David Daley, Salon

When the Supreme Court overturned Roe v. Wade last week, the court's conservative supermajority performed a nifty sleight-of-hand, as if dressed in magician's capes rather than judicial robes.

The six conservatives suggested that the court wasn't scrapping a half-century of settled law, but empowering the people to solve the contentious issue of abortion rights themselves, via the political process.

"It's time to heed the Constitution and return the issue of abortion to the people's elected representatives," wrote Justice Samuel Alito in the majority opinion. The ruling, Alito continued, "allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office."

In a functioning democracy, in which majorities rule and the punishment for running afoul of the people's will is losing an election, reproductive rights would be safe nearly nationwide.

We do not have a functioning democracy. The court isn't returning abortion rights to the political process to be determined by majority rule. It's sending the issue back to state legislatures so gerrymandered that they can scarcely claim to reflect the will of the people at all. It's handing the issue to "elected representatives," yes, but elected from districts drawn by these very lawmakers so that they cannot lose.

It's a broken system and a rigged game, severed from electoral accountability and run by lawmakers increasingly insulated from the people. Alito and his colleagues fully understand this; their decisions to bless extreme partisan gerrymandering and bleed the Voting Rights Act have helped create this era of worsening minority rule.

This is democracy cosplay, performed by robed ideologues. After all, public opinion has remained remarkably consistent for the past 20 years: Before the Supreme Court's ruling in Dobbs, almost twice as many Americans wanted to see Roe upheld as wanted to see it overturned. And after the high court's decision, that number jumped even higher.

We have a broken system and a rigged game — democracy cosplay, severed from electoral accountability and run by lawmakers increasingly insulated from the public.

Yet even in states where majorities support abortion rights — including Iowa, Oklahoma, Ohio, Virginia and Arizona — lawmakers hurried to enact immediate, bold restrictions or enforce bans already on the books. This rushed activity followed additional abortion restrictions passed recently in Texas, Alabama and Georgia, despite opposition by majorities in those red states.

In Ohio, for example, a ban on abortions six weeks into pregnancy — a so-called heartbeat law — went into effect after the court overturned Roe. This law was passed by Ohio lawmakers in 2019 even though it was opposed by 52 percent of voters, and supported by just 39 percent.

Ohio enacted that ban just months after the 2018 elections, in which Democrats and Republicans equally divided the statewide vote for the state legislature. Nevertheless, Republicans had gerrymandered themselves such a massive advantage that they won nearly two-thirds of the seats. Gerrymandering built a firewall between runaway lawmakers and accountability at the ballot box. Only six of those 99 seats in the Ohio House could even be considered competitive, meaning there's effectively no way for a majority of voters to change their government.

Gerrymandering enables these laws — and then makes it all but impossible to vote the scoundrels out. So it should come as little surprise that GOP leaders have so little fear of the voters that they have already promised additional abortion restrictions this fall.

Even in closely divided states like Georgia and Florida, uncompetitive state legislative districts empower extreme lawmakers far out of the political mainstream. In Florida, those lawmakers passed a new package of abortion restrictions early this year, even though voters opposed them by a margin of nearly two-to-one. Gerrymandering helps Republicans hold 65 percent of seats in the state House, even though Gov. Ron DeSantis only won the state in 2018 by 33,000 votes. In 2020, when Donald Trump won 51 percent of the vote here, just six of 120 districts were competitive enough to be within 5 percentage points.

But that's also the case in officially red states like Texas and Oklahoma. The draconian Texas restrictions effectively turn citizens into bounty hunters, empowered to file lawsuits against anyone they think may have helped someone else obtain an abortion. A University of Texas/Texas Tribune poll showed that 57 percent of Texans opposed this legislation; lawmakers passed it anyway. Oklahoma — where a Pew Center poll found 51 percent of citizens believe that abortion should be legal in all or most cases — passed a similar bill, the public be damned.

Citizens can vote harder, lobby their elected representatives, run for office themselves, or do any of the other civic-minded activities Alito encouraged in his opinion. But none of that really matters when the outcomes are preordained.

Minority rule has a tight grip on American democracy, and it has only just begun to squeeze in earnest. The Supreme Court's conservative majority, of course, was itself appointed by two presidents who lost the national popular vote, and then confirmed by a U.S. Senate that does not reflect the public will and hands extra power to smaller, whiter and more conservative states.

Now, one by one, this court is handing down decisions most Americans revile, and suggesting that the answer lies in a political process that this conservative wrecking crew has been systematically kneecapping for the last decade.

