Carolyn Shapiro has written a thoughtful response to my previous post. I offer a couple of quick additional points:

First, my characterization of how the majority of SCOTUS perceives what the Pennsylvania Supreme Court did in 2020 (in extending the deadline for returning absentee ballots) isn’t necessarily how I would perceive it. But if lower courts and litigants want to understand the implications of Moore v. Harper, my own view of whether or not the Pennsylvania Supreme Court went too far in its invocation of the state constitution in that case isn’t relevant. What is relevant is what the majority of SCOTUS thinks about this.

Second, Carolyn is correct that the problem in Pennsylvania was insufficient time between (1) the deadline for absentee ballot applications and (2) the deadline for returning completed ballots. And, as she notes, the three dissenters on the state Supreme Court would have altered the earlier deadline on the ground that doing so would have been less intrusive upon the state legislature’s clear policy preference that completed absentee ballots be returned on Election Day itself. Carolyn asks what the state supreme court should have done given the insufficient time. The approach of the three dissenting justices was clearly one option. Another option, even less intrusive on the policymaking choices would have been to render a ruling saying that the insufficient time was unconstitutional, and the legislature could have fixed the unconstitutionality by altering whichever way it wished (or, state administrators could have exercised authority delegated from the legislature to make the policymaking choice of which deadline to alter, which also would have involved less policymaking by the judiciary itself).