Received 1/22/2022 5:26:35 PM Supreme Court Middle District

IN THE SUPREME COURT OF PENNSYLVANIA

COUNTY OF FULTON, :
FULTON COUNTY BOARD :
OF ELECTIONS, STUART L. : No.: 3 MAP 2022
ULSH, in his official capacity as :
County Commissioner of Fulton :
County and in his capacity as a :
resident, taxpayer and elector in :
Fulton County, and RANDY H. :
BUNCH, in his official capacity :
as County Commissioner of :
Fulton County and in his capacity :
as a resident, taxpayer and elector :
of Fulton County, :
:
Petitioners/Appellees, :
:
v. :
:
SECRETARY OF THE :
COMMONWEALTH, :
:
Respondent/Appellant. :

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF BY

SENATE PRESIDENT PRO TEMPORE JACOB CORMAN, III AND
SENATOR CRIS DUSH

Proposed amicus curiae Senate President Pro Tempore Jacob

Corman, III and Senator Cris Dush submit this application for leave to file

amicus curiae brief in support of Fulton County’s opposition to the

Secretary’s Emergency Application to Stay. The proposed brief, attached

hereto as Exhibit 1, is necessary to address several issues of core

constitutional concern for Senators Corman and Dush; chiefly, the

encroachment upon the General Assembly’s power to conduct legislative

investigations in furtherance of potential legislation. While this proposed

amicus curiae brief is submitted after the Secretary’s Application and

Fulton County’s response, given the importance of the issues presented,

Senators Corman and Dush request that the Court accept the brief as if it

were timely filed.

Accordingly, Senator Corman respectfully requests that, in disposing

of the Secretary’s pending Emergency Application to Stay, the Court grant

this application and consider the brief attached hereto.

Respectfully submitted,

Dated: January 22, 2022 s/ Matthew H. Haverstick

Matthew H. Haverstick (No. 85072)
Joshua J. Voss (No. 306853)
KLEINBARD LLC
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Ph: (215) 568-2000
Fax: (215) 568-0140
Eml: [email protected]
[email protected]

Attorneys for Senate President Pro

Tempore Jacob Corman, III and
Senator Cris Dush

2
Exhibit 1
 IN THE SUPREME COURT OF PENNSYLVANIA

COUNTY OF FULTON, :
FULTON COUNTY BOARD :
OF ELECTIONS, STUART L. : No.: 3 MAP 2022
ULSH, in his official capacity as :
County Commissioner of Fulton :
County and in his capacity as a :
resident, taxpayer and elector in :
Fulton County, and RANDY H. :
BUNCH, in his official capacity :
as County Commissioner of :
Fulton County and in his capacity :
as a resident, taxpayer and elector :
of Fulton County, :
:
Petitioners/Appellees, :
:
v. :
:
SECRETARY OF THE :
COMMONWEALTH, :
:
Respondent/Appellant. :

BRIEF FOR AMICUS CURIAE SENATE PRESIDENT PRO

TEMPORE JACOB CORMAN, III AND SENATOR CRIS DUSH
 TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................1

II. STATEMENT OF INTEREST ...............................................................1

III. ARGUMENT ........................................................................................ 3

IV. CONCLUSION ……………………………………………………………………………6

i
 TABLE OF AUTHORITIES

RULES

Pa.R.A.P. 531 .............................................................................................. 3

CONSTITUTIONAL PROVISIONS

Pa. Const. Art. II, § 1 ................................................................................... 3

CASES

Corman v. Acting Secretary of Pennsylvania Department of Health, —

A.3d —, 2021 WL 6071796 (Pa. 2021). ..................................................... 6

ii
I. INTRODUCTION

In this and other cases, the Secretary of the Commonwealth has taken

umbrage at the data a Senate Committee needs to perform an investigation

as part of the legislative function. Here, as elsewhere, the repeated refrain

from the Secretary to the Senate is, “Why do you want that information?”

Of course, this is not the proper question in challenging legislative

authority. The correct analysis for the Secretary, and this Court, instanter is

whether the Senate, or its constituent parts, has the authority under law to

request data and information to form legislation – and particular to this

matter, to make logical forensic images of the hard drives of voting

machines no longer in active use in Fulton County. Because the answer to

that proper question is yes, Senate President Pro Tempore Jacob Corman

III and Senator Cris Dush ask the Court to deny the Secretary’s Emergency

Application to Stay.

II. STATEMENT OF INTEREST

Respondent Jacob Corman, III is a duly elected Pennsylvania Senator

serving the 34th Senatorial District and Senate President Pro Tempore. He

is an ex-officio member of the Senate Intergovernmental Operations

Committee. As President Pro Tempore, Senator Corman is responsible for

appointing the Chair and members of the Senate’s standing committees in

1
addition to having direction over the duties of the Secretary-

Parliamentarian, pursuant to Senate Rules 5(a)(1) and 6(b).

Senator Cris Dush is a duly elected Pennsylvania Senator serving the

25th Senatorial District. He was recently appointed to replace Senator Doug

Mastriano as the Majority Chair of the Senate Intergovernmental

Operations Committee (the “Committee”) by Respondent Jacob Corman

pursuant to his authority as Senate President Pro Tempore.

In turn, the Committee has begun an investigation of election

processes for purpose of potentially amending the Election Code,

particularly as they related to the implementation of recent changes to the

Code which expanded the availability of mail-in voting and their impact on

pre-existing election practices. To that end, the Committee issued a

subpoena to the Department of State seeking documents and data

maintained by the Department relative to voter registration records and

instructions issued on a myriad of election matters. Chairman Dush also

separately requested, from Fulton County, logical forensic images of the

hard drives of several Dominion voting machines that are the subject of the

above-captioned matter; these voting machines were a part of the recent

election changes. It is this latter request that generated the Secretary’s

Emergency Application to Stay.

