Pennsylvania state Sen. Doug Mastriano, R-Franklin, center, speaks to supporters of President Donald Trump as they demonstrate outside the Pennsylvania State Capitol, Saturday, Nov. 7, 2020, in Harrisburg, Pa., after Democrat Joe Biden defeated Trump to become 46th president of the United States. (AP Photo/Julio Cortez)
Democrats in Pennsylvania have derided a highly unusual GOP effort to audit counties’ election processes as a fool’s errand, but there are signs that top Republicans, who control the legislature, are taking it seriously.
Behind-the-scenes talks are ongoing in Harrisburg to figure out how to proceed, GOP Senate sources confirmed to WHYY News.
A number of key Republicans support some kind of audit, but the process for preparing to issue subpoenas for counties’ election data — and preparing for the court case that would almost certainly follow — is complicated.
The audit plan is spearheaded by Sen. Doug Mastriano (R-Adams), one of the legislature’s biggest purveyors of false claims of widespread fraud in the 2020 election.
On July 7, he sent letters to three Pennsylvania counties: rural Tioga in Pennsylvania’s northern tier; York, a more suburban county on the Maryland border; and Philadelphia, coterminous with the commonwealth’s biggest city.
Mastriano wrote that if the counties did not respond by July 31 with a plan to comply with his request, “a subpoena may be issued” by the Senate Intergovernmental Operations Committee, which Mastriano chairs.
Here’s what we know about the audit, and what might happen next.
A copy of one of the letters was provided to WHYY by Philly’s city commissioners. It requested a long list of sensitive election material used in the 2020 election and 2021 primary, including:
So far, Tioga and York Counties have both said they will not be voluntarily turning over any material.
Tioga said the primary reason was that Governor Tom Wolf’s administration had heavily discouraged it. York commissioners added that “there were no indications that the County of York experienced any equipment issues or anomalies during either the General Election of 2020 or the Municipal Primary Election of 2021.”
Both counties are controlled by Republicans.
Philadelphia, which is controlled by Democrats, hasn’t formally responded yet. A spokesman said attorneys for the county are still reviewing the request, but added that it “reiterates claims about the November 2020 election that have been resoundingly rejected by courts,” and that the “repetition of baseless claims by elected officials poses a real challenge to our democratic processes.”
In a statement, Pennsylvania’s Department of State called Mastriano’s plan a “sham review” and encouraged counties to refuse to participate — warning that “if they turn over voting machines or scanners, [counties] should be prepared to replace that brand-new, expensive equipment before any future elections.”
Philadelphia Commissioner Al Schmidt has warned that it could cost as much as $40 million for his city to replace voting machines, programming, and tabulation equipment if it is compromised by a third-party audit.
The state said it would not reimburse costs for machines that have to be replaced, so the other affected counties would likely also be on the hook for millions.
Every state Senate committee has the ability to call hearings and request information, and they can all issue subpoenas if the person or entity holding that information declines to give it.
There are a few things that make Mastriano’s request unusual. His little-used Intergovernmental Operations Committee doesn’t generally deal with election issues — those usually fall under the State Government Committee. And while legislative committees do sometimes issue subpoenas, they’re uncommon and are generally used to get information from the governor’s administration, not from counties.
Because at least two of the counties in question — and likely Philadelphia as well — aren’t planning to hand over information willingly, a subpoena is Mastriano’s only path forward. In order to officially issue one, he needs to call a hearing in his committee, and a majority of its members need to vote on it.
As in all committees, which are assigned members proportional to their party’s share of seats in the chamber, Republicans have significantly more votes in Intergovernmental Operations. Seven of their members sit on it, alongside three Democrats.
A spokeswoman for the Democrats confirmed that while all strenuously oppose an audit, their only real procedural move is making speeches saying as much, which won’t stop Republicans from issuing subpoenas. Senate Democrats did note in a letter they sent to GOP leaders that they think Mastriano is breaking accepted Senate rules by trying to deal with election issues in his committee.
“He is corrupting the committee process and politicizing it for the whims of former President Donald Trump,” they wrote. “Should you allow this to continue, Senator Mastriano will have built a Frankenstein creation of a committee with limitless power, frighteningly controlled by a Senator intent on tainting every level of our government.”
Republicans are the ones who — until the matter hits the courts — have virtually all the power over the situation. And while they’ve been reluctant to say what they plan to do, they’ve indicated that they’re at least open to issuing subpoenas and going all-in on an audit.
The members who sit on the committee have been particularly outspoken about their support for more investigations.
