PHILADELPHIA — Republicans who control the Pennsylvania Senate began in September 2021 what they’re calling a “forensic investigation” of the 2020 election more than 10 months later.
The partisan effort was controversial even before it began, following months of former President Donald Trump’s lies about a stolen election and calls to investigate the results.
The Senate Republican leader has described the review as a top priority, and in September a GOP-led panel voted to subpoena millions of voters’ personal information and records from Gov. Tom Wolf’s administration. The Senate is planning to hire a contractor, and the review could last for months.
Joe Biden won Pennsylvania by more than 80,000 votes, almost double the margin by which Trump carried the state in 2016. Extensive litigation and post-election audits turned up no evidence of widespread fraud, a finding affirmed by Trump’s own attorney general.
Lots of questions about how the investigation will work remain unanswered. Here’s what we know — and don’t know — about it.
What’s an election audit?
Elections are complex and never perfect, and audits are one way officials verify the legitimacy of the results, identify issues, and improve the electoral system. Generally speaking, election audits focus on one of two things: checking the results to confirm whether votes were tallied accurately, or reviewing how the election was run, including what policies and procedures were followed.
Audits can help identify issues with or weaknesses in the system, with the goal of determining whether things were run well enough that the election was free and fair — and the votes accurately tallied so the winner was certified correctly.
A recount, for example, can be considered a type of audit, checking the accuracy of the vote count.
“The reason why you perform an audit in the first place is you want to have confidence in the outcome,” said Trey Grayson, a Republican and Kentucky’s former top elections official.
Republicans are calling this a ‘forensic audit’ or ‘forensic investigation.’ What does that mean?
Professional election experts sometimes conduct such reviews to make sure voting systems work as they should. For example, shortly after the 2020 election, a county board of supervisors in Arizona hired auditors to ensure voting machines weren’t infected with malicious software and that tabulators weren’t connected to the internet.
But the phrase “forensic audit” really took off after the Arizona Senate launched yet another probe in late 2020 and hired a contractor with no previous experience auditing elections to review all 2.1 million ballots cast in Maricopa County and inspect machines. That review was widely discredited by professionals, but it became a rallying cry for Trump supporters.
Pennsylvania Senate President Pro Tempore Jake Corman, R-Centre, says he’s not an expert on what constitutes a “forensic” review.
“That’s somehow become a political term. I’m not sure what forensic — I’m not an expert,” he said in September. “What we’re going to do is an investigation, right? Perception is reality. … You know, there are hundreds of thousands if not millions of Pennsylvanians that have had concerns about the way the last election went.”
Will the ‘forensic audit’ follow best practices?
We don’t know yet. It’s not clear what, exactly, the review will entail or how it will work. We know there will be hearings, and Republicans issued a subpoena (see below).
There are various methods of reviewing elections, but there are also best practices for things like preserving the chain of custody of sensitive materials.
Best practices for post-election audits include that they are routine and happen shortly after elections, using specified procedures, said Mark Lindeman, a director at Verified Voting, a nonprofit that focuses on the role of technology in election administration.
“What’s extraordinary about what’s increasingly happening around the country — and the sort of bandwagon that Pennsylvania seems to be climbing on — is it’s not routine, there are no defined procedures, and even the objectives, beyond airing grievances and paranoid fantasies about the 2020 election, are radically unclear,” he said.
Didn’t Pennsylvania already audit the election results?
Yes. State law requires Pennsylvania counties to review a random sample of at least 2% of all ballots or 2,000 ballots, whichever is fewer, to check whether they were tallied correctly. Those audits were completed last year before the Pennsylvania secretary of state certified Joe Biden’s victory, and they were accessible to the public.
In addition, 63 of the state’s 67 counties participated in what’s known as a “risk-limiting” audit, a gold-standard method in which election workers hand recount a random sample of ballots and compare the tabulations to the overall vote count recorded by machines.
The audit of more than 45,000 randomly selected ballots was completed in February. The sample matched the certified results within a fraction of 1 percentage point, further confirming the election’s accuracy.
