Pa.’s top prosecutor sues to block subpoenas issued as part of Senate GOP election investigation

In a lawsuit filed Thursday afternoon, Pennsylvania’s top prosecutor challenged 17 subpoenas issued by Senate Republicans, for voters’ identifying information, as part of the GOP-backed investigation into the 2020 general and 2021 primary elections.

In a 76-page suit, filed in Commonwealth Court, Attorney General Josh Shapiro argues that the subpoenas issued in a party-line vote by the Senate Intergovernmental Operations Committee last week, threaten Pennsylvanians’ rights to “free and fair elections and to the protection of their personal information.”

The legal requests asked for the Department of State, under Democratic Gov. Tom Wolf, to provide the Senate committee with 9 million Pennsylvanians’ voting histories and addresses — which is already public information — as well as private identifying data, such as driver’s license numbers and partial social security numbers. The agency has oversight of elections in the commonwealth.

“Their subpoenas were largely a stunt because the vast majority of the data that they’re requesting is publicly available, but by trying to pry into driver’s license and social security numbers, we believe they have gone too far,” Shapiro told reporters late Thursday afternoon. “These subpoenas demand this new set of data protected by law and by our constitution without providing any information regarding what they are doing to keep it secure.”

The data requests are due by Oct. 1, and the information will be handed over to a third-party vendor, which has yet to be hired, according to Senate Intergovernmental Operations Committee Chairperson Cris Dush, R-Jefferson.

The suit alleges that Dush and Senate President Pro Tempore Jake Corman, R-Centre, are “purporting to conduct an investigation into supposed election irregularities — even though the Intergovernmental Operations Committee has no experience, authority, or jurisdiction to oversee election matters.”

“You would not let a large company act this way with personal data,” Shapiro said.

He added: “We have to uphold the law. This isn’t about hiding information as some have suggested. This is about our responsibility in the Office of Attorney General to protect Pennsylvanians.”

Earlier this month, Dush said that the identifying information was needed to verify “the validity of people who have voted, whether or not they exist.” He referenced affidavits gathered by the state Republican Party as proof, but said he had not yet reviewed the documents.

As required by law, all 67 Pennsylvania counties conducted post-election audits of a statistical sampling after the 2020 general election. Sixty-three counties conducted “risk-limiting” audits. Neither review found evidence of voter fraud or election misconduct.

Senate Republicans’ effort to review the 2020 general and 2021 primary elections come after former President Donald Trump claimed without evidence that his loss was influenced by widespread voter fraud, claims echoed by his Republican allies across the country — including in Harrisburg.

Those claims have been debunked by everyone from Trump’s attorney general to county election officials, and legal challenges to the election have been dismissed in federal court.

Shapiro isn’t the only one challenging the subpoenas. Senate Democrats filed a legal challenge last week, asking for Commonwealth Court to block the information requests on different grounds. Their suit claims the subpoenas violate state court’s constitutional duty to adjudicate elections, step into the executive duties of the state’s auditor general, and violate state privacy law.

The cases were filed in a lower appeals court that has a conservative majority of judges. But appeals would go to the state Supreme Court, which has a 5-2 liberal majority.

However, one state constitutional expert told the Capital-Star that he was still doubtful that the challenge would succeed.

Bruce Ledewitz, a Pennsylvania constitutional law expert at Duquesne University in Pittsburgh, said that the most likely outcome in this fight between the executive and legislative branches was that the courts find the subpoenas nonjudicial, letting the bench evade the thorny legal and political questions at stake.

Ledewitz, a Capital-Star opinion contributor, noted that there’s very little state or federal precedent in cases like this, so courts could leave the situation in a legal gray area — not dismissing the challenges, but not ordering the subpoenas enforced either.

That would leave both sides to simply argue with each other without a clear resolution.

As for Shapiro’s new suit, Ledewitz said that he didn’t understand why he went to court at all. An advisory to the state or counties telling them that the subpoenas are unlawful would do just as much as a lawsuit, Ledewitz argued, with no risk of a legal defeat.

“You make your opponent go to court,” he said. “If you don’t have to do anything, then you don’t go to court.”