A five-member court panel heard over two hours of arguments Wednesday afternoon that mostly centered on whether voter data requested by the Intergovernmental Operations Committee in September poses a risk that far outweighs constitutional privacy rights.
The committee on Sept. 15 held a party-line vote issuing 17 subpoenas to the Department of State for, among other things, data on all voters, including their driver’s license numbers and partial social security numbers.
The subpoenas saw near immediate legal challenges from Senate Democrats and Attorney General Josh Shapiro, who filed petitions to quash the subpoenas over privacy and jurisdictional concerns.
Common Cause Pennsylvania, the League of Women Voters of Pennsylvania, Make the Road Pennsylvania and the eight voters were also granted party status in Shapiro's lawsuit near the end of October.
The goal for the committee has been to perform a “forensic audit” of the November 2020 general election and the May 2021 primary to “restore faith in Pennsylvania’s election.”
GOP members voted late last month hiring Iowa-based Sage Envoy, which has no prior experience investigating elections, to conduct the audit for $270,000 on a six-month contract which could be extended due to litigation.
Committee Chair Sen. Cris Dush, R-Jefferson, has said previously the information will be used “to cross match and verify whether or not our voter registration system has duplicate voters, dead voters, and/or illegal voters.”
Dush, Senate President Pro Tempore Jake Corman and Parliamentarian Megan Martin have since been named in multiple lawsuits filed to stop the subpoenas from moving forward.
Michael Fischer, a chief deputy attorney general representing the state department, said the committee’s data request was an “extremely attractive target for hackers” to be turned over to a relatively unknown firm without a detailed plan to keep that data secure.
Fischer also said that the state department has made available similar data to contractors in the past, that access comes with “extraordinary” security measures.
“When it’s shared with our contractors, first of all, those contractors go through a lengthy (bidding) process ... and the department knows who exactly will be accessing that data down to the individual,” Fischer said.
Clifford Levine, an attorney representing the Democratic Caucus, added that the committee appeared to be doing a “fishing expedition” to curry political favor from former President Donald Trump and his supporters who continue to doubt that President Joe Biden won the election fairly.
Matthew Haverstick, attorney for Dush, Corman and the committee, said the subpoenas are a “records request, intra-government in the commonwealth. This happens all of the time.”
Haverstick said the ultimate legislative purpose of the committee is to refine laws like Act 77, which effectively expanded the absentee ballot process to include “no excuse” mail ballots to any voter in Pennsylvania.
“They don’t want the Senate to have it ... because they don’t like the legislation that might come out of it,” Haverstick added.
While jurisdiction and purpose will be major considerations for the court as they deliberate, the voters rights groups and voters intervening Wednesday have made privacy the top of their concerns in this case.
Attorney Keith Whitson said one of the biggest problems in the subpoena is that it violated a reasonable expectation of privacy by people who registered to vote, specifically that certain information wouldn’t be shared.
The judges will determine if sharing information between two branches of government violates that expectation, Whitson added that there other ways the committee could have gone about investigating potential flaws in the state’s voter registration system.
One example Whitson pointed to was to request names and dates of birth, which can be obtained through the state department’s voter export online, and check for duplicate entries.
The judges also seemed to wonder if a hearing might be more appropriate instead of a summary judgement regarding the risks of identity theft.
It didn’t appear that the judges doubted claims by most of the attorneys that the data could leak, but more so that the risks were being presented as a matter of fact without expert testimony.
Although only attorney’s spoke during Wednesday’s hearing, four of the eight voters pushing back on the subpoenas talked about those concerns during a press conference organized by the American Civil Liberties Union of Pennsylvania Tuesday.
Bucks County voters Michael and Kierstyn Zolfo were among four of the voters involved in the case speaking at a press conference organized by the ACLU on Tuesday morning.
“I’m surprised about the partisanship of this situation. I don’t think it’s a Republican and Democrat issue, it’s just not appropriate to be getting our personal information in this regard,” Michael Zolfo, a “lifelong Republican” and a former health care technology consultant.
“From a professional perspective, I know even the best plans can go wrong and there’s always a chance something can go wrong intentionally or unintentionally,” he added.
Kierstyn Zolfo reiterated past statements that she has had chronic medical conditions for years that require multiple high-cost medications she relies on to lead a “somewhat normal life.”
“If you have those last four digits of my social security number, you could call and reroute the address that those prescriptions are going to be sent to,” Kierstyn Zolfo said Tuesday.
Robin Roberts, a Democrat from Philadelphia, added the risk of identity theft meant the risk of little legal recourse if the data fell into the wrong hands.
“When someone illegally accessed our bank account information, it was up to us, my husband and myself, to find and fight all of the charges to get our money back, to find the offender, to supply that information to the police and then nothing happened,” Roberts said.
Roberts also said the audit could also negatively impact Black voters like her and other underserved communities she said have been historically subjected to voting rights violations.
“The latest demand is a huge overreach to our right to privacy, and there is no clear rationale to what this information is going to be used for,” Roberts said.
Ben Bowens, another Democrat from Philadelphia, added that the audit could turn people away from voting, describing it as “un-American, almost.”
ACLU PA Legal Director Vic Walczak also said Tuesday he expected the court’s ruling not to come until at least early 2022.
© 2021 Bucks County Courier Times, Levittown, Pa. Distributed by Tribune Content Agency, LLC.