“If people are concerned about machines, there’s no better way to address those concerns than to look at actual ballots, which is exactly what the risk-limiting audit pilot did,” Lindeman said. “And it confirmed the substantial accuracy of the machines.”
Grayson said it’s too late to conduct a new audit.
“One of the most important things is to do it at the right time,” he said. “The election has been certified. There’s really nothing that can be done right now.”
Why are Republicans doing this?
They say their constituents have concerns about the election. Trump and his supporters have also publicly pressured GOP leaders to undertake an Arizona-style “forensic investigation.”
“My constituents, I say this all the time, have been outraged. … Their questions have gone unanswered,” state Sen. Judy Ward, R-Blair, said in September. “They want us to look at the process. It is paramount to our democratic process. We must restore their trust and the trust of all Pennsylvanians.”
But Republican voters’ concerns about the election have largely been fueled by Trump’s lies about it being somehow rigged or otherwise illegitimate. And his supporters are a potent political force on the right, turning baseless election conspiracy theories into mainstream political issues.
It’s trickled down to the local level. Kathy Barnette, an unsuccessful GOP congressional candidate from Montgomery County, spent months hunting for voter fraud in the Philadelphia suburbs. Now she’s running for U.S. Senate. And a small town in the Lehigh Valley illegally tried to ban mail voting, an effort led by a township supervisor who attended Trump’s Jan. 6 rally in Washington that preceded the deadly Capitol riot.
What are the stated objectives?
Republicans say they are performing their legislative oversight function and want to find out if anything went wrong, improve state law, and restore voters’ confidence in the process.
“One of two things will happen,” Corman said during a September hearing. “Either we will find things where we can better improve our laws, or we will find nothing, and that will then dispel a lot of people’s concerns, and we all can be more confident in our system moving forward.”
Are they trying to overturn the election?
That’s what Democrats accuse them of, saying the entire review is a continuation of efforts to overturn the results, including the flood of post-election lawsuits, efforts to stop the certification of election results, and the Jan. 6 insurrection.
Some Trump supporters may very well hope to overturn the results: Trump himself has repeatedly said he won in Pennsylvania, and in September he sent a letter to Georgia’s secretary of state asking for an investigation of election allegations “and, if true … start the process of decertifying the election, or whatever the correct legal remedy is, and announce the true winner.”
And state Sen. Gene Yaw, R-Lycoming, said in August that many “audit” supporters have told him they believe “that Donald Trump will somehow be reinstated as president.”
“That is the underlying rationale for many who support an audit,” Yaw said. “Unless there is a coup, which is not going to happen in the United States, the 2020 election is over.”
State Sen. Cris Dush, R-Jefferson, the lawmaker Corman assigned to lead the review, said at the first hearing that the effort has nothing to do with overturning results.
“This investigation is not about overturning the results of any election, as some would suggest,” he said. “That horse is out of the barn, as far as this investigation is concerned.”
Why are they just starting now?
It’s been a rocky road to this point. Republican leaders started the year by holding hearings on the election process, inviting testimony from experts, county officials and others. Corman formed a “Special Committee on Election Integrity and Reform” to review election procedures and recommend ways to improve the law.
Another committee wrote a major piece of legislation, House Bill 1300, that would have made top-to-bottom changes. That bill passed the legislature in June and was vetoed by Gov. Tom Wolf, a Democrat, who said its stricter voter ID rules would make it harder to vote.
Then in July, state Sen. Doug Mastriano — a Franklin County Republican who’s considering running for governor in 2022 — wrote letters to three counties demanding they turn over virtually all election-related equipment and materials.
The counties declined to cooperate and Mastriano prepared to convene the committee he chaired to issue subpoenas for the materials.
But in late August, Corman stripped Mastriano of his leadership position and transferred his Capitol staff to other duties, accusing Mastriano of political grandstanding.
Corman, an institutionalist who’d previously kept an arm’s length from his caucus’s pro-Trump wing, had come under pressure from Trump.
