Adam Lambert (clammyc) & ePluribus Media Staff Writers
ePluribus Media has interviewed sources who once worked in the Department of Justice and they suggest that Robert Popper, Special Litigation Counsel for the Voting Section, has been instrumental in the disintegration of voter rights in minority districts.
Popper joined the Voting Section of the Justice Department at the beginning of 2006 during the wave of new hires that replaced attorneys who were allegedly forced out because they were not "loyal partisans" and replaced by members of organizations such as the Republican National Lawyers Association and Federalist Society. As Special Litigation Counsel, Popper’s charter is to be one of the chief "enforcers" of the Voting Rights Act. Ironically, Popper has been involved in at least a half-dozen cases which purportedly tried to accomplish exactly the opposite of guaranteeing the rights of those he has been charged with protecting.
Background
Popper graduated from Northwestern University Law School and was admitted to theNY Bar in 1990. He became a lobbyist for the National Tax Limitation Committee1, and was also involved in a number of initiatives that were geared towards limiting the rights of voters. These initiatives and acts included developing standards for redistricting and challenging the legality of districts that happened to generally be largely minority.
Popper and Gerrymandering
The term "gerrymandering" refers to redistricting in a manner that would unfairly skew the district in favor of one political party over another. In fact, Popper, along with Daniel Polsby, Professor of Law at George Mason University School of Law, developed the "Polsby-Popper Compactness Test," which is a mechanism for measuring districts based on the relative geographic dispersion of a district. This measure has been used in a number of districts in order to redraw district lines, and is featured on the Arizona's Independent Redistricting Campaign's website, as well as having been cited in a number of Supreme Court rulings.
Popper and Polsby also authored a law review article titled "Ugly: An Inquiry into the Problem of Racial Gerrymandering Under the Voting Rights Act," which asserted that "ugly" (meaning misshapen) districts were not accurately representing the voting demographics of a particular district. Popper and Polsby advanced the thesis that the creation of "compact" districts that did not take into account the racial composition of a district was superior to the creation of majority-minority districts that gave minorities representation in rough proportion to their percentage of the population. While the Polsby-Popper reports contend that compactness will restrain gerrymandering and other proponents indicate that compactness will "reverse prior Democratic gerrymandering," there are many opinions to the contrary.
One, Harvard University study's simulations (by Micah Altman, who is Associate Director of the Harvard-MIT Data Center), indicated that "district compactness can systematically influence election results."
For example, Altman cites a number of critics in his studies, including the following:
Compactness measurements are not sufficiently restrictive to prevent electoral manipulation in most cases -- "(compactness) provides benefits more illusory than real" (Musgrove 1977, 56)
Compactness standards put severe limits on some types of gerrymandering, but may also be used to "pack" districts to the disadvantage of an opponent. (Hacker 1964)
Deviations from compactness cannot be used to discover gerrymandering which is used to (dis)advantage a group, but may be useful as a signal of incumbent gerrymandering. (Grofman 1985)
Ill-compactness is a warning signal that requires justification, but "compactness alone does not make a redistricting plan good." (Niemi et al., 1991, 1177)
Compactness measurements are only useful if used to force an explanation for odd shaped districts. If they are used as rigid requirements, they will cause a harmful shift of attention from politics to mere geography. (Dixon 1968)
Compactness measures do not capture manipulation consistently, and they will produce more subtle and invidious gerrymandering: "This reliance on formulas has the semblence, but not the substance, of justice." (Young 1987, 113)
Compactness is of little intrinsic value and conflicts with good government criteria such as minority vote protection, district competitiveness, fair "swing ratios," respect for political and geographic subdivisions, respect for communities of interest, and other factors of intrinsic value. (Aleinikoff and Isacharoff 1993; Cain 1984; Lijphart 1989; Mayhew 1971)
Compactness standards are only weak proxies for that which is really important -- civic inclusion (Karlan 1989)
Compactness standards are inherently biased against urban dwellers, and will systematically hurt Democrats and minorities: "By and large, however, the introduction of a compactness rule significantly tilts the game in favor of the Republicans." (Lowenstein 1985, 25)
These critics contend that the very metric that Popper advocates as necessary to "undo" gerrymandering has itself been questioned as to its effectiveness and fairness.
Popper's Legal Career Prior to the Justice Department
A 1996 case in New York City requested that New York's 12th Congressional District, which was largely Hispanic, be declared unconstitutional. Robert Popper was one of the lawyers who argued that the district was unconstitutional. Also, Popper later argued — and lost — Chen v. City of Houston, which attempted to overturn Houston's city council districting plan as an unconstitutional racial gerrymander. Oddly, the plan Popper argued to overturn was one that the Fifth Circuit Court of Appeals noted had been specifically drawn to comply with the Voting Rights Act and which created majority-black and Hispanic districts in rough proportion to the percentages of those groups in Houston's overall population.
Supreme Court cases generally indicated that race may not be "the predominant factor" in a legislative body's redistricting decision. Of course, this litmus test cuts both ways - if race shouldn't be a factor (which is a valid argument), then should redistricting decisions be based predominantly on factors where the district would be unfairly skewed against a particular race? A fair standard should be used to determine how a district is drawn, but the "compactness" measure has received enough criticism that its validity is questionable.
The Center for Equal Opportunity, known for its anti-affirmative action work, includes Popper as one of the attorneys who has "successully represented individuals and organizations in challenging race-based voting districts. It should be pointed out that its president, Roger Clegg, testified against the renewal of the Voting Rights Act last year and included an allegation that parts of the Voting Rights Act of 19965 are unconstitutional.
Read the rest of the full article for more on some of the cases Popper has pursued since arriving at the Voting Section of the Civil Rights Division:
Voter Rights: Is Robert Popper the Fox Guarding the Henhouse?.
About the Authors: Adam Lambert is a tax consultant living and working in the New York City area. Blogging under the name "clammyc," he has researched and written extensively on issues involving Iraq, the Bush administration and the "war on terror."
ePluribus Media staff writers: Publius Revolts, Cho, Aaron Barlow, Standingup, and Roxy contributed to this story
ePluribus Media Researchers, Contributors & Fact Checkers: AvaHome, GreyHawk, wanderindiana
Read ePluribus Media's earlier articles on the Voting Section:
Dismantling Voting Rights Enforcement and The Voting Rights Act, Voter Disfranchisement and the Tail Wagging the Dog
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