Mastriano is modeling his proposed audit off a contentious one that has been underway for months in Maricopa County, Arizona. Among other things, that audit is leading the Southwest U.S. county to spend millions to replace all the audited machines after being unable to verify the chain of custody during the review.
State Sen. Judy Ward (R-Fulton), who sits on Mastriano’s Intergovernmental Operations Committee and would be one of the senators voting to issue subpoenas, previously partnered with Mastriano on one Arizona-style audit in Pennsylvania.
In December, the two state senators asked officials in rural Fulton County, which is run by Republicans, to allow a vote audit by the same company that audited Arizona: Wake Technology Services Inc.
There was little record of what the company did, and Dominion Voting Systems, which leases the machines Fulton uses, said the county would have to pay for new ones because the company could no longer be sure the machines worked properly. Fulton County officials estimated it would cost at least $2.7 million to replace them.
The Republicans on the Intergovernmental Operations Committee are Mastriano, Senate President Pro Tempore Jake Corman (R-Centre, who serves as a voting member on all Senate committees), Scott Hutchinson (R-Venango), David Argall (R-Berks), Cris Dush (R-Jefferson), Chris Gebhard (R-Lebanon), and Judy Ward (R-Fulton).
If Mastriano decides to call a vote on subpoenas, he will need only six votes to pass them — well within reach if most of the Republicans are on the same page.
Argall, a high-ranking member who chairs the State Government Committee, has vocally supported audits in the past. A staffer confirmed that he remains absolutely interested in conducting one, but said the process for Mastriano’s proposal is still being negotiated.
A staffer for Dush gave a similar response: that the senator wants some kind of audit, but is waiting on more details. Dush was one of the Pennsylvania senators who traveled with Mastriano to Arizona in early June to observe an election audit there.
Gebhard also didn’t respond to WHYY’s request for comment, but he told the Pennsylvania Capital-Star that he’s “excited” for the chance to “deliver clarity, transparency, and help restore faith in our election.”
Hutchinson didn’t respond, and hasn’t addressed the audit publicly. Ward, who was instrumental in the Fulton audit, also didn’t comment.
The final and most powerful member, Corman, didn’t comment either. But in a recent interview he did with TV station ABC23 at an unrelated event, he gave Senate GOP leadership’s most candid answer yet.
“There’s been a lot of questions,” he said. “Certainly, my constituents call me on a regular basis. But there’s also a lot of questions about how an audit can and should be done, if one’s going to be done. And so we’re trying to work a lot of those bugs out. Trying to review what’s going on in Arizona. It’s always sort of good to learn from other states, right?”
Some Democratic leaders have written off the request as unserious.
Lt. Governor John Fetterman, who is also campaigning for U.S. Senate, wrote on Twitter that in light of recent “bizarre, unhinged requests on official letterhead from Pennsylvania electeds” he was formally requesting that the actor Paul Rudd reenact scenes from the movie “I Love You, Man” with him. He called the prospect of Mastriano’s committee being able to subpoena election material “vague and unlikely.”
Others have been less dismissive, but still strongly critical.
Attorney General Josh Shapiro — who is expected to be the 2022 Democratic frontrunner for governor, and therefore a potential Mastriano opponent — looked ahead to potential litigation, and indicated he believes the GOP position would be weak.
“Should subpoenas be issued, you can expect our office to do everything to protect the Commonwealth, its voters and the free, fair election that was held in Pennsylvania,” Shapiro said.
The Pennsylvania Department of State made it clear that it’s also anticipating a tough battle in court.
“We will oppose any attempt to disrupt our electoral process and undermine our elections at every step and with every legal avenue available,” a spokesperson said in a statement.
Acting Secretary of State Veronica Degraffenreid then issued a directive to counties prohibiting them from allowing third parties to audit their voting machines, saying it “undermines chain of custody requirements and strict access limitations necessary to prevent both intentional and inadvertent tampering with electronic voting systems.”
That move prompted a strong response from GOP leaders, who took it as an “attack” on their oversight powers.
“The Legislature has clear authority – both statutorily and constitutionally – to provide oversight and issue subpoenas,” Corman wrote in a statement. “This directive tramples those rights which were specifically put in place to prevent potential abuses and overreach by the Executive Branch.”
He ended with a loosely veiled threat to Degraffenreid, who hasn’t yet been confirmed by the Senate to permanently assume her role.
Calling her directive “deeply partisan,” Corman said it calls into question the acting secretary’s ability to be a neutral arbiter and “will be a key consideration when the Senate considers her nomination in the fall.”
That’s when the Senate is back in session after its summer recess. When they return, their big audit plans will just be one part of a massive to-do list, which includes redrawing the commonwealth’s congressional maps in time for 2022 elections.
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