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Pennsylvania Commonwealth Court to hear arguments in state GOP's election 'investigation'

The Pennsylvania Judicial Center.
Carolyn Kaster
FILE - The exterior of the Pennsylvania Judicial Center, home to the Commonwealth and Supreme Courts, Feb. 21, 2023, in Harrisburg, Pa.

A Pennsylvania court will hear arguments Wednesday over Democrats' efforts to block a subpoena of state election officials in what Republicans call a “forensic investigation” of last year’s presidential election, propelled by former President Donald Trump’s baseless claims that he was cheated out of victory.

The statewide Commonwealth Court has set aside 75 minutes for arguments in the case. The case will involve thorny questions about the separation of powers and voter privacy, constitutional law scholars say.

Challengers, including Senate Democrats and state Attorney General Josh Shapiro, also a Democrat, have sought to block the subpoena issued by a Republican-controlled state Senate committee.

It is an abuse of legislative power, serves no legitimate legislative purpose and stems from Trump’s efforts to undermine trust in the results of the 2020 presidential election, they say.

Issued in September, the subpoena seeks detailed election records, much of it already public, some information about voters that is protected by privacy laws and some information about election systems that is barred from public disclosure by federal law, Shapiro’s office wrote.

Trump and his allies have applied ongoing pressure in those battleground states where he lost to Democrat Joe Biden — including Pennsylvania — to investigate ballots, voting machines and voter rolls for evidence to support their baseless claims about election fraud.

Republicans insist the undertaking has nothing to do with Trump or trying to overturn last year’s presidential election, but rather is about fixing problems in the state’s elections.

However, committees in both the Senate and House, both controlled by Republicans, have already held numerous hearings, listened to hours of testimony and produced reports and legislation on that very topic.

Critics say the subpoena is duplicative, given the required audits already carried out by counties and the state, and the Republicans' “investigation” does not resemble any sort of post-election audit that is accepted by the election-administration community.

In any case, no prosecutor, judge or election board in Pennsylvania has raised a concern about widespread fraud in 2020's election, and courts at all levels have rejected claims about fraud, irregularities and violations.

Democrats say it is part of a national campaign to take away voting rights and undermine both democracy and elections.

The U.S. Department of Justice has said it is monitoring developments in Pennsylvania and other states “regarding post-election investigations of the 2020 general election.”

In particular, the lawsuits in Pennsylvania challenge the Republicans' request for the driver’s license numbers and partial Social Security numbers of roughly 9 million registered voters.

Granting that request would violate a person’s constitutional privacy protections, especially because the subpoena isn’t based on proof of wrongdoing, challengers say.

It also would expose voters to the risk of publicly disclosing their personal information, thus violating the constitutional right to vote, they say.

At another point, the challengers seek to block the Republicans’ request for copies of reports from audits and reviews of the state’s voter registration system going back to 2018.

That information is deemed to be “critical infrastructure information” submitted to the U.S. Department of Homeland Security and is barred from public disclosure by federal law, Shapiro’s office wrote.

The undertaking has divided Republican senators.

Critics in the caucus say the expectation of Trump and his supporters is nothing short of overturning the election.

It also has been secretive and partisan.

To do the work, Republicans hired a small firm with hardly any track record and no experience in elections on a no-bid contract without issuing a public request for proposals.

Last year, the conservative online publication American Greatness published an editorial by the firm's president claiming that tech giants are “collaborating with news agencies, students, academia, Hollywood, and the Democratic Party to restrict speech.”

The man who selected the firm, Sen. Cris Dush, R-Jefferson, advocated for overturning Biden's victory in Pennsylvania, at one point saying “there was no election. There was a scam."

In September, Dush said obtaining the detailed voter information was necessary to investigate unproven allegations that voters were registered as living at a condemned building. Dush has released no details about the allegations.

Months earlier, Dush visited the widely criticized and partisan election review being carried out by Senate Republicans in Arizona, and said he wanted to bring that model to Pennsylvania.

The subpoena in Pennsylvania, however, stops short of requesting ballots and voting machines, as was done in Arizona.

Updated: December 15, 2021 at 12:41 PM EST
This story was updated to include additional details.