Pennsylvania 2020 Election Investigation (State Senators)

Costa v. Corman

Filed: September 17, 2021

Decided: March 10, 2023

Petition filed by Democratic state senators in Pennsylvania state court seeking to stop a Republican-led investigation of the 2020 presidential election and block a subpoena issued to the Acting Secretary of the Commonwealth for election materials that provide the “names, dates of birth, driver’s license numbers, portions of social security numbers and addresses of all registered voters in the Commonwealth.” The petition argues that this audit violates state constitutional and statutory law because it usurps the power to conduct election contests from the judiciary, constitutes an unauthorized election contest and the subpoena requests personal information from voters that is illegal to share publicly. The petitioners ask that the court bar the enforcement of the Republicans’ subpoena and stop the audit from continuing. A hearing was held on Sept. 12. The case was dismissed on Feb. 9, 2023. On Feb. 23, the petitioners asked the court to re-hear the case. The court declined to rehear the case on March 10, 2023.

Courtroom Updates

On Sept. 12, 2022, a three-judge panel of the Commonwealth Court heard oral argument. The panel requested to hear arguments regarding jurisdictional issues, but the merits of the case were discussed as well. As a refresher, the State Senate Intergovernmental Operations Committee (the “committee”) is requesting that the Pennsylvania secretary of the commonwealth provide the “names, dates of birth, driver’s license numbers, portions of social security numbers and addresses of all registered voters in the Commonwealth.” Each side had time for argument and rebuttal. Their arguments are summarized below.

The hearing began with an attorney representing the Republicans on the committee, who argued that the committee is entitled to the information requested in the subpoena. The Republican attorney stated that the committee needs the information “for the creation of potential legislation.” However, when asked by a judge why Social Security numbers, for example, are necessary to share, the attorney was vague and stated that “more information is better.”

Additionally, the pro-voting rights group (representing voters’ interests) intervenors’ attorney in the case noted that a vendor for an audit was allegedly paid hundreds of thousands of dollars but the reason why has not been disclosed. He also mentioned that the vote on the subpoena broke down on party lines in the committee, which left committee members in the minority essentially in the dark.
The attorney representing Pennsylvania argued that the committee is not entitled to the information requested under Article 1 of the Pennsylvania Constitution, which limits the government’s ability to encroach on individual freedom and privacy. He argued that this is sensitive information which represents a monumental privacy interest and the existing legal balancing test should take that into account. He explained that when a voter registers to vote, they give up certain information to the department of state, but do not agree to give that information up to the Legislature. Additionally, the attorney alleged that the committee requesting this information has not shown interest in any potential alternatives, such as requesting information without Social Security numbers, seeking a subset of information or even asking for information specific to counties or voters. The secretary maintained that the Pennsylvania Constitution prevents her from simply handing over the information unless the balancing test is met (meaning that the interest of the committee outweighs the very large privacy interests). The state also argued that the committee has not been clear about how they would protect the data.