‘Big lie’ a constant threat
In July, I praised guidance that the Justice Department issued regarding phony election “audits,” such as the one underway in Maricopa County, Ariz. That guidance stated:
“There have been reports, with respect to some of the post-2020 ballot examinations, of proposals to contact individuals face to face to see whether the individuals were qualified voters who had actually voted. … This sort of activity raises concerns regarding potential intimidation of voters. … Jurisdictions that authorize or conduct audits must ensure that the way those reviews are conducted has neither the purpose nor the effect of dissuading qualified citizens from participating in the electoral process. If they do not, the Department will act to ensure that all eligible citizens feel safe in exercising their right to register and cast a ballot in future elections.”
The Justice Department may need to act on that promise soon. Republican lawmakers in Pennsylvania, where President Joe Biden won by more than 80,000 votes, are engaging in an egregious example of voter harassment and intimidation.
The Washington Post reports: “Republican lawmakers in Pennsylvania on Wednesday approved subpoenas for a wide range of data and personal information on voters, advancing a probe of the 2020 election in a key battleground state former President Donald Trump has repeatedly targeted with baseless claims of fraud.” The scope of the Republicans lawmakers’ demands is as stunning as it is unprecedented. They are “seeking the names, dates of birth, driver’s license numbers, last four digits of Social Security numbers, addresses and methods of voting for millions of people who cast ballots in the May primary and the November general election.”
In addition, lawmakers are demanding from Pennsylvania’s Department of State “all guidance issued to counties, as well as communications between the Department of State and county election officials, for the period covering the two votes.”
The state’s law requires the state to maintain voter files available for inspection, but those contain only names, addresses, dates of birth, voting histories (whether a vote was cast) and voting districts. In addition, lawmakers or their party can request “a statewide file of all voters who have requested and returned absentee or mail-in ballots. This list will contain a list of applications that were requested and whether the ballot was mailed or returned to the county board of elections.” Beyond that data, it is far from clear that lawmakers have the power to obtain information such as Social Security numbers (even partial numbers) or driver’s license numbers. Moreover, it is hard to see how this information would be useful, insofar as one cannot tie a specific ballot to a specific voter.
Beyond the data, it is not known what will be done with this information if provided or whether the Pennsylvania GOP will hire a sham group to review it, much like Cyber Ninjas, the conspiracy-theory-minded outfit that Arizona Republicans hired to conduct a fake election audit even though it had no election credentials. (This firm managed to ruin millions of dollars of voting equipment, which must be replaced at taxpayers’ expense.)
“Pennsylvania Republicans watched the circus in Arizona over the last few months with envy and decided to mimic the clown show, but with even more clowns,” Marc Elias, a top Democratic election lawyer who racked up dozens of wins against the former president’s frivolous lawsuits challenging the 2020 election, tells me. “The Republican subpoena in Pennsylvania threatens the privacy of literally ever citizen of Pennsylvania who voted in 2020.” He urges “immediate legal action, whether by the Department of Justice, the commonwealth of Pennsylvania or private lawyers representing organizations of voters.” He concludes, “If we have learned nothing in the last year, it is that the ‘big lie’ is a real and constant threat to our democracy and must be treated as such.”
Pennsylvania Democratic Attorney General Josh Shapiro issued a statement Wednesday deploring the subpoenas. “These subpoenas only highlight how Republican leaders in our Commonwealth continue to try and manufacture controversy out of nothing — instead of a bombshell, the majority of this information is publicly available and doesn’t require force to be compelled,” he said. He then promised to “do everything within our power to protect Pennsylvanians’ personal data.”
If the state does not act, the Justice Department should put Pennsylvania Republicans on notice (as it did with a letter sent to Arizona Republicans). Its guidance laid down the numerous prohibitions against voter intimidation, explaining, “Judicial decisions have established that voter intimidation need not involve physical threats. In certain contexts, suggesting to individuals that they will face adverse social or legal consequences from voting can constitute an impermissible threat.” For example, taking down driver’s license numbers at voter registration meetings has been found to be unlawful.
Voters have every right to be furious about costly, intrusive and nonsensical fishing expeditions organized by Republicans to substantiate the “big lie.” Pennsylvanians can vote out lawmakers who abuse their power, but state and federal officials have a separate and critical obligation to end this frenzy of postelection harassment. Now would be a good time to stand up to Republican bullies.