Senator Yaw’s Statement on SR 410, a Senate Resolution Disputing the 2020 General Election

Over the past few weeks, my office has received hundreds of calls and thousands of emails from people all over the country frustrated over the outcome and security of the 2020 presidential election.  Viral misinformation has spread like wildfire on YouTube and other social media outlets, and, according to many callers, radio talk show host pundits have advocated for the Pennsylvania legislature to act against our own state Constitution. 

Senate and House Republicans have publicly announced that we will use our statutory power to investigate and seek answers to many of the claims made about the integrity of the 2020 election and seek to restore voter confidence.  However, the recent calls to my office have claimed that the legislature could, through the passage of a simple Senate Resolution, declare the 2020 presidential election in dispute and assign a new slate of electors contrary to the winner of the popular vote in Pennsylvania.  That is simply not accurate.   There are reasons why passage of SR 410 would not impact the results of the 2020 election.

First, the manner in which delegates are distributed is governed by our Election Law enacted in 1937.   Yes, the legislature chooses the presidential electors and in Pennsylvania the legislature has passed a law, 83 years ago, explaining the process.  The law provides that delegates follow the popular vote winner, so the legislature has chosen the delegates per constitutional requirements.  (In fact, Pennsylvania has followed this approach since the election of George Washington in 1789).   In short, those were the rules of the game for the 2020 General Election.  Both the United States Constitution and the Pennsylvania Constitution prohibit changing laws after an event to retroactively add a provision, which was not present before the event occurred.  A simple example is that if you are driving 70 mph in a 70 mph zone today, under our constitutions, next week we could not change the law to make the limit 60 mph and charge you with a 10 mph violation.  The legislature made the applicable rules here in 1937.

Second, Pennsylvania’s election results were certified, to include the governor’s signature, on November 24, 2020.   Accordingly, the Biden slate of electors was sent to Congress.    For all practical purposes, the delegate issue is no longer in the hands of Pennsylvania.  Similarly, every so-called battleground state has certified their election results, which show Biden as the winner and, consequently, like Pennsylvania, any question regarding delegates is now at the Congressional level, not the state.

Third, Senate Republicans have supported the President’s right to challenge election results on any legal grounds he chooses.  Nationwide, approximately 40 lawsuits have been filed including several in Pennsylvania alleging fraud and widespread irregularities.  The important point is that in any lawsuit allegations must be proven by admissible factual evidence presented under oath.  Consistently, both state and federal courts have ruled that the Trump lawyers have failed to produce facts to support the allegations.  Moreover, it is notable that the United States Attorney General and the Director of the FBI, both presidential appointees, have publicly stated that they have no evidence supporting widespread fraud or irregularities in the 2020 election.  We have all heard about 100’s of affidavits which support the fraud and irregularities allegations.   Why haven’t the lawyers introduced the documents in court?   Why haven’t the authors of those documents been called to testify in the court proceedings?  These questions are neither legislative issues, nor matters of state law.

Fourth, the 2019-2020 legislative session ended on November 30th, 2020.  SR 410 was formally referred to the Senate State Government Committee on that same day.  As of December 1st, the beginning of the new session, the Resolution introduced the preceding day in the old session was wiped out per Senate rules.  The new 2021-2022 session will not reconvene until January 5th, 2020.  Any effort to call a “special session” before that time period requires support from the governor, and that support will never happen since the subject matter of SR 410 challenges the certification process, which the governor actually followed.  Even if the legislature could take action, given all of the circumstances, a veto is virtually assured.

Finally, any changes to Pennsylvania election law would be applied prospectively and therefore any legislative action to change the law would be meaningless to the 2020 presidential election.  As indicated above, the delegate rules for the 2020 General Election were set by the election law passed by the legislature in 1937.   We can certainly change the law to apply going forward.  Frankly, there are many areas which need to be explored from “no excuse” ballots to canvasing to proper voter identification.  These matters are taken very seriously and will be thoroughly vetted in order to assure voters of the integrity of our systems.

I hope these comments help to address some of the misinformation being circulated on SR 410.