In an unsigned order with no noted dissents, the PA Supreme Court has removed the considerable uncertainty that was generated when the lower court (the Commonwealth Court) issued an opinion holding that misdated or undated but timely mail-in ballots must be counted to protect voting rights under the state Constitution.

Republicans wanted an order to make it clear that this ruling, which was not about the upcoming elections, should not be applied by state election administrators in this election. Democrats wanted an order requiring that this ruling apply throughout the state. Probably the worst outcome would have been the state supreme court doing nothing, leaving it to be fought county by county during this election.

Today’s order by the state supreme court explicitly says that the lower court order “shall not be applied to the November 5, 2024 General Election.” (It allows the appeal in the case to proceed on the normal course after the election.) Two justices issued separate concurring opinions, one of them castigating the parties and the court for trying to push this issue yet again, after the state Supreme Court had earlier decided not to take up the issue before the election and generally signalling that they were not going to take any extraordinary measures to take up state issues before the election. The one concurring justice wrote: “‘This Court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election.’ We said those carefully chosen words only weeks ago. Yet they apparently were not heard in the Commonwealth Court, the very court where the bulk of election litigation unfolds. Today’s order, which I join, rights the ship. And it sends a loud message to all courts in this Commonwealth: in declaring we would not countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election, we said what we meant and meant what we said.”

So what does this mean?

First, as to the issue of these undated or misdated ballots: there will be no state law claim to have these ballots counted anywhere in the state if there is a very close election in PA that could come down to these ballots. That does not mean someone could not try to run to federal court to make an equal protection argument to have them counted (that would be a long shot). But the state doors are closed.

Second, as I write this, we are still awaiting a U.S. Supreme Court ruling on a different set of cases involving “naked” ballots and the ability to cure them. I’m not sure what, if anything, the U.S. Supreme Court will do. But this case, and this quick order, sends a signal to SCOTUS that the PA Supreme Court in 2024 will not look like the Florida Supreme Court looked to conservative Justices in the 2000 disputed election, as a court willing to change the rules relying on disputed readings of the state constitution’s protections for voting rights.