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A Pennsylvania appellate court won’t force the Department of State to release private voter information to state Senate Republicans as part of their long-running attempt to investigate the 2020 election.
But the court also left the door open for the GOP to continue seeking voters’ partial Social Security numbers and more.
In a decision Thursday, Commonwealth Court ruled that the state Senate Intergovernmental Operations Committee had other tools at its disposal to compel the department to comply with its subpoena and thus did not need the court to do so.
“The Senate Committee has express constitutional authority to enforce its subpoena,” the opinion read. “It may enforce its subpoena in accordance with the contempt statutes.”
It’s uncertain where the decision leaves the state Senate GOP’s 2020 election review, which has languished for much of the past year while the subpoena dispute has moved through the courts.
As the state Senate majority, Republicans still control the committee, though they have not made any apparent moves this session to continue the inquiry. The current chair, state Sen. Jarrett Coleman (R., Bucks), declined to comment and directed questions to the state Senate Republicans’ general counsel’s office, which did not immediately respond.
In 2021, motivated by reaction to former President Donald Trump’s unfounded claims of fraud, the committee began subpoenaing documentation such as communications with counties, audit reports, and also partial Social Security and driver’s license numbers for voters from the Department of State.
While the department provided some information, it argued that other information the committee was seeking contained sensitive private information about voters, which the state’s constitution prohibited the department from releasing.
This prompted the committee to sue the department, seeking to have the courts compel the department to release the records.
The court declined to provide that type of “extraordinary remedy” the committee sought because the committee has authority under the state’s constitution to enforce its subpoena. The court specifically mentioned the state Senate’s power to hold individuals in contempt.
“As I read it, it’s sort of saying, we’re not going to weigh in to enforce it, we’re not going to knock it down, you have your own constitutional authority,” said Adam Bonin, a Philadelphia-based attorney who regularly works on election law issues for Democratic candidates.
Commonwealth Court also dismissed the Department of State’s December motion to render the case moot, since the court’s decision addresses the underlying arguments of the case. The Department of State has argued that the subpoena effectively expired at the end of the last legislative session.
The Department of State did not respond to a request for comment. State Sen. Cris Dush (R., Jefferson), who was chair of the Intergovernmental Operations Committee when the case began, also did not respond to a request for comment.
Clifford Levine, a Pittsburgh lawyer who represented state Senate Democrats in the case, said the caucus was pleased “that the privacy interests of 9 million voters will be preserved.” Levine said since the subpoena was issued last legislative session — before the state Senate could move to hold anyone in contempt — the committee would need to issue new ones in the current session.
“The question is will the new Senate want to continue the Arizona-style audit that we saw in 2021,” he said. “We would be hopeful that this would be put to rest.”
The subpoena was issued as part of a Republican inquiry which began in July 2021 when state Sen. Doug Mastriano (R., Franklin), acting as chair of the committee at the time, took up Trump’s call for a “forensic audit” of the 2020 election and sent letters to three counties requesting election materials from them for auditing purposes.
Earlier in the summer, Dush and Mastriano had visited Maricopa County, Arizona, to tour an election review that legislative Republicans were conducting there.
Dush took over the investigation shortly after, and the committee’s focus turned to the Department of State. In September 2021, it issued a subpoena to the agency requesting the names, addresses, driver’s licenses, and partial Social Security numbers of all Pennsylvania voters, as well as all communications between state elections officials and elections officials in all 67 counties.
The request for voters’ private information drew strong rebuke from state Senate Democrats, the Department of State, the attorney general’s office, and nonprofits. They collectively sued in Commonwealth Court to block it, arguing it violated the Pennsylvania Constitution’s provision on a citizen’s right to privacy, among other things.
The inquiry mostly stalled as the case wound its way through the court over the next year, eventually resulting in oral arguments before a three-judge panel this past September.
It’s unclear if state Senate Republicans will appeal the ruling to the Pennsylvania Supreme Court or issue new subpoenas. Matt Haverstick, an attorney who represented the Republicans on the committee in the case, also did not respond to a request for comment.
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