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, may have 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.
Popper graduated from Northwestern University Law School and was admitted to the NY 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
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-affirmativ
Curious Cases While at the Justice Department
Once employed by the U.S. Department of Justice, Voting Section, Popper’s involvement in certain cases is noteworthy.
On Thursday [August 3, 2006], the New York Times ran an editorial [entitled "Strong-Arming the Vote"] calling the hearing "a one-sided proceeding that felt a lot like a kangaroo court" and said the "Justice Department is giving the impression that it is less concerned that elections be lawful and fair than that they come out a particular way."
And gubernatorial candidate Lucy Baxley said in a press release that "assigning duties to the Governor, who is seeking re-election, comes across as a power-grab which further adds to the image he is gaining by flaunting his big money ties."
Missouri: While Bradley Schlozman may have been the impetus behind the Voting Section's failed Missouri lawsuit, an attempt to combat nearly nonexistent "voter fraud" by making states purge their voter rolls more aggressively, Popper was the special litigation counsel in charge of the litigation for the Voting Rights Section. He, not attorneys or staff from the U.S. Attorney's office, represented the government in oral arguments on motions in the case. Former Voting Section employees who spoke to
New Jersey: Popper was also involved with a case in New Jersey that dealt with "maintaining proper voter registration databases" but was focused on the elimination of names from the voter registration list (one example would be for people who changed residence).
Maine and Indiana: Other cases in 2006 that Popper was involved with included one in Maine that was seeking action with respect to electronic voting machines and "failure to conduct a program to identify and remove ineligible voters from the official registration lists," as well as Indiana on similar issues. Ironically, the
While it is certainly within the right of the Voting Rights Section (and the Attorney General) to ensure that HAVA's rules are properly enforced and that ineligible voters do not remain on voter registration rolls, a few points merit underscoring:
|In 2004 and 2006, there was a widely reported substantial increase in voter registrations for the Democratic party;|
|There were numerous reports asserting the destruction of Democratic party voter registrations in numerous states;|
|These cases brought by the Attorney General (and also involving Popper) were serving to limit the number of people that would be eligible to vote;|
|Aggressive voter purges disproportionately target low-income and minority voters, who happen to be the Democratic Party's most dependable; and|
|The Voting Rights Section is supposed to be protecting low-income and minority voters, not forcing states to more aggressively purge them from the voter rolls and thus make them ineligible to vote.|
A review of Robert Popper's career shows that his emphasis has been on aggressive purging of voter rolls __ based on spurious allegations of voter fraud and dismantling the majority-minority districts that the Voting Section has historically been charged with creating.
As McClatchy's Greg Gordon states: "On virtually every significant decision affecting election balloting since 2001, the division's Voting Rights Section has come down on the side of Republicans, notably in Florida, Michigan, Missouri, Ohio, Washington and other states where recent elections have been decided by narrow margins."
1Washington Post "Library of Congress curtailing hours", March 3, 1986.
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