It could get worse. On Friday, the court declared that it would hear arguments in a case from North Carolina that could hand gerrymandered state legislatures complete control over election law and procedures, from redistricting to the approval of presidential electors, without no veto by governors or review by state supreme courts. This terrifying notion is called the Independent State Legislature doctrine, and it seems likely that as many as four justices already support it. This is America as we head into so-called Independence Day: A nation where you can vote as hard as you want, but it might not make any difference.

The Republican "Big Lie" about voter fraud takes root in the fact-free soil of opposite world, where the Oscars are held at Mar-a-Lago and honor Dinesh D'Souza's "documentaries."

Here in reality, D'Souza is a convicted felon, his films amount to a lucrative grift operation and should be filed under fantasy, and GOP claims of voter fraud actually seek to distract from their own extensive pattern of rule-rigging, lawlessness and brazen vote suppression. (As for D'Souza, he received a presidential pardon from Donald Trump.)

D'Souza's latest work of wishcasting, "2000 Mules," which is much-watched on conservative platforms and can be streamed for the decidedly Trump-inflated price of $29.99, alleges, without merit, that shadowy gangs of liberal nonprofits stole the 2020 presidential election through an elaborate absentee-ballot collection scheme.

The film calls this "ballot harvesting" or "ballot trafficking," and it has as much merit as that ridiculous '90s-era myth about drugged travelers waking in an ice-filled hotel bathtub to realize that organ thieves had removed a kidney.

This week, NPR reported that the conservative group leveling these claims, True the Vote, has made "multiple misleading or false claims about its work," including that it "helped solve the murder of an 8-year-old girl in Atlanta." Again and again, these charges and the film's methodology have been debunked by fact-checkers, denied by GOP election officials (who have repeatedly investigated and found them meritless) and deplatformed by Fox News and Newsmax.

Naturally, under the inevitable rules of opposite world, it was Republicans earlier this month who were hit with a "ballot harvesting" scandal. The Philadelphia Inquirer reported that dozens of GOP primary ballots were mailed to a P.O. box linked to an organization called the Republican Registration Center — even though voters didn't recall asking for a mail ballot, and even if they had, couldn't explain why their ballots would go to some sketchy address instead of, say, to their home.

In the universe of facts, this latest GOP voter fraud scandal would suggest that "ballot harvesting" is easy to catch under existing laws. In the right-wing rage-o-sphere, however, D'Souza's misleading allegations have vaulted "ballot harvesting" and "ballot trafficking" into trending terms to describe how Democrats supposedly cheat.

Of course "ballot harvesting" didn't steal the 2020 election. It's a made-up GOP scare term. Yet as it becomes more prevalent, it's important to note that what the term actually describes is nothing like conservatives and this "documentary" would have you believe.

Third-party ballot collection is actually a well-regulated, fraud-free and useful practice in some states, several of which vote almost entirely by mail. In many contexts, it allows elderly and disabled voters, along with those who live on Native American reservations or in other remote rural locations, to return a ballot without personally traveling to a post office. In some areas of tribal land, for instance, doing that might require a four-hour round trip.

When Republicans manufacture panic around its use, their real intention is no mystery: to make it harder for members of minority groups, disadvantaged communities and other Democratic-leaning constituencies to vote.

Perhaps the best case study of its importance — and how Republicans respond — comes from Arizona, where early voting and mail voting have been commonplace for years. Third-party ballot collection had long been permitted to make voting easier for people on far-flung rural communities or on Native American land, where mail service is limited and unreliable. On tribal land, only 18 percent of Native voters have mail service at home. It's only common sense to allow a trusted community member to make a single trip.

After the 2010 elections, however, GOP lawmakers embarked on a concerted effort to shut this practice down. No one could offer any actual proof of fraud, in courts or the legislature, but a district court later uncovered the real intention of the ban's sponsor in the state Senate: Shutting down an effective "get out the vote" strategy employed by his opponents.

When the Department of Justice expressed concerns that the proposed law might affect minority voters and demanded more information before "preclearing" it under the Voting Rights Act, Arizona's attorney general conceded defeat and withdrew the request in order to avoid federal penalties.

When Republicans manufacture panic about "ballot harvesting," their goal is obvious: Make it harder for members of minority groups to vote.

The law quickly re-emerged, however, once the conservative majority on the U.S. Supreme Court eliminated the preclearance provision in 2013, in the controversial Shelby County decision. Freed from that provision of the VRA, Arizona lawmakers reinstated the law. Years of litigation followed, and lower courts repeatedly found the law discriminatory — in part because those who crafted it, such as the state's election director, admitted it was "targeted at voting practices in predominantly Hispanic areas."

