Request to join Pa. election lawsuit gets a day in court, Senate GOP lawmakers respond to challenge

‘Our information is at stake,’ Keith Whitson, an attorney for the interveners, said in court Friday

By: - October 22, 2021 4:40 pm

State Sen. Anthony Williams, D-Philadelphia, speaks at a Sept. 15, 2021 Senate hearing to approve subpoenas for a legislative investigation of the 2020 election as panel chair Sen. Cris Dush, R-Jefferson, listens (Capital-Star photo).

The trio of good government groups looking to join the legal challenge to block the subpoena issued as part of the Senate-backed election investigation had their day in court on Friday, arguing that the potential release of identifying information could jeopardize voter privacy and limit advocacy efforts.

Commonwealth Court President Judge Mary Hannah Leavitt heard arguments over a request, filed by the American Civil Liberties Union of Pennsylvania, to intervene on behalf of the state chapters of Common Causethe League of Women VotersMake the Road, and eight voters.

If the court grants the request, the groups and their lawyers will be able to participate in a legal effort mounted by Senate Democrats and Attorney General Josh Shapiro. They’re trying to stop the subpoena issued by the Senate Intergovernmental Operations Committee as the Republican-controlled panel conducts an investigation of the 2020 general and 2021 primary elections.

“Our information is at stake,” Keith Whitson, one of the attorneys for the interveners, said in court Friday, adding that they intend to “protect their information” as part of this lawsuit — or by filing a separate one. “We clearly have interests at stake, interests that are different than the interest of the state.”

The subpoena for 9 million Pennsylvanians’ identifying information — name, birth date, address, driver’s license number, and partial social security number — poses safety and security risks for voters, five witnesses testified.

“We are concerned about people’s information being breached, people being possible victims of fraud,” Diana Robinson, civic engagement director for Make the Road Pennsylvania, said, noting the request for driver’s license information and partial social security numbers.

Make the Road is a nonpartisan nonprofit that advocates for low-income communities of color, particularly Latino and working-class communities. Voter registration and education are part of their advocacy efforts, Robinson testified. She added that privacy is a frequent concern during registration.

“Our communities already are oftentimes disenchanted with the process. And this may, if this were to go forward, it may create more barriers to people wanting to register to vote,” she said.

League of Women Voters of Pennsylvania President Terrie Griffin testified a similar interest from the nonpartisan group. The League focuses on voter registration and education, as well as government advocacy efforts.

If the subpoena is approved, Griffin, Robinson, and Khalif Ali, executive director of Common Cause Pennsylvania, said their respective groups would have to shift resources to educate voters on security and what to do if their information is compromised.

“I have no choice. I have to. We have to represent our constituents,” Griffin said, explaining why the League wants to join the case. “With that, there are people that we represent that don’t have a voice, so when I’m sitting here, I represent the voiceless.”

Matt Haverstick, an attorney for Senate President Pro Tempore Jake Corman, R-Centre, and Sen. Cris Dush, R-Jefferson — the Senate panel’s chairman — interrogated witnesses on security measures taken by the Department of State to protect voters’ information. He asked if they agreed the Legislature could implement similar protections.

Though unable to detail specific security measures, two of the witnesses, Roberta Winters, a registered Republican from Delaware County, and Ben Bowens, a registered Democrat from Philadelphia, were hesitant to express trust in the government’s ability to protect their personal information. 

Winters outlined her experience with identity fraud and described the “awful” and time-consuming process to address the security breach. As a teacher with two kids at the time, she described it as “just one more thing to add to a very busy life.”

“From my experience, I think the more people who have that kind of information, the greater the probability that my security and my private information is going to be put in jeopardy,” she said, responding to questions from Haverstick.

Efforts to review previous elections come after a month-long campaign from former President Donald Trump, who made unsubstantiated claims that fraud resulted in his loss to now-President Joe Biden, who won in Pennsylvania by 80,555 votes.

Trump allies, including some in Harrisburg, used the baseless allegations to fuel calls for a review.

Two post-election audits — a statistical sampling required by law and a risk-limiting audit — were conducted after the 2020 election in Pennsylvania. Sixty-three out of the commonwealth’s 67 counties participated in the risk-limiting audit pilot, and neither assessment found evidence of fraud. Federal judges dismissed challenges to the election in court. Trump’s attorney general and local election officials also debunked the former president’s claims.

Though the Pennsylvania Senate-initiated election investigation is currently tied up in court, Corman and Dush remain determined to move ahead with the review. 

The taxpayer-funded probe will not reinstate Trump to office, Dush said before the first hearing as part of the investigation.

 It’s also not a recount, Corman, who has argued there are “irregularities” worth examining, said in August. Both lawmakers signed a letter asking Congress to delay certification of Pennsylvania’s Electoral College results after the 2020 election.

In September, Dush said the requested information was necessary to verify voters’ identities.

“There is absolutely no precedent for the notion that there is a legally protected ownership interest in one’s social security numbers or even driver’s license numbers when they are in the hands of the government subject to being shared with the same level of government, a co-equal branch,” Shohin Vance, an attorney for Corman and Dush, said in court on Friday.

Negotiations with potential third-party vendors that will help conduct the investigation are ongoing; however, conversations and the vetting process are private. Vance added that actions to intervene in the case are “premature” and assume that the information will be compromised.

Dush has promised to keep the information safe; however, he has not outlined specific measures. A Senate website with information about the investigation says the data “will be stored securely” and only made available for the probe. The yet-to-be-selected third-party vendor also will have to sign a non-disclosure agreement.

The Commonwealth Court did not make an immediate ruling on the application to intervene.

In a brief filed after proceedings on Friday, Corman, Dush, and Republicans on the Senate panel leading the investigation argued that the General Assembly has the power to provide oversight and transparency for Pennsylvania’s elections, blasting arguments made in the lawsuit to block the subpoena.

The filing notes that the Department of State provided similar information to the League of Women Voters in 2012 as part of the organization’s lawsuit to overturn a voter identification law.

Attorneys for Corman and Dush asked a similar line of questions during Friday’s hearing. 

“If they gave that information to a private third-party group then, how can they possibly argue against transferring that data to another co-equal branch of government now?” Dush asked in a statement.

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