Pennsylvania votes to be rejected on a technicality.

Last week the Supreme Court Virginia allowed to conduct a last-minute voter purge to remove potential noncitizens from the voter rolls, despite a federal law that appeared to ban the practice. And it refused to put on hold for the time being a Pennsylvania Supreme Court ruling that allowed some state voters who improperly failed to place mandatory secrecy covers on their ballots to vote instead with a provisional ballot at a polling place.

But perhaps the most important thing the court did regarding the 2024 election came two terms ago at the Supreme Court and was more indirect. Her actions could cost thousands of voters their right to vote in Pennsylvania and elsewhere.

The Pennsylvania Supreme Court spoke on Friday put on hold a lower court ruling that could have prevented the disenfranchisement of thousands of Pennsylvania voters who cast ballots on time but with incorrect or incomplete dates. The Pennsylvania court may have acted out of fear of violating the 2023 U.S. Supreme Court ruling. Moore to Harper and the ‘theory of the independent state legislature’. Moor could also prevent other state courts from more aggressively protecting voters under their state constitutions.

Pennsylvania’s law disenfranchising voters who cast their ballots on time but make an immaterial error makes no sense. If a mail-in ballot arrives at the elections office before Election Day so we know it’s timely, what difference does it make if a voter wrote her date of birth instead of the correct date she signed the ballot ? The date requirement for a timely mail-in ballot is meaningless if state law requires ballots to be received by Election Day. It is expected that thousands of ballots will be discarded in the upcoming elections due to this technical defect.

The Pennsylvania Legislature has failed to step in and change this terrible law, so voting rights advocates have gone to court to challenge it. A federal challenge arguing that the law violates a section of the Civil Rights Act of 1964, which prohibits voter disenfranchisement for certain immaterial errors, has so far failed; the Supreme Court will decide after the elections whether the case should be accepted.

But the handling of these timely ballots is also being challenged as a violation of the “free and equal” clause in Pennsylvania’s state constitution. Every state constitution provides some protection for states’ voting rights, and as federal courts increasingly interpret U.S. constitutional protections more narrowly, state courts and state constitutions offer a promising alternative path to protecting voters.

However, the Pennsylvania Supreme Court has rejected any attempt to address this issue substantively, whether through appeals in cases originating from lower courts or through an attempt to get that court to hear the case directly. The most recent denial came before the court on Friday put on hold a lower court ruling that again ruled that the case violated the state constitution.

Why has the state Supreme Court rejected all these attempts? The latest rejection seems to have everything to do with timing. Even if the “Purcell principle” is overused and selectively applied, changing the rules is fair to dawn before the election is generally a bad idea. But the court might also have worried about receiving a swift blow from the U.S. Supreme Court Moore to Harper if it did. And that fear of being struck down may have been why the state Supreme Court didn’t take up the issue sooner, either.

Moore to Harper was in one respect a great and important matter disturbing time bomb in another. In MoorFortunately, the court majority rejected a foolish argument that is central to Donald Trump’s attempt to overturn the 2020 election, namely that state legislatures have the free power to do whatever they want in federal elections. appointing electors, changing rules, unhindered by state courts, constitutions, governors and other state actors.

But the court also did something much more disturbing, as I did 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 sign onto a version of judicial review that would give the federal courts, and especially the Supreme Court itself, the final say in election disputes. . The court ruled that “state courts may not overstep the ordinary bounds of judicial review to the extent of usurping the power vested in state legislatures to regulate federal elections.” …

Make no mistakeThis apparently new test would give federal courts, especially the U.S. Supreme Court, broad power to reconsider state court rulings in the most sensitive cases. It will potentially allow for a second bite at the apple in cases involving the outcome of the presidential election.

This is what the Pennsylvania Supreme Court had in mind when it decided not to protect voters in its states who make an immaterial voting error. If the country reads its Constitution too aggressively to protect voters’ rights, it will face a Supreme Court that has given itself the power to strike down such a ruling and keep the state court in check. Moor acts as a deterrent to the protection of voting rights, especially through new interpretations of state constitutions. Particularly given that the federal courts do not aggressively protect voting rights under the U.S. Constitution, this new paralysis hurts.

Justice Samuel Alito also indicated this in a statement he issued in the other Pennsylvania case I highlighted at the top of this piece, the one involving secrecy sleeves on absentee ballots. Alito, writing for himself and fellow ultraconservative Justices Clarence Thomas and Neil Gorsuch, agreed that procedural issues meant the court should not take up the issue at this time. But he marked the Moor issue, even though he was not obliged to provide an explanation in this emergency. Like Chris Geidner wrote for are indispensable Dork Law substack, Alito told the world that “he, Thomas and Gorsuch, in the context of Tuesday’s general election, were open to considering in a future case whether the Pennsylvania Supreme Court had gone too far.”

It’s too late for Pennsylvania’s 2024 voters who write the wrong dates on their ballots but return those ballots on time. They will be deprived of their rights. But they are unlikely to be the last voting victims Moor.