While the U.S. Supreme Court, as part of its wide-ranging assault on the Voting Rights Act, allowed the ban to stand, holding that there were still other ways to vote in Arizona even if this law had some disparate effect, it's Justice Elena Kagan's dissent that will be remembered.

"The law prevents many Native Americans from making effective use of one of the principal means of voting in Arizona. What is an inconsequential burden for others is for these citizens a severe hardship," she wrote. "Arizona has not offered any evidence of fraud in ballot collection, or even an account of a harm threatening to happen." She concluded that the conservative majority was living in an "alternate world."

Indeed. Only in that alternate world, only in our fact-free ideological media bubbles, could a practice that ensures equal access to the ballot for those who need it most be misrepresented as something nefarious — and without offering any proof that withstands the slightest scrutiny. It's not just that D'Souza's "2000 Mules" spreads toxic untruths; it smears and rebrands something helpful to many voters (by no means exclusively to Democrats) as suspicious, devious and perhaps criminal.

"Ballot trafficking" is yet another big lie. As long as grifters can cash in on phony claims, and dishonest partisans can activate their supporters by corrupting faith in democracy itself, it will hardly be the last.

While this week has brought good news on voting rights from the Supreme Court, it may very well be a temporary win.

In a pair of orders issued on Monday, the justices allowed court-ordered congressional maps to stand in North Carolina and Pennsylvania, refusing to interfere with decisions by those state supreme courts. Republicans in both states had asked the court to block those maps under a tortured legal theory that has been advancing on the right, known as the Independent State Legislature (ISL) doctrine.

Make no mistake: This is a tremendous victory for voters in both states. The North Carolina state Supreme Court had rejected a GOP-drawn congressional map that guaranteed Republicans at least 10 and potentially 11 of the state's 14 seats as a violation of the state constitution. In Pennsylvania, where the state Supreme Court unwound last decade's extreme GOP gerrymander in 2018, that court mandated what most observers consider a balanced 9-8 map that does not favor either party.

The orders indicate an unlikely alliance. While the Pennsylvania order was unsigned, it appears the three liberals were joined by Chief Justice John Roberts and Justice Amy Coney Barrett to deny the emergency application in the North Carolina case, with a concurrence by Justice Brett Kavanaugh. Justices Clarence Thomas and Neil Gorsuch joined Justice Alito's dissent.

Yet while fair maps in North Carolina and Pennsylvania dodged a bullet, there is frightening news: As we first warned in Salon last September, the Independent State Legislature doctrine remains a live threat to free elections. Alito's dissent called the ISL — which speaks to whether a state court has the power to reject laws adopted by a state legislature concerning federal elections, or whether the legislature has unfettered control — "an exceptionally important and recurring question of constitutional law."

RELATED: Beware the "Independent State Legislatures doctrine" — it could checkmate democracy

In his separate concurrence with the North Carolina order, Kavanaugh — who has been previously receptive to this doctrine — held that it was too late for the federal courts to intervene in North Carolina right now, but that "both sides have advanced serious arguments" and the Supreme Court should resolve it soon. That's four votes right there, enough to put the case onto the court's calendar next year. There is significant reason to be alarmed that this court could then adopt a radical and antidemocratic theory that threatens the very nature of our elections and makes it easier for gerrymanders, voter suppression and electoral subversion to succeed.

What is the Independent State Legislature doctrine?

The central legal theory underpinning these efforts pushes for an expanded understanding of state power through "Independent State Legislatures." It is an interpretation of the U.S. Constitution that argues state legislatures have sole authority to set all election rules (including assigning of Electoral College votes), immune from any judicial review by state courts.

Many legal scholars believe this theory deserves condemnation, both as an antidemocratic effort to hand absolute power to often wildly gerrymandered state legislatures, but also as a departure from decades of constitutional precedent. But those scholars don't have any of the nine votes that matter.

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Four conservative justices have already indicated support: Alito, Thomas and Gorsuch in the North Carolina dissent issued this week, and Kavanaugh in his concurrence. It would just take either Roberts (whose stinging dissent in the 2015 Arizona Independent Redistricting Commission decision puts him down as a strong maybe), or Barrett to establish this crackpot theory as the law of the land.

It hardly seems to matter to Alito or his fellow conservatives that their tortured, "originalist" reading of the Constitution's Elections Clause seems little more than an effort to entrench Republican lawmakers in power, and veers wildly from Alito's recent votes on partisan and racial gerrymandering — all depending on the likely partisan outcomes.

These emergency applications may not have been the right moment for the court to squarely address this theory of radical state power. But the right moment could be coming soon, especially if the justices do decide to take up the North Carolina case in the next term.