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 Together, Senators Corman and Dush have an interest in both formal

and informal informational requests made by a legislative committee.

Particularly, Senator Dush as chairman and Senator Corman, as an ex -

officio member have an interest in the Committee receiving access to all

information and data that they, in their legislative judgment, believe may

be relevant or pertinent to the Committee’s investigation.

This amicus curiae brief is submitted to protect the foregoing

interests. No person or entity other than Senators Corman and Dush or his

counsel paid in whole or in part for this brief, nor authored it in whole or in

part. See Pa.R.A.P. 531(b)(2).

III. ARGUMENT

Senators Corman and Dush raise three points for the Court’s

consideration:

First, a primary concern of the Secretary seems to be the supposed

lack of formality in the request from Senator Dush, as Chairman of the

Committee, for access to the Dominion voting machines in Fulton County.

The Secretary ignores the long-standing, effective legislative practice of

informal requests from Majority and Minority committee chairs – and even

committee members – to obtain information from appropriate sources

consistent with their committee functions. This time-honored,

3
straightforward means of allowing Senators and Senate committees to

acquire information and data necessary to legislate has never been

particularly controversial and certainly not subject to objection by the

Secretary or any other individual or entity. Such requests are regularly

accepted and by any number of governmental and private entities and

individuals. Indeed, the Secretary recently argued (in Costa v. Corman) that

the Committee’s resort to a subpoena (i.e., formal process) was

inappropriate because the Committee had less formal means at its disposal

to acquire some of the information.

Accepting the Secretary’s new position on informal requests now

would have practical impacts on both the legislative and judicial branches.

On the legislative side, any suggestion that only subpoenas are legitimate

requests for information from legislative committees would frustrate and

prolong the legislative process, requiring that committees meet and vote to

issue subpoenas requesting records. Meetings require advance notice and

publication, coordination of member schedules, and the expenditure of

sometimes significant public funds that would not be required of an

informal request. On the judicial side, the dockets have the potential to

become choked with enforcement, quashal, and contempt proceedings if

legislative subpoenas become the norm, as the normal ebb and flow of

4
negotiated informal information production between the Legislative and

Executive departments (or private entities and individuals) is shut off. Such

a decision therefore runs contrary to legitimate interests including

government and judicial efficiency.

Second, the Secretary makes much of Directive 1 of 2021, whereby the

Department of State arrogated to itself the power to control what counties

can do with electronic voting machines. But Directive 1, and the supposed

problem it is designed to solve, isn’t applicable to Senator Dush’s request.

Directive 1 prohibits counties from making their voting machines accessible

to third parties for inspection, and provides that violation of a county’s

nondisclosure obligation will result in the machine’s decertification – and

the Department is absolved of any obligation to reimburse the county for

the cost of new machines to replace those that were decertified. That

concern is inapplicable to this situation, however. Here, Senator Dush has

asked to image the hard drives of already decertified voting machines that

will not be used in future elections. Thus, the Secretary’s assertion that

Directive 1 justifies overriding Senator Dush’s request for the hard drive

images of already inspected and decertified voting machines is of no note.

Finally, the Secretary demands the right to know why Senator Dush

and the Committee want data from the Dominion hard drives, and how the

5
data will be reviewed, as a predicate to allowing the hard drives to even be

imaged (that is, copied). Underscoring this demand is the notion that the

General Assembly, and in this case a Senate Committee, has to justify its

purpose in investigating public policy matters before the Department will

cooperate. As this Court recently acknowledged, though, “it is not [this

Court’s] prerogative to substitute our views for those of the policy-making

branches of our Commonwealth's government.” Corman v. Acting

Secretary of Pennsylvania Department of Health, — A.3d —, 2021 WL

6071796, at *26 (Pa. 2021). In short, because the Committee already has

met the minimal burden required to demonstrate a legislative purpose for

the election investigation and corresponding data requests in Costa v.

Corman, further inquiry into why the Committee desires any particular

piece of information should not be countenanced as anything more than a

request that this Court opine on the policy choices made by the Committee.1

IV. CONCLUSION

The Secretary’s high-minded talk of election security and dark

conspiracies hides a low-minded political power play. For political theater,

and to the detriment of the Pennsylvania Constitution, the Secretary wants

1The Committee’s interest in the Fulton County voting machines is manifest in any
event - Fulton County Commissioner Ulsh testified before the Committee on the
subject of the voting machines and Fulton County’s litigation.
6
this Court to be complicit in the Executive Branch’s disregard of the

Legislature. But this Court respects the balance between the branches of

government, and therefore the Secretary’s Emergency Application should

be denied.

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 Respectfully submitted,

Dated: January 22, 2022 s/ Matthew H. Haverstick

Matthew H. Haverstick (No. 85072)
Joshua J. Voss (No. 306853)

KLEINBARD LLC
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Ph: (215) 568-2000
Fax: (215) 568-0140
Eml: [email protected]
[email protected]

Attorneys for Senate President Pro

Tempore Jacob Corman, III and
Senator Cris Dush

8
 WORD COUNT CERTIFICATION

I hereby certify that the above principal brief complies with the word

count limits of Pa.R.A.P. 531(b)(3). Based on the word count feature of the

word processing system used to prepare this brief, this document contains

1572 words, exclusive of the cover page, tables, and the signature block.

Dated: January 22, 2022 s/ Matthew H. Haverstick

Matthew H. Haverstick (No. 85072)
Joshua J. Voss (No. 306853)
KLEINBARD LLC
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Ph: (215) 568-2000
Fax: (215) 568-0140
Eml: [email protected]
[email protected]

Attorneys for Senate President Pro

Tempore Jacob Corman, III and
Senator Cris Dush