Last week, the Supreme Court allowed Virginia to conduct a last-minute voter purge to remove potential noncitizens from voter rolls, even though a federal law appeared to ban the practice. And it refused for now to put on hold a Pennsylvania Supreme Court ruling that allowed some voters in states that mistakenly failed to include required secrecy envelopes on their mail-in ballots to vote on a provisional ballot at a polling place instead.

But perhaps the most important thing the court did in connection with the 2024 election occurred two Supreme Court terms ago and was more indirect in nature. His actions could cost thousands of voters in Pennsylvania and elsewhere their right to vote.

On Friday, the Pennsylvania Supreme Court put on hold a lower court ruling that could have prevented the disenfranchisement of thousands of Pennsylvania voters who cast mail-in ballots on time but with incorrect or incomplete data. The Pennsylvania court may have acted out of fear of violating the U.S. Supreme Court's 2023 ruling Moore v. Harper and the “theory of independent state legislation.” Moore could also discourage other state courts from more adequately and aggressively protecting voters under their state constitutions.

Pennsylvania's law disenfranchising voters who vote on time but make an insignificant error is nonsensical. If a mailed ballot arrived at election offices before Election Day and we know it is on time, who cares if a voter provided her date of birth and not the correct date she signed the ballot? The date requirement for a timely mailed ballot is pointless if state law requires ballots to be received by Election Day. Thousands of ballots are expected to be cast in the upcoming election due to this technical glitch.

Pennsylvania lawmakers have failed to step in and change this terrible law, which is why voting rights advocates have gone to court to challenge it. A federal lawsuit alleging that the law violates a portion of the Civil Rights Act of 1964 that bars voters from voting because of certain insubstantial defects has so far failed; The Supreme Court will decide after the election whether to accept the case.

But the handling of those timely votes has also been challenged as a violation of the “freedom and equality” clause in the Pennsylvania state constitution. Every state constitution provides some protection for states' voting rights, and as federal courts become increasingly parsimonious in interpreting U.S. constitutional protections, state courts and state constitutions offer a promising alternative path to voter protection.

However, the Pennsylvania Supreme Court has repelled every attempt to get it to address this issue on the merits, both through appeals in cases filed by lower courts and by attempting to get this court to do so to address the matter directly. The latest rejection came Friday when the court set aside a lower court ruling that again found the matter violated the state constitution.

Why did the state Supreme Court reject all of these attempts? The latest rejection seems to be all about timing. Even if the “Purcell “Principle” is overused and applied selectively, which simply changes the rules days before the election is generally a bad idea. But the court may also have feared it would have suffered a quick defeat at the U.S. Supreme Court Moore v. Harper if it were so. And that fear of being beaten may have been why the state Supreme Court didn't take up the matter sooner.

Moore v. Harper was on the one hand a great and important case and on the other hand a disturbing time bomb. In MooreThe court majority thankfully rejected a crazy argument that was crucial to Donald Trump's attempt to overturn the 2020 election that state legislatures have the free rein to appoint electors and change rules in federal elections , what they want, and not to be burdened by state courts and state constitutions, governors and other state actors.

But the court also did something much more worrying, as I explained in slate when the case was decided in 2023:

In the final part of his majority opinion for the court, the chief justice got the liberal justices to agree to a version of judicial review that gives the federal courts, and particularly the Supreme Court itself, the final say in election disputes. The court ruled that “state courts may not exceed the normal limits of judicial review by usurping the authority vested in state legislatures to regulate federal elections.”…

Make no mistake: This seemingly new test would give federal courts, particularly the U.S. Supreme Court, broad authority to second-guess state court decisions in the most sensitive cases. It will potentially allow a second bite at the apple when it comes to the outcome of presidential elections.

That's what was on the Pennsylvania Supreme Court's mind when it decided against protecting voters in their state who make an insignificant election error. If it interprets its Constitution too aggressively to protect voters' rights, it faces a Supreme Court that has given itself the power to overturn such a ruling and keep the state court in check. Moore has a chilling effect on the protection of the right to vote, particularly through new interpretations of state constitutions. This new paralysis is particularly painful given that the federal courts are not aggressively protecting the right to vote under the U.S. Constitution.

Justice Samuel Alito expressed this in a statement he issued in the other Pennsylvania case I mentioned at the top of this article, which involved secrecy envelopes on mail-in ballots. Alito, writing for himself and fellow ultra-conservative Justices Clarence Thomas and Neil Gorsuch, agreed that procedural issues meant the court should not take up the matter at this time. But he reported it Moore Problem, even though he had no obligation to explain in this emergency. As Chris Geidner wrote for his indispensable Law Dork Substack, Alito told the world that “in the context of Tuesday's general election, he, Thomas and Gorsuch were prepared to consider in a future case whether the Pennsylvania Supreme Court had gone too far.” .” .”

It's too late for 2024 voters in Pennsylvania who put the wrong date on their ballots but turn them in on time. They are disenfranchised. However, it is unlikely that they will be the last victims of the vote Moore.