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

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.

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.”

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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.

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.”