Federal Appeals Court to Decide Public Disclosure Limits in Noncitizen Election Law Case

Police officers on horseback patrol in front of the Pennsylvania Capitol Building in Harrisburg, Pa., on Jan. 17, 2021. Mark Makela/Getty Images

The U.S. Court of Appeals for the Third Circuit in Philadelphia will soon determine how much the public is entitled to know about noncitizens voting in the Commonwealth of Pennsylvania.

Oral arguments took place on Sept. 11 over a summary judgment issued in March 2022 by the U.S. District Court for the Middle District of Pennsylvania that allowed the commonwealth to withhold from the public certain data pertaining to the identification and removal procedures of noncitizens from the voter rolls.

According to the appeals filed by the Public Interest Legal Foundation (PILF) late last year, state election officials in 2017 publicly admitted to the Pennsylvania General Assembly that non-U.S. citizens had for decades been registered to vote by the Department of Transportation.

Officials attributed the problem to a “computer glitch.”

Not long after acknowledging the problem, then-acting Secretary of State Robert Torres conducted an analysis comparing voter registration records with Transportation Department records.

The study discovered that approximately 100,000 registered voters “may potentially be non-citizens or may have been non-citizens at some point in time.”

Shortly after the disclosure, then-Philadelphia City Commissioner Al Schmidt called for full transparency from the Department of State and the release of its findings to county election boards so they could investigate and remove the noncitizens from the voter rolls, the plaintiffs said.

248 Noncitizens Voted

Another statewide study that was then conducted found that 1,160 noncitizens had requested county officials cancel their registrations. Of them, 248 had voted in at least one election, according to the plaintiffs.

The statistics cited in the PILF appeal are all official State Department data.

Schmidt, who has since become the secretary of state and is now the defendant in the lawsuit with PILF, hired outside lawyers to investigate noncitizens voting in Pennsylvania.

Those attorneys in turn hired an unnamed outside expert to further investigate the 100,000 registrants who the state said might be noncitizens.

Schmidt is being sued by the PILF over his refusal to release all unrestricted information, including plans, methods, and procedures, connected with the removal from the voter roll of noncitizens improperly registered and voting in the Commonwealth.

In November 2023, the U.S. Department of Justice filed an amicus curiae brief supporting PILF’s contention that the State Department’s methods and procedures records are public information.

The PILF also contends that the hiring of the outside expert to conduct the investigation by the outside attorneys hired by the State Department is an abdication by the department of its legally mandated duties to maintain the accuracy and currency of the voter rolls.

Public Interest Legal Foundation  President J. Christian Adams. Courtesy of the Public Interest Legal Foundation

The National Voter Registration Act of 1993 (NVRA) requires a state to conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters.

Where Is the Accountability?

The PILF complaint objects to an outside party—whom the department itself says is not accountable to the public—performing the department’s official, legally mandated functions.

Without Schmidt disclosing to the citizenry anything about the individual’s qualifications or methodology, the unnamed expert whittled down the 100,000 questionable registrations to 11,198—a number that the commonwealth says needs further investigation.

The PILF argues that, under the NVRA’s public disclosure provisions, people have a right to know the particulars about how the other 89,000 registrations were handled and what happened to them.

The NVRA said, “Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.”

According to PILF’s appeal, State Department officials explained that it is out of anticipation of possible litigation that they are withholding the identity, findings, and methods of their expert under the legal doctrine called “attorney work product privilege.”

Schmidt did not respond to requests for comment.

“For six years, we have been fighting to obtain records about aliens getting registered to vote in Pennsylvania for decades due to a so-called ‘glitch,’” PILF President J. Christian Adams said in a statement. “The Commonwealth has admitted it was happening but has refused to disclose how they identified the aliens on the voter roll and their voting histories.

“The public has a right to see these records and to know how Pennsylvania has ensured this won’t happen again.”