“Why is State Senator Jake Corman of Pennsylvania fighting so hard that there not be a Forensic Audit of the 2020 Presidential Election Scam?” Trump said in a June statement. “Corman is fighting as though he were a Radical Left Democrat.”
Republican activists in Corman’s district were growing upset with the senator, who is up for reelection in 2022.
When Corman ousted Mastriano, he committed to a “full forensic investigation” and tapped Dush to take the reins. They effectively started from scratch.
Is Mastriano still involved?
Yes. He’s no longer the chair, but he’s still a member of the Intergovernmental Operations Committee, which is undertaking the review. That means he can still participate, such as by asking questions in the hearings and by taking votes. For example, he was part of the party-line vote to subpoena the Pennsylvania Department of State.
How will the review work?
A lot is still unknown about the review, in part because of the messy way it started, its sudden speed, and the lack of general agreement about what the goals and processes are.
Details so far have largely become known as they’re decided in real time.
Who’s involved in the review?
We don’t yet know everyone who will be involved.
On the legislative side, the Senate Intergovernmental Operations Committee is the vehicle for the review. Dush, as the new chair, is leading the effort with Corman’s backing.
But they’ve said the actual work of conducting the investigation will be outsourced to a contractor, and they hadn’t yet hired a firm in late September. Dush said he’s in the process of interviewing contractors. He also said he’s considering hiring outside counsel.
What kind of firm will Republicans hire?
Corman said the Senate plans to hire a contractor with “investigative abilities.” Asked whether he intends to hire one with prior experience auditing elections, Corman suggested that wasn’t a determining factor.
“I don’t know how much experience is out there for auditing elections, right?” he said. “I don’t know there’s a lot that has been done over time.” Corman added that staff have asked vendors about their understanding of the election process, “and clearly, that will be a key component of who we hire.”
The U.S. Election Assistance Commission — created by a 2002 federal law — accredits independent laboratories to test voting systems.
What’s the scope of the review?
We don’t know yet. Mastriano had sought to obtain essentially all election materials and records, including ballots and voting equipment, from three counties, including Philadelphia. So far, the committee under Dush has focused its efforts on the Department of State, which oversees elections. It may look later at counties, which actually run elections.
According to the website Republicans set up for the review, the contractor will also help determine its bounds: “Conversations are ongoing with different vendors to determine the size and scope of the investigation.”
Are Republicans looking at ballots and voting machines?
They haven’t decided yet, but Corman and Dush have both expressed interest.
Corman has said he wants to obtain voting machines and ballots, which are administered by counties.
“I’m not putting a scope on it,” he said when asked whether the Senate will seek records from counties.
“I think there’s clearly some issues we’ll want to deal with with the counties,” he told The Inquirer. “We’ll cross that bridge when we get there.”
In a Sept. 7 interview with a conservative activist, Dush said: “We’re going to be issuing subpoenas to go in and take a look at — examine the ballots, and very possibly the machines. I have a feeling we’re going to be looking at the machines.”
Who’s paying for it?
Taxpayers. The Arizona review has drawn criticism in part because it was largely funded by pro-Trump groups, and Corman said he wants the Pennsylvania inquiry to have credibility.
“We didn’t want outside sources, when we talked about this, paying for this, because you know, Republicans wouldn’t like it if George Soros was funding investigations, right?” Corman said, referring to the billionaire philanthropist and supporter of liberal causes. “Nor should Democrats like it if people with partisan leanings are paying for this on the outside.”
How much will it cost?
We don’t know. Dush said during a Sept. 15 hearing that the funds would come from the Senate’s budget. He declined to give an estimate.
What have lawmakers done so far?
The GOP-led Senate Intergovernmental Operations Committee voted, 7-4 along party lines, to subpoena the Department of State for various voter election records.
What is the subpoena?
It seeks lists of all registered voters and nonpublic information such as voters’ driver’s license and partial Social Security numbers, as well as publicly available records like dates of birth and addresses.
