I have written this piece for Slate. It begins:

Last week, the Supreme Court allowed Virginia to conduct a last minute voter purge to remove potential non-citizens from the rolls despite a federal law that seemed to bar the practice. And it refused for now to put on hold a Pennsylvania Supreme Court ruling allowing some state voters who mistakenly failed to include required secrecy sleeves over their absentee ballots to vote instead using a provisional ballot at a polling place.

But perhaps the most important thing that the court did in relation to the 2024 elections came two Supreme Court terms ago and was more indirect. Its actions could be costing thousands of voters their right to vote in Pennsylvania and elsewhere.

On Friday, the Pennsylvania Supreme Court put on hold a lower court ruling holding that could have prevented the disenfranchisement of thousands of Pennsylvania voters who cast timely mail-in ballots but with incorrect or incomplete dates. The Pennsylvania court may well have acted out of fear of violating the U.S. Supreme Court’s 2023 ruling in Moore v. Harper and the “independent state legislature theory.” Moore may be deterring other state courts too from appropriately protecting voters more aggressively under their state constitutions.

Pennsylvania’s law disenfranchising voters who cast timely ballots but make an immaterial mistake is nonsensical. If a mailed ballot has arrived at election offices before election day, so we know it is timely, who cares if a voter has written in her birthdate rather than the correct date that she signed the ballot? The date requirement on a timely mailed ballot serves no purpose when state law requires ballots to be received by election day. Thousands of ballots are expected to be tossed in the upcoming election for this technical defect….

Why did the state Supreme Court reject all these attempts? The most recent rejection appears to be all about timing. Even if the “Purcell principle” is overused and selectively applied, changing the rules just days before the election is generally a bad idea. But the court also might have been worried that it would have gotten a quick U.S. Supreme Court smackdown under Moore v. Harper if it did so. And that fear of being slapped down might have been why the state supreme court also didn’t take up the issue earlier….

This is what was hanging over the Pennsylvania Supreme Court when it decided against protecting voters in its state who make an immaterial voting mistake. If it reads its Constitution too aggressively to protect the rights of voters, it faces a Supreme Court that has given itself the power to strike such a ruling down and keep the state court in check. Moore is acting as a deterrent to protecting voting rights, especially through novel interpretations of state constitutions. Especially given that the federal courts are not protecting voting rights aggressively under the U.S. Constitution, this new hamstringing hurts.

Justice Samuel Alito signaled as much in a statement he issued in the other Pennsylvania case I flagged at the top of this piece, the one about secrecy sleeves on absentee ballots. Alito, writing for himself and other ultra-conservative justices Clarence Thomas and Neil Gorsuch, agreed that procedural problems meant the court should not take up the issue at this time. But he flagged the Moore issue even though he had no obligation to explain himself in this emergency case. As Chris Geidner wrote for his indispensable Law Dork substack, Alito was telling the world that “he, Thomas, and Gorsuch were open, in the context of Tuesday’s general election, to considering in a future case whether the Pennsylvania Supreme Court had gone too far.”…