Roberta Winters is an active member of her community and a retired public school teacher. She has also been the victim of data breaches twice, once when the school district where she worked was hacked and later when her healthcare system network was breached.
Even before these hacks, she and her husband were victims of identity theft, resulting in the total loss of their financial accounts. Fortunately for Roberta and her husband, their banks restored what they had lost. But the whole experience was disturbing and painful. They have spent dozens of hours working to restore what they have lost in resources and reputation. Her husband testified against the person accused of impersonating him.
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 the subpoenas issued by the operations committee. Intergovernmental Statements of the State Senate for the personal identifying information of the nine million registered voters in the Commonwealth. The committee searches for the names, addresses, dates of birth, driver’s license and non-driver identification numbers of voters, as well as partial Social Security numbers.
Many of these staunch voters challenging the committee’s fishing expedition were victims of various forms of identity theft and financial fraud. The personal data sought by the committee is the key that unlocks a treasure in a person’s life, from their registration on the electoral rolls to banking records and medical information. This is why it is sought after by bad actors and hostile nation states and sells for millions on the dark web. It’s also why institutions that hold this data, like the Pennsylvania State Department, implement high-level security practices to protect it. This is not the kind of information that can just be passed on a whim to some senators and their lawyers and a random entrepreneur in Iowa without any electoral expertise.
While fear of identity theft is a motivator for these voters, they and three advocacy organizations – Common Cause PA, League of Women Voters of PA and Make The Road PA – are challenging the summons to appearing from the committee because there are also important legal principles in stake. The state constitution includes a right to privacy that places limits on the government’s ability to capture our personal information. To get it, the government had better have a very good reason, and this committee does not have one. In court, the senators’ lawyer did not even try to give a reason. They just pretend they’re the government, so they should have it.
The General Assembly itself recognized the importance of protecting this data when it passed a law prohibiting the State Department from disclosing it. The ministry follows the law and the constitution by refusing to disclose the data.
A panel of five judges from the state’s Commonwealth Court is now assessing all of this, having heard oral arguments on December 15, and will soon decide whether or not to quash the subpoenas. The parties to these three joint lawsuits have asked the court to rule on the basis of the documents and arguments in the case, but the court also has the option of ordering an evidentiary hearing, which would include witnesses and experts. An evidentiary hearing would also include discovery, a legal process in which parties to 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 is doing.
The leadership of the Senate is engaged in behavior that endangers democracy, and the tribunal can put an end to it. The chairman of the commission has expressed interest in investigating individual voters. But it is better to leave this work to the police. Committee members who voted for the summons appear to be looking for reasons to persecute eligible voters. This can lead to various forms of voter intimidation, ranging from confronting people at the polls to harassment for unpaid expenses, like child support or parking tickets.
If the legislature is serious about improving elections, there is a long list of policy ideas for doing so, starting with increased funding for county election offices and a change in the law to allow the counting of postal ballots. and postal ballots before election day. Leave the law enforcement work to local prosecutors.
We entered this dispute with our eyes wide open. We can all see what’s going on here in Pennsylvania and around the country. Some elected officials and activists make no secret of their hostility to democracy, and the Senate committee’s highly suspicious scrutiny of the elections is another step in their high-stakes chess game. Frankly, this dubious effort is yet another attempt to undermine free and fair elections by people who only believe election results are legitimate when their favorite candidate wins. If they do what they want and put their thumbs up to the point of overturning the will of the voters, it is “checkmate” for democracy.
Here at the Pennsylvania ACLU, we always believe that the law matters, that the constitution matters, and that public servants, including state senators, have a duty to obey it. We hope the court will agree. Democracy demands nothing less.