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The Pennsylvania state Senate’s election investigation gets its day in court – nearly a year after it started

Commonwealth Court judges are mulling whether the Republican-led probe into Pennsylvania’s election system can move forward.

  • Sam Dunklau
Chairman of the Senate Intergovernmental Operations Committee Sen. Cris Dush, R-Jefferson, speaks during a hearing at the Pennsylvania Capitol in Harrisburg, Pa., Wednesday, Sept. 15, 2021.

Matt Rourke / AP Photo

Chairman of the Senate Intergovernmental Operations Committee Sen. Cris Dush, R-Jefferson, speaks during a hearing at the Pennsylvania Capitol in Harrisburg, Pa., Wednesday, Sept. 15, 2021.

For nearly a year, a Republican-led Pennsylvania Senate committee has been trying to get under the hood of the state’s election system and recommend changes. That’s despite the nearly identical work of two separate committees in the House and Senate – and the declarations of election audits and experts that the state delivers accurate results.

The panel, led by Sen. Cris Dush (R-Cameron), subpoenaed the Department of State last September for records on every Pennsylvania voter – including their drivers license and partial social security numbers – and more than a dozen other things like audit reports.

The agency challenged the request in court, and after months of procedural snarls, a three-judge panel heard oral arguments in the case Monday. 

“Let’s not lose sight of the elephant in the room here,” Clifford Levine, a lawyer for Senate Democrats, said. “When you invoke the interest of privacy, the question is ‘why do you need this information?’”

The probe by Dush’s panel, known as the Intergovernmental Operations committee, has been on ice for months. Dush has said state senators cannot conduct “a deep-dive review into our voting system” without the tranche of voter records it wants.

In January, a data security company hired by the committee was set to begin examining 2020 election machines used by south-central Fulton County voters, but were thwarted when the state Supreme Court blocked the review so it could review a legal challenge. 

Both efforts have been fed by former President Donald Trump’s false claim that he was robbed of a 2020 election victory in Pennsylvania. President Joe Biden won the state by more than 80,000 votes.

Lawyers for Senate Republicans said on Monday that most of the information the committee wants is publicly available, and that it should get the “benefit of the doubt” to handle more sensitive info.

“That information flows between the executive branch all the time. It flows between the executive branch and the judicial branch all the time,” lawyer Matt Haverstick said.

“What makes it so radically different from all those other entities that it’s not entitled to the benefit of the doubt that everyone else gets?”  

The Department of State says the Senate GOP hasn’t been clear about why it wants the info – or how the request serves the public. Lawyer Keith Whitson focused on that as he presented the case of several voters who oppose the subpoena.

“If they [the Intergovernmental Operations committee] want to find duplicate registrations, they can ask the Secretary to print out a list or get that information from the center that keeps that information for that very purpose,” he said.

“They don’t need the personally-identifiable information for all of us. Even if they needed it for some, why not do it for a precinct or a county? Why statewide? They haven’t even ventured to offer any rationale for this.”

Commonwealth Court judges have not said when they will rule, but at least one of the three judges on Monday’s panel signaled support for the subpoena. 

“The legislature investigates things all the time for the purpose of passing legislation,” Judge Mary Hannah Leavitt said. “The power to legislate necessarily requires the power to investigate. 

“Maybe by collecting that information, you find out whether somebody voted by mail or in-person. That might indicate to the legislature that maybe we need to tighten up the law.”

Dush said earlier this year that his committee is “ready to go” if the Court requires the Department of State to hand over voter records.

In the meantime, the panel has been gathering testimony, including at a late March hearing that featured three people who say they witnessed ballot stuffing during last November’s election. None of the claims they presented showed evidence of a widespread problem.

Pa. Republican lawmakers and the U.S. Capitol attack

As part of WITF’s commitment to standing with facts, and because the Jan. 6, 2021 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. Dush (R-Cameron) is among the several dozen state lawmakers who signed a letter asking Congress to delay certifying Pennsylvania’s 2020 election result, despite no evidence that would call that result into question.

This supported the election-fraud lie, which led to the attack on the Capitol.

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