Roberta Winters is an active member of her community and a retired public school teacher. She’s also twice been a victim of data breaches, once when the school district where she worked was hacked and later when her healthcare system’s network was breached.
Even before those hacks, she and her husband were victims of identity theft, which led to a total loss in their financial accounts. Fortunately for Roberta and her husband, their banks restored what they lost. But the entire experience was unsettling and distressing. They spent dozens of hours working to restore what they lost in resources and reputation. Her husband testified against the person accused of stealing their identity.
Represented by the ACLU-PA, the ACLU Voting Rights Project, and the law firm Schnader Harrison Segal & Lewis LLP, Roberta is one of eight Pennsylvania voters currently challenging subpoenas issued by the state Senate Intergovernmental Operations Committee for the personally identifying information of all nine million registered voters in the commonwealth. The committee seeks voters’ names, addresses, dates of birth, driver’s license and non-driver ID numbers, and partial Social Security numbers.
Several of these dedicated voters challenging the committee’s fishing expedition have been victims of various forms of identity theft and financial fraud. The personal data that the committee seeks is the key that unlocks a treasure trove to a person’s life, from their voter registration to bank records to medical information. That’s why it’s sought by bad actors and hostile nation-states and sells for millions on the dark web. That’s also why institutions that hold this data, like the Pennsylvania Department of State, implement high-level security practices to protect it. It’s not the kind of information that can simply be handed over on a whim to some senators and their lawyers and a random contractor in Iowa with no expertise in elections.
While worry of identity theft is a motivating factor for these voters, they and three advocacy organizations - Common Cause PA, the League of Women Voters of PA, and Make The Road PA - are challenging the committee’s subpoenas because there also are important legal principles at stake. The state constitution includes a right to privacy that places boundaries on the government’s ability to seize our personal information. To get it, the government better have a very good reason, and this committee does not. In court, the senators’ counsel hasn’t even tried to offer a reason. They simply claim that they’re the government so they should get it.
The General Assembly itself recognized the importance of protecting this data when it passed a law to prohibit the Department of State from releasing it. The department is following the law and the constitution by refusing to divulge the data.
A five-judge panel of the state’s Commonwealth Court is now weighing all of this, after hearing oral arguments on December 15, and will soon decide whether or not to quash the subpoenas. The parties in these three consolidated lawsuits have asked the court to rule based on the filings and arguments in the case, but the court also has the option to order an evidentiary hearing, which would feature witnesses and experts. An evidentiary hearing would also include discovery, a legal process in which the parties in a lawsuit can obtain relevant information from each other. If the court orders such a hearing, the court will force the committee to be more transparent about what it’s doing.
Senate leadership is engaged in behavior that endangers democracy, and the court can put a stop to it. The committee chairman has stated his interest in investigating individual voters. But that job is best left to law enforcement. The committee members who voted for the subpoenas appear to be looking for reasons to persecute eligible voters. That can lead down a dark road to various forms of voter intimidation, from confronting people at the polls to harassment over unpaid fees, like child support or parking tickets.
If the legislature actually wants to improve elections, there is a long list of policy ideas to do that, starting with increased funding for county election offices and changing the law to allow mail and absentee ballots to be counted in advance of Election Day. Leave the job of enforcing the law to local district attorneys.
We entered into this litigation with eyes wide open. We can all see what is happening here in Pennsylvania and around the country. Some elected officials and activists are not hiding their hostility to democracy, and the Senate committee’s highly suspicious election review is another move in their high-stakes chess game. Frankly, this dubious effort is a further attempt to undermine fair, free elections by people who only think electoral outcomes are legitimate when their preferred candidate wins. If they have their way and put their thumbs on the scales to the point of overturning the will of voters, it’s “checkmate” for democracy.
Here at the ACLU of Pennsylvania, we still believe that the law matters, that the constitution matters, and that public officials, including state senators, have a duty to follow it. We hope the court agrees. Democracy demands nothing less.
