurisdiction,” and asks the court to declare the investigation to be unconstitutional. 2 - They argue that lawmakers can’t conduct election audits. Democrats’ second argument centers around the idea that only the executive branch can conduct audits and that auditing powers rest with the state auditor general’s office.

In the court filing, Democrats cite a provision in the Administrative Code that determines it is “unlawful for any other administrative department, any independent administrative board or commission, or any departmental administrative or advisory board or commission, to expend any money appropriated to it by the General Assembly for any audit of its affairs.”

Democrats will have to make a compelling case to the court that the review is, in fact, an audit. They maintain that because the intent of the committee is to “gather large swaths of private voter information to investigate allegations of wrongdoing and fraud” that the review is just that. 3 - They maintain that the subpoenas would violate privacy protections. Shapiro says the GOP-issued subpoenas would violate privacy protections in both the U.S. and state constitutions and has pointed to language in the documents, as well as legal precedents, to back up his arguments.

Citing a 2016 opinion, Shapiro’s office argues that the state constitution “protects the right of Pennsylvanians to informational privacy, which includes the right to control access to and the dissemination of personal information.”

The Democratic attorney general says that because the subpoenas would violate constitutional privacy protections, the Commonwealth Court should block them. 4 - They say the election review would jeopardize protected information. Now comes the argument against allowing the committee – and potentially a third-party vendor – access to personal voter information. The committee subpoenaed the Department of State for access to the names, dates of birth, addresses, driver’s license numbers and last four digits of the Social Security numbers of all registered voters in the state, as well as all voters who cast ballots in the 2020 general election.

Democrats are asking the court to block the release of this information to the committee, arguing that “only a very limited number of officials review and retain the information that an applicant provides to register to vote.”

The filing continues: “The security and confidentiality of this system is so important that the General Assembly included a criminal provision for the unauthorized access” to a database housing voter registration information. 5 - They argue that the investigation serves no legislative purpose. In his lawsuit against Senate Republicans, Shapiro argues that the Senate Intergovernmental Operations Committee lacks a clear legislative purpose behind its probe. He references comments made by Senate Intergovernmental Operations Committee Chair Cris Dush, who said the committee’s election review will help determine whether election fraud allegations have any merit. Shapiro countered that the committee hasn’t presented any evidence of fraud and so it has overstepped its authority.

“Fraud investigations are the domain of the executive branch, and thus the search for election fraud does not serve any legitimate legislative purpose,” the suit reads.

Shapiro asserts that concerns about the 2020 and 2021 elections have been created on false, partisan claims.