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From the archives 2021

Court battle over Pa. GOP’s subpoena of sensitive voter data centers on legislative power vs. privacy

by Danielle Ohl of Spotlight PA |

A Pennsylvania voter in Camp Hill wears an I Voted sticker on Election Day, Nov. 8, 2022.
Amanda Berg / For Spotlight PA

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HARRISBURG — An appellate court leveled sharp questions Wednesday in the opening round of a closely watched court case over whether Republicans in the state Senate have the power to subpoena sensitive voter information as part of a partisan inquiry into the 2020 election.

A coalition of Democrats is seeking an order quashing the subpoena and argues it goes too far by requesting information — including the names, addresses, and partial Social Security numbers — for nearly 9 million registered voters in the state.

Republicans who control the state Senate say they believe the sweeping review is necessary to ensure there were no irregularities in the 2020 election, citing the state’s evolving guidance last year about how counties should handle mail-in and other ballots.

GOP legislative leaders have acknowledged they have found no evidence of fraud. Several official reviews have affirmed the outcome of Pennsylvania’s election.

Lawyers for Senate Democrats, Attorney General Josh Shapiro, and Sen. Art Haywood and his wife, Julie Haywood, as private citizens, argued that a balancing test should be applied to weigh the necessity of the investigation against the possible disclosure of private information. The Democrats were joined by the ACLU of Pennsylvania.

“The judiciary over and over again has said, now you engage in a balancing test,” said Clifford Levine, an attorney for Senate Minority Leader Jay Costa (D., Allegheny). “You got 9 million individual records here. What’s the motivation? What’s the purpose here? They haven’t identified the fraud.”

But in questioning, two Republican judges on the five-person Commonwealth Court panel expressed skepticism that the court should intervene in the business of the legislative branch and countered that the Democratic petitioners simply might not like what the subpoena seeks.

“Didn’t you ask this committee what the legitimate purpose is?” Judge Anne Covey asked.

Attorney Keith Whitson, arguing on behalf of the ACLU and other interested parties, said the committee identified alleged voter fraud, but Covey cut him off.

“So you didn’t like the answer, or you didn’t agree with the answer, but you got an answer, right?” the judge said.

Questions from the Democratic judges on the appellate panel focused on whether the legislature’s power to seek private information is limited. With unlimited authority, asked Judge Michael Wojcik, would the Senate be able to subpoena the tax returns of every Pennsylvania resident?

“I think it could,” said Matt Haverstick, an attorney with Kleinbard LLC who argued for the Republicans that the authority of Senate committees to issue subpoenas isn’t limited by the purpose of the individual committee, nor is it restricted if the recipient disagrees with it.

Haverstick agreed there is some inherent risk with sharing sensitive information but said his clients had never claimed otherwise or said they intended to be irresponsible with the data.

“Of course everyone’s concerned with protecting the data,” he said.

Last month, Sen. Cris Dush (R., Jefferson), who chairs the committee conducting the investigation, announced a contract with Envoy Sage, an Iowa-based crisis management and research firm with no known election experience, to analyze the data.

Attorneys for the Democrats argued Dush and his committee lacked the authority to issue the subpoena because elections are outside the scope of what the committee typically handles.

“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, that has had no experience, with no [request for proposals].”

But Covey, one of the GOP judges, responded that it was the legislature’s right to “run into a brick wall.”

“That’s not the concern of the court,” she said. “And frankly, I don’t think it’s the concern of other members of the General Assembly.”

The judges will now weigh whether to issue summary judgment — a fast-tracked decision — one way or another on the subpoena, or to call for a fuller hearing of the facts and arguments.

Correction: A previous version of this story incorrectly stated there were three Democratic judges on the Commonwealth Court panel. There are two Democrats and three Republicans.

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