It also requests information about whether voters cast ballots in person or by mail both in the 2020 general election and in the May 2021 primary election; all changes to voter records between May 2020 and May 2021; communications between state and county elections officials during that same time period; guidance and directives regarding the administration of elections; and training materials for election workers.
The subpoena was delivered Sept. 15, hours after the committee voted to approve it. It set a deadline of 4 p.m. Oct. 1, giving the Department of State 16 days to provide the requested records.
Why do Republicans want that information?
They say the voter records will help determine whether there was any fraud. “There have been questions regarding the validity of people … who have voted, whether or not they exist,” Dush said during the opening hearing. “We’re not responding to proven allegations. We are investigating the allegations to determine whether or not they are factual.”
Corman said in the interview: “That’s where you get to the bottom of whether there was any fraud: Who showed up to vote, and were they properly registered to vote?”
Republicans have also been sharply critical of the Wolf administration’s pre-election guidance to county elections officials, and the subpoena seeks records that could turn up more information about that.
What do experts say?
Maintaining accurate voter rolls is important, said Grayson, the former Kentucky secretary of state. “We all should want only the people who are legally eligible to vote, to vote.”
But Pennsylvania Republicans’ request is unusual, he said.
“I would be concerned about this type of review,” Grayson said. “It doesn’t strike me as an appropriate way to accomplish the goal of list maintenance.”
He noted that Pennsylvania is a member of the Electronic Registration Information Center (ERIC), a nonprofit consortium of 30 states and the District of Columbia that share registration and motor vehicle data to help improve voter roll accuracy.
Sarah Walker, executive director of the nonprofit Secure Democracy, said the review could intimidate voters in the future and “have a ripple effect on voters’ desire to participate.”
Republicans haven’t requested individual ballots — and the state constitution protects ballot secrecy — but their request runs against the principle enshrined in those protections, Walker said.
“One of those sacred traditions of our democracy has been a private ballot,” she said. “And what’s happening in Pennsylvania is not only unprecedented from an elections administration perspective but it’s also unprecedented in terms of the lack of privacy, and sort of chipping away at that sacred tradition.”
Are there any security risks?
Yes, says Will Adler, senior technologist for elections & democracy at the nonprofit Center for Democracy and Technology.
Most of the records requested in the subpoena are publicly available, but partial Social Security numbers and driver’s license numbers are not. “The data is not only sensitive in general — it is specifically sensitive for elections,” Adler said in an email. “A bad actor in possession of the information requested here (such as driver license numbers and last four digits of SSNs linked to other voter information), would probably be able to initiate new voter registrations or even changes to existing voter registrations.”
Adler said this would not only create headaches for elections administrators but also, at worst, “result in voter fraud or make it harder for legitimate voters to vote.”
If Pennsylvania lawmakers follow their counterparts in Arizona and hire “incompetent firms who don’t protect the data or equipment, this could be a real risk,” Adler said. “And then an investigation ostensibly about improving election integrity would itself become a threat to election integrity.”
Lindeman added: “I don’t see a public policy purpose for a private contractor to have their hands on all that private information. … You can do serious economic harm to people using that information. So you better have bloody good reasons to demand it. They haven’t made a persuasive case.”
Republicans said they’ll ensure the security of voter data, including by limiting access to it.
“Every measure is being taken to ensure voter data does not fall into the wrong hands. The information will be stored securely and only made available for the purposes of the investigation,” the investigation’s website reads. “In addition, any third-party vendor personnel will be required to sign a non-disclosure agreement to protect this information under penalty of law.”
What are Republicans going to do with the records?
That remains to be seen, but Republicans say they are planning to hire a contractor to assist with their review. Asked by a Democratic senator if the vendor would have “complete access” to the records, Dush said, “Potentially, yes.”
“That will be part of the discussion I will be having with our legal team, as to what specifically will be given,” he said.
Corman said any vendor personnel will be required to sign nondisclosure agreements “to make sure the data are protected under penalty of law.”