If the Supreme Court were to adopt this theory, it would radically expand the power of state legislatures, giving them carte blanche to engage in partisan gerrymandering, voter suppression and election subversion, free from judicial review. Such a ruling could also shrink the power of state courts, state constitutions and state ballot initiatives to protect and expand fair elections and fair districts. It could even threaten the constitutionality of independent redistricting commissions.

The campaign to build credibility

This push to enlarge state power is coupled with efforts to build both narrative intellectual credence for the idea of wildly expanded state power, assisted by strategic litigation brought by conservative lawyers and institutions with the aim of getting before friendly conservative courts. The end game? Nothing short of the unraveling of representative democracy itself, through a sleepy and long-overlooked level of government: state legislatures.

Many legal scholars, including Nathaniel Persily, have derided the Independent State Legislature theory, pointing out that it gives "intellectual respectability to an otherwise insane, antidemocratic argument." An upcoming law review article by Akhil Amar and Vikram Amar goes into more detail, dismantling the theory as ahistorical and "utterly indefensible."

But this once-fringe theory is making its way to the mainstream of the highly effective conservative legal project. It's not just the two emergency applications at the Supreme Court. Even the influential Harvard Law Review lent intellectual credibility to this notion when it published a note in February on novel legal theories that would expand the power of states over elections — and election results.

And the roots of this theory in conservative legal circles might stretch back farther. As books like Jane Mayer's "Dark Money," Nancy MacLean's "Democracy in Chains" and Anne Nelson's "Shadow Network" have reported, a central strategy in the conservative ecosystem for the past 50 years has been the establishment of academic beachheads where conservative ideas (and thinkers) can be sponsored, incubated and then disseminated with the imprimatur of intellectual legitimacy. Ideas matter, and getting them into the mainstream takes both time and validation by thought leaders. It is perhaps no coincidence that several of the most notable early defenders of this theory of extraordinary state power over elections after the Bush v. Gore decision were linked to the University of Chicago Law School, historically a conservative beachhead.

Republican legislators and their allies are also working to further normalize the rhetoric around radically expanded state power among the public. In November 2020, Donald Trump's own Homeland Security Department declared the 2020 election the most secure in the nation's history. Yet radicalized Republican state legislators and conservative media sources have mainstreamed the Big Lie. Those legislatures have then used the Big Lie as a pretext for additional voting restrictions, to install partisan actors in positions that could prevent honest, accurate results from being certified, and order expensive audits and reports re-litigating the election results.

Just last week, Wisconsin's wacky 2020 election probe came to its end. The final report (delivered to perhaps the most gerrymandered legislature in the nation) is all the more astonishing considering it's written by a retired state judge. It baldly asserts that the legislature has the sweeping authority to "decertify'"presidential electors if the legislature concludes they were, vaguely, "not the slate of electors that best accorded with the election if run consistent with all relevant Wisconsin laws."

While this report bears no legal authority, it further disseminates these ideas, keeping them in the news and serving to spread and normalize a rhetoric that shocks the conscience now, but might not do so for much longer. It's yet another reminder that Republicans are actively and openly plotting for the next Jan. 6 — and that next time, they'll be in a stronger position to achieve the once-unthinkable.

Checkmating democracy in the state capitals

Republicans lack a popular mandate for the policies they pursue in state legislatures, whether those involve banning books or restricting reproductive rights. They fear the changing demographics of an increasingly multiracial nation. And so they have broken faith with democracy and are rigging rules to entrench themselves in office in near-perpetuity.

Sometimes democracies unravel with violence, right in front of us. The threat we face is a different one: A crackpot legal theory that could be accepted by robed ideologues installed on the nation's highest court, blocking, one by one, every avenue for voters, courts, elections or anything at all to stop them from turning our democracy into something unrecognizable. Let's be clear: the Independent State Legislature theory aims to clear a pathway for unchecked power in runaway state legislatures. So while voters won a rare and important victory at the Supreme Court this week, pay close attention: The gathering storm clouds haven't dissipated yet.

North Carolina has become a laboratory to subvert democracy. Republicans captured both houses of the state legislature in 2010, then engineered gerrymandered maps that ensured power for a decade.

Then they went to work: Voter ID bills that surgically suppressed the Black vote, a brazen power grab over the state judiciary and election administration boards, an assault on academic freedom in the state university system, a 2016 lame-duck session that neutered the authority of incoming Democratic Gov. Roy Cooper. This version of political hardball provided the playbook for Republicans in other states across the country, including Wisconsin, Michigan, Texas and Arizona.

