Skip Navigation

Federal guidance poses yet another problem for the GOP-backed effort to review the 2020 election

  • Sam Dunklau
Philadelphia election workers process mail-in and absentee ballots for the general election, at the Pennsylvania Convention Center, Tuesday, Nov. 3, 2020, in Philadelphia.

 Matt Slocum / AP Photo

Philadelphia election workers process mail-in and absentee ballots for the general election, at the Pennsylvania Convention Center, Tuesday, Nov. 3, 2020, in Philadelphia.

(Harrisburg) — The Department of Justice is advising against the Arizona-style election investigation being called for by state Sen. Doug Mastriano (R-Adams County).

Mastriano and at least four other GOP state senators — Dave Argall (R-Schuylkill), Cris Dush, (R-Jefferson), Chris Gebhard (R-Lebanon) and Judy Ward (R-Blair) — have all supported another investigation of the 2020 General Election despite multiple court challenges and local and state election officials all concluding months ago that the contest was free and fair.

York, Tioga and Philadelphia counties each received a letter in July penned by Mastriano asking their boards of elections to turn over an extensive list of materials to the Senate’s Intergovernmental Operations committee. Mastriano chairs that 10-person panel. The items on the list resembled those that have been subpoenaed by the Arizona Senate in its own widely criticized review of last fall’s election.

In a document released late last week outlining legal “constraints,” the DOJ said turning over things like ballots or hard drives to anyone who isn’t an election official could violate the Civil Rights Act.

“Where election records leave the control of elections officials, the systems for maintaining the security, integrity and chain of custody of those records can easily be broken,” the document reads.

“This risk is exacerbated if the election records are given to private actors who have neither experience nor expertise in handling such records and who are unfamiliar with the obligations imposed by federal law.”

A Luzerne County worker canvases ballots that arrived after closing of voting until Friday at 5 p.m. and postmarked by Nov. 3rd as vote counting in the general election continues, Friday, Nov. 6, 2020, in Wilkes-Barre, Pa

Mary Altaffer / AP Photo

FILE PHOTO: A Luzerne County worker canvases ballots on Nov. 6, 2020, in Wilkes-Barre, Pa.

Earlier this year, the Department of State led a review of 45,000 randomly selected ballots from the 2020 election in what is called a risk limiting audit. All 67 counties were also required by law to review a small share of their own ballots to check for errors. Both efforts confirmed that Joe Biden won Pennsylvania’s 20 electoral votes.

By last Friday, Philadelphia County commissioners voted to reject Mastriano’s request for materials. Tioga County has also refused the ask, while York County has asked whether the request would put it at odds with the Department of State.

That agency said last month that counties would be forced to replace any election machine turned over for a third-party election review. The three counties picked by Mastriano have separately said doing so would cost them each millions of dollars.

“Based on our estimates, replacing our voting systems and equipment alone would cost over $35 million,” Democratic Philadelphia Commissioner Omar Sabir said. “It’s not practical. We really just want to move forward.”

Sabir said he voted against participating in a new third-party review in part because it would involve handing over identifying information about individual voters, like their names, addresses and dates of birth, to people outside of the election process.

The Department of Justice’s guidance noted that releasing that kind of information might constitute voter intimidation, and for investigators to make sure that sharing that info “has neither the purpose nor the effect of dissuading qualified citizens from participating in the electoral process.”

“The guidance … pretty much made it clear what the direction was that we should go in,” Sabir said.

County officials have also suggested it would be difficult to obtain new voting machines in time for this year’s November election. Tioga County Solicitor Christopher Gabriel said election workers have told him they need voting machines and materials in place for that contest by Aug. 20.

“So if we were to get our machines decertified, the closer you get to that date, the more problematic that would become,” Gabriel said.

Counties were to have responded to Mastriano’s request by the end of the weekend. The Adams County Republican has signaled he’ll try to get the Senate committee he chairs to subpoena the materials — but so far, no meeting to do that has been set.

Sabir said Philadelphia County is ready to fight any legal order that comes its way.

“I have a full and unwavering faith in our city solicitors, our law department in Philadelphia County. They have been excellent and if we have to go back to court, we’ll have to go back to court,” he said.

York County spokesperson Mark Walters said county commissioners there are taking a more “measured” approach, asking a variety of questions about the request in a letter that has yet to be answered.

Walters said the county will respond to any subpoena only if and when one is issued.

“Next steps are really [to] hurry up and wait,” Walters said. “The senator offered a deadline to respond, York County met that deadline with our response and we’re really just kind of waiting to see how it develops from here.”

The Associated Press reports a crowdfunding effort supporting an Arizona-style “audit” of the 2020 election has received more than $15,000 from 332 donors.

Pa. Republican lawmakers and the U.S. Capitol attack
As part of WITF’s commitment to standing with facts, and because the Jan. 6 attack on the U.S. Capitol was an attempt to overthrow representative democracy in America, we are marking elected officials’ connections to the insurrection. Read more about this commitment.
Sen. Mastriano (R-Adams) is one of several dozen state lawmakers who signed a letter asking members of Congress to delay certifying Pennsylvania’s electoral votes despite no evidence that would call those results into question.
This supported the election-fraud lie, which led to the attack on the Capitol.

Support for WITF is provided by:

Become a WITF sponsor today »

Support for WITF is provided by:

Become a WITF sponsor today »

Up Next
Politics & Policy

Tracking Pa.’s pandemic spending, by the numbers