Is the subpoena legal?
We’ll find out. Senate Democrats filed a lawsuit arguing that the subpoena violates state election law protecting voters’ private information.
They also argue that the investigation itself is unconstitutional because it violates the separation of powers: Courts have the power to investigate and rule on election disputes, and the executive branch, particularly the independently elected state auditor general, has the power to audit how elections are run. So the lawsuit seeks to not only block the subpoena but the entire investigation.
Will they find out who I voted for?
No. Ballot secrecy is enshrined in the state constitution, and the ballots themselves are anonymous, with no identifying markers on them. In the case of mail ballots, for example, there should be no way to connect a specific anonymous ballot with the envelopes it arrived in.
Is this similar to the Arizona review?
Arizona launched its review in December 2020, and Cyber Ninjas, a firm Republicans there hired, still haven’t made all their findings public. It remains to be seen whether Pennsylvania will follow the same path.
Dush traveled to Arizona in June with Mastriano to get a firsthand look at the partisan “audit” there — a trip Trump praised.
Corman has said he has spoken with the leaders of the Arizona Senate.
He told The Philadelphia Inquirer the review in Harrisburg is “Pennsylvania-specific.”
“I’m not looking to Arizona,” he said. “If we learn some things after they’re completed, that might be helpful, we’ll certainly find out.”
What happened in Arizona?
The Arizona Senate focused exclusively on Maricopa County, the state’s largest county and home to Phoenix. It subpoenaed all 2.1 million ballots and voting machines, which the county says it is replacing because of security risks posed by the access granted to a third-party contractor.
The Senate hired a Florida-based cybersecurity company called Cyber Ninjas, which had no previous experience auditing elections and whose CEO had promoted Trump’s false claims of a stolen election.
Why was the Arizona review controversial?
Cyber Ninjas and various subcontractors started their review in April, and they still hadn’t made all their findings public by late September. At one point the “auditors” chased QAnon-linked conspiracy theories. The probe’s funding and operations were largely shrouded in secrecy, though it eventually emerged that pro-Trump groups covered the bulk of the cost.
“In contrast to official procedures in Arizona and best practices around the country, the Cyber Ninjas review suffers from a variety of maladies: uncompetitive contracting, a lack of impartiality and partisan balance, a faulty ballot review process, inconsistency in procedures, an unacceptably high level of error built into the process, and insufficient security,” concluded a June report written by Grayson and Barry C. Burden, professor of political science and director of the Elections Research Center at the University of Wisconsin-Madison.
“A general lack of transparency and communication also makes it difficult to evaluate the review fully as one would an official recount or audit, and it undermines rather than establishes confidence in the election system and the review itself.”
How is this different from previous legislative reviews of the 2020 election?
Four committees set up by the legislature already have responsibility for reviewing Pennsylvania’s election system, including the 2020 election specifically, and already held hearings.
Two of the panels, the House State Government Committee and Senate State Government Committee, have broad responsibility for issues of state government, including elections. It’s where election-related legislation is usually handled. Corman also created a special committee for the specific purpose of reviewing the election and recommending changes to state law. And the legislature last year also set up the Election Law Advisory Board, which is tasked with regularly reviewing the election system and making recommendations.
Several of the things Republican lawmakers say they want to look at with the new review have already been examined by the other committees. For example, the first hearing was ostensibly about the Pennsylvania Department of State’s election guidance to counties. Kathy Boockvar, the secretary of state at the time of the election, testified for nearly three hours on the topic in January before the House State Government Committee.
Corman said the goal of the earlier Senate hearings was to “get legislation passed.”
“It was basically trying to find best practices around the country. So look at, maybe some of our shortcomings. And then try to put a piece of legislation — which I think we did — that would have improved our system as well.”
“But it was not specific as far as an investigation into the 2020 election, or 2021 primary, which had its own set of problems,” Corman said in the interview. “So this is more specific towards getting into the performance at the Department of State and where our shortcomings may be.”