Many villains provided the funding and legal cover for this evisceration of public institutions and meaningful elections. But if you want to understand how North Carolina's democracy became so diseased, a former state representative named David Lewis is a pretty good place to start.

Lewis, a farmer from rural Hartnett County who chaired the legislative committee that was responsible for redistricting, became the folksy public face of the greedy GOP gerrymander and freely admitted its partisan design. Now, after pleading guilty to two federal charges related to a scheme to siphon campaign funds for personal use, Lewis is also the public face for the greed, public corruption and entitlement that's too easily bred when lawmakers benefit from districts they can't lose.

Lewis didn't draw the actual maps; that task fell largely to notorious GOP mastermind Tom Hofeller. His job was genial obfuscation. In a line that was quoted all the way to the U.S. Supreme Court, Lewis proclaimed that the purple state's map was was intentionally drawn to elect 10 Republicans and three Democrats — because he did not believe it was possible to stretch the advantage to 11-2.

"I think electing Republicans is better than electing Democrats, so I drew this map to help foster what I think is better for the country," he said. It was a canny admission, delivered with an aw-shucks drawl, designed to conceal the unconstitutional race-based "packing" of Black voters that made the partisan edge possible. One congressional boundary in Greensboro even bisected North Carolina A&T, the nation's oldest historically Black university, creating two likely Republican seats, partly by putting seven of the school's dorms in one district and six in another.

When I asked Lewis about this on a 2019 panel at the University of North Carolina campus in Chapel Hill, he worked himself into a moral dudgeon over being accused of a racial gerrymander. It was simply a coincidence, he insisted, hardly intentional. After all, every district line had to go somewhere! Months later, however, when Hofeller's daughter turned over his digital files after his death, a story I first broke in the New Yorker, the truth was revealed. Hofeller had included racial data on his draft maps. Republicans had misled a federal court about how they used that racial data. Furthermore, the files suggested that Lewis had lied to his colleagues about when Hofeller started drawing maps, perhaps to sneak in one more election cycle under the tilted lines. As I dug through Hofeller's files, I found multiple spreadsheets with the addresses of thousands of North Carolina college students, coded not only by university and voting pattern, but based on whether or not they had the necessary ID to vote after passage of the legislature's new restrictions. Hofeller knew full well the meaning of that line through the A&T campus. The North Carolina Supreme Court would ultimately invalidate the map and demand a new one.

Lewis did no better when it came to hiding a brazen scheme to divert hundreds of thousands of campaign contributions for his own use. (An examination of his campaign finance reports showed that many donations came from national PACs with ties to GOP political interests, perhaps related to this rural lawmaker's control over redistricting.) Struggling to pay the bills on a family business, Lewis set up a bank account for a phony organization that he called NC GOP Inc., so that it resembled the name of the state party. He did not register that company with the state. Then he wrote checks from his campaign account to his sham company and reported them as donations to the actual North Carolina GOP.

They were not. According to the federal indictment, for just one example, Lewis caused a check for $50,000, made out to NC GOP, to be written from his campaign account in the summer of 2018. He deposited it instead into his own NC GOP Inc. account — and almost immediately wrote two checks from that account. One, for $47,600, went to Lewis Farms, his family business. Another $2,050 went to the landlord of his residence. According to prosecutors and Lewis' guilty plea, he ultimately siphoned some $365,000 for personal use.

This week, Lewis received a slap on the wrist for this illegal financial behavior: No prison time and a $1,000 fine. It pays to be well-connected. Indeed, those without fancy lawyers and professional acquaintance with the judge would almost certainly have earned serious prison time for matters involving much smaller amounts.

It hardly seems enough, not for Lewis's abrogation of public trust, and not for his larger sins against democracy which have ruined lives and damaged public institutions. But in the end, North Carolina Republicans essentially got away with that too. When courts overturned the GOP maps as unconstitutional partisan or racial gerrymanders, the party had infamous partisan loyalists like Hofeller on speed-dial to replace them with new maps that were just as obviously rigged, allowing Republicans to hold supermajority power even when the two parties closely divided the vote. And even when the state supreme court overturned Hofeller's handiwork in 2019, the maps went back to the legislature for tweaking and still favored Republicans in 2020, just a little less.

Which means Republicans will control the next decade of mapmaking in North Carolina as well. That got underway in earnest last week. There is a new public face. Republican lawmakers are already making troubling noises about how they will and will not use racial data. The disease is metastasizing. Lewis' petty corruption generated only the most tepid response. As for the egregious corruption of democracy itself — the bulldozing of competitive elections, the perversion of public policy? For that, there never seem to be any consequences at all.