Commonwealth v. Dush (consolidated as Costa v. Corman)
Case Summary
In September 2021, the Pennsylvania Senate’s Intergovernmental Operations Committee issued a subpoena requesting personal information, including the names, addresses, and the last four digits of the Social Security numbers, of every registered voter in Pennsylvania since May 1, 2021. LWV Pennsylvania and partners moved to intervene on behalf of voters, seeking to protect privacy rights and voters’ personal information.
On September 15, 2021, the Pennsylvania Senate’s Intergovernmental Operations Committee (“committee") issued a subpoena to the Pennsylvania Department of State requesting, among other information, a “complete list containing the name, date of birth, driver’s license number, last four digits of Social Security number, address and date of last voting activity of all registered voters within the Commonwealth of Pennsylvania as of May 1, 2021, by County.”
The Pennsylvania Department of State declined to fully comply with the subpoena, instead agreeing to produce non-privileged, non-protected information responsive to some of the requests. The Department of State and Attorney General objected to producing a complete list of registered voters and their personal information.
The Pennsylvania Senate Democratic Caucus filed a lawsuit on September 17, 2021, seeking a court order forbidding enforcement of the subpoena, among other relief. The Committee also filed a separate lawsuit seeking a court order requiring production of all the information requested in the subpoena.
The League of Women Voters of Pennsylvania (LWV Pennsylvania), Common Cause Pennsylvania, Make the Road Pennsylvania and several individual Pennsylvania voters moved to intervene in the Democratic Caucus’s litigation on October 4, 2021. The court granted the League’s application on October 10, 2021.
The League is represented by the ACLU of Pennsylvania, ACLU Foundation, Schnader Harrison Segal and Lewis, LLP, and Whiteford, Taylor and Preston, LLP.
LWV Timeline
Pennsylvania Senate Committee issues subpoena for voter records
The Pennsylvania Senate Intergovernmental Operations Committee issued a subpoena to the Secretary of the Commonwealth requesting, among other information, a “complete list containing the name, date of birth, driver’s license number, last four digits of Social Security number, address and date of last voting activity of all registered voters within the Commonwealth of Pennsylvania as of May 1, 2021, by County.”
Pennsylvania Senate Democrats file lawsuit
Members of the Pennsylvania Senate Democratic Caucus, including Minority Leader Jay Costa, file a lawsuit in the Commonwealth Court of Pennsylvania, seeking an order declaring the subpoena for voter records unconstitutional under the separation of powers, illegal under the state’s election laws and forbidding any enforcement of the subpoena for voter information, among other relief.
LWV Pennsylvania moves to intervene
LWV Pennsylvania and Common Cause Pennsylvania, move to intervene in a lawsuit brought by then-Pennsylvania Attorney General Josh Shapiro against the defendants, Commonwealth v. Dush. The court consolidated this case with several other cases contesting the subpoena, with Costa v. Corman being the lead case.
Court grants intervention
The court grants LWV Pennsylvania’s application to intervene on behalf of its members and voters.
Court denies parties’ motions for summary relief
The court denies several motions for summary relief (summary judgment) from both defendants and plaintiffs, finding material factual disputes about the subpoena’s legislative purposes, federal law on certain critical infrastructure information, and privacy rights under state law weighed against granting such relief.
Court orders briefing on its jurisdiction
The court orders the parties to submit briefs on whether the case is ripe for adjudication and if it possesses the jurisdiction to grant relief.
Court hears oral arguments
Court dismisses cases
In a 2-1 vote, a panel of the Commonwealth Court dismisses the case, ruling the case is not ripe for adjudication, as the committee had not taken any steps to enforce the subpoena through the legislative process, including holding the Secretary of the Commonwealth in contempt. The court’s opinion states that should the committee attempt to enforce the subpoena, the secretary could then contest it in court. Until then, according to the court, the separation of powers favors not hearing the case.
LWV Pennsylvania files application for rehearing
LWV Pennsylvania and partners move for rehearing by a panel of seven judges, seeking to overturn the dismissal of the case. The application argues that (1) the petitioners have no option but litigation to protect their personal information from wrongful disclosure; (2) the Pennsylvania constitution’s guarantee of privacy rights requires courts to hear challenges to government disclosure of personal information before they occur, and; (3) that the panel misapplied the case law it cited by interpreting it narrowly.
Commonwealth court denies application for rehearing
The commonwealth court denies the petition for rehearing in a per curiam order. The League and its partners appeal to the Pennsylvania supreme court.
LWV Pennsylvania appeals to Pennsylvania supreme court
LWV Pennsylvania and partners request the state supreme court reverse the commonwealth court's dismissal. The League argues that by dismissing the case, the commonwealth court (1) failed to balance voters' interests against the committee's interests, (2) left voters without a remedy to protect their privacy, and (3) wrongly decided the case was not ripe for review, despite voters having no other solution to protect their privacy from the subpoena.