Voter Rights: Is Robert Popper the Fox Guarding the Henhouse?
Adam Lambert (clammyc) & ePluribus Media Staff Writers
21 May 2007

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.

Background

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 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 1965 are unconstitutional.

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.

Alabama:  For example, he argued a case in Alabama in the summer of 2006 that resulted in the Democratic Secretary of State being replaced by the Republican Governor (who happened to be seeking reelection and has no experience with election issues).   A Bush-appointed Federal District Judge named the Governor to be the chief implementer of the statewide voter registration database Alabama was required to create under the Help America Vote Act ("HAVA"). The replacement did not go unnoticed:

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 ePluribus Media only on the condition of anonymity confirm that the case was, in their words, “Popper’s baby.”   The case was without merit, and  U.S. District Judge Nanette Laughrey ruled that the Justice Department "has not shown that any Missouri resident was denied his or her right to vote as a result of deficiencies alleged by the United States [,] nor has the United States shown that any voter fraud has occurred."

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).

Pennsylvania:  Robert Popper was also instrumental in the filing of an Amended Complaint against the City of Philadelphia. This suit was originally filed as a minority language voter protection suit under Section 203 of the Voting Rights Act, but the original complaint wouldn't float. On April 26th, 2007, Popper amended the complaint to include HAVA and NVRA violations, including allegations that Philadelphia, which is heavily Democratic and has the largest population of minorities in the state, was not aggressive enough in purging voters from its rolls.

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 Indiana case sought to challenge the failure to remove ineligible voters from the registration list  based on its high registration totals as compared to other states.

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." 

Footnotes

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

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