Pa. Republicans won’t hire a contractor for 2020 election review until a judge gives the OK, aide says

Senate Democrats and state Attorney General Josh Shapiro sued to block a subpoena seeking voter records. A judge has yet to rule.

Pennsylvania Sen. Cris Dush (R., Jefferson), chairman of the committee reviewing the 2020 election.Read moreMatt Rourke / AP

by Andrew Seidman

Published Oct. 3, 2021, 4:46 p.m. ET

Pennsylvania Senate Republicans say they won’t hire a private contractor to assist with their review of the 2020 election until a judge weighs in on the matter.

A GOP-led Senate committee subpoenaed Gov. Tom Wolf’s administration last month for millions of voter records and set an Oct. 1 deadline to comply.

Senate Democrats and state Attorney General Josh Shapiro sued to block the subpoena in Commonwealth Court, and the Wolf administration did not hand over the records Friday. A judge has yet to issue a ruling in the cases.

Republicans say they are awaiting court review before they hire a vendor.

“We’re not going to finalize anything with a vendor and spend taxpayer dollars until we can make sure that the investigation is allowed to move forward by the courts,” Jason Thompson, a spokesperson for the Senate committee leading the review, said Sunday. “We’re proceeding with an abundance of caution when talking about spending taxpayer dollars.”

Why we're not calling it an audit

The Inquirer is not currently referring to attempts by Pennsylvania Republicans to investigate the 2020 presidential election as an audit because there's no indication it would follow the best practices or the common understanding of an audit among nonpartisan experts. When asked by The Inquirer, lawmakers leading the effort have not explained how it will actually be run, including whether and how best practices will be followed; who will be involved, including the extent to which Republican politicians will play a role; how the review will be documented; how election equipment and ballots, if obtained, would be secured; and what the scope of any review would be. Joe Biden won Pennsylvania by more than 80,000 votes. State and county audits affirmed the outcome, and there is no evidence of any significant fraud.

The subpoena seeks records from the Department of State on all nine million registered voters, including nonpublic personal information such as their driver’s license numbers and the last four digits of their Social Security numbers.

Sen. Cris Dush (R., Jefferson), chairman of the panel that issued the subpoena, has said the records will help lawmakers investigate potential election fraud. Senate Republicans have been interviewing potential vendors to help review those records and aid the broader inquiry.

GOP lawmakers issued the subpoena after former President Donald Trump and his allies spent months urging Republican legislatures in Pennsylvania and other swing states he lost to reexamine the election.

President Joe Biden won Pennsylvania by more than 80,000 votes. Neither litigation nor post-election audits turned up evidence to the contrary.

Senate Democrats filed a lawsuit on Sept. 17 alleging the subpoena tramples on the authority of the executive and judicial branches and violates state election law, which they say prohibits the disclosure of voters’ private information to a third-party vendor.

In response, lawyers for Republicans said in court papers last week that Democrats lacked standing to sue, a basic legal threshold. They also said the state constitution authorizes the Senate to undertake the investigation.

The Senate Intergovernmental Operations Committee “is analyzing whether to make, alter, or repeal election laws,” wrote outside counsel Matthew H. Haverstick, of the law firm Kleinbard LLC. “It is doing so through a factual investigation. That investigation is being conducted in part by subpoena. And the subject matter of the investigation — elections — is not only arguably within the Senate’s power, but also constitutionally committed to the Senate’s (and House’s) purview in multiple sections.”

Republicans also disputed Democrats’ claim that sharing voters’ personal information with a private vendor would violate state law, noting that the Department of State is currently under contract with a firm that helps administer the statewide voter registration database.

“There is no reason to believe or suggest that any contract with a third-party vendor to review this information as part of the committee’s investigation would not contain the same types of protections against unlawful disclosure as would any contract entered into by the Department of State as it relates to this information,” court papers say.