Robert Popper, an attorney with Judicial Watch, testifies before the House Subcommittee on Congessional Redistricting on Feb. 18, 2022. Source: Screenshot/Florida Channel
Chairman Tyler Sirois opened Friday’s hearing of the House Congressional Redistricting Subcommittee by urging members not to get distracted by “noise” that erupted “outside of our process” concerning the work at hand.
He was talking about the hubbub about Gov. Ron DeSantis proposing his own congressional redistricting plan that would eliminate at least one Black-held district. DeSantis’ move delayed the House plan’s progress while the Florida Supreme Court decided whether to get involved (it did not). No governor has intervened in this way in living memory.
But the noise Sirois was worried about was already in the room in the form of Robert Popper, a senior attorney at the conservative Judicial Watch, who said he’d been sent by DeSantis to warn members that they’d better get on board with the governor or else the U.S. Supreme Court would “torpedo” their plan.
The committee ignored Popper’s advice, voting 14-7 to send the map to the full Redistricting Committee.
Popper specifically aimed at the proposed Congressional District 3, which would stretch from Duval County westward to Gadsden County, picking up a slice of Tallahassee, to create a “performing” Black district — one that would allow Blacks to elect a candidate of their choice.
The district resembles the existing CD 5, now held by Al Lawson, who is Black.
Popper argued that the district’s outline is so irregular that the federal courts will refuse to accept it, notwithstanding the House panel’s goal of maintaining minority representation. A map already passed by the Senate contains a similar district, approved by the Florida Supreme Court following the 2010 reapportionment.
The district could violate the Equal Protection Clause of the U.S. Constitution unless the Legislature can demonstrate that it was necessary to meet a compelling state need and clings as closely as possible to a requirement that a district be compact, he said.
“We all know that in a state of this importance, this district is going to end up — the entire map is going to end up — in litigation. We know that. I respectfully submit that that this committee and this House would want to be holding the strongest hand that it could,” Popper said.
“District 3, as drawn, will not permit that.”
Critics were on hand to argue against the subcommittee’s map from the other end, too. They included Miranda Galindo of LatinoJustice and Cecile Scoon of the League of Women Voters of Florida, who argued that it doesn’t account fully for population growth among Florida Hispanics and Blacks, maintaining only three districts likely to be carried by each group.
But Popper, sent by the governor to lean on the GOP-controlled subcommittee, stole the show.
Republicans peppered Popper with questions: Did DeSantis invite him to testify? Is he being compensated? Did he confer with anyone on his testimony? Has he offered testimony regarding any other state’s redistricting?
He answered, in turn: Yes. No. No. No.
Popper later clarified: “My understanding is that my flight and my hotel will be compensated by the governor’s office.”
Additionally: Could Popper recommend another way to draw the map to protect Black representation?
No, he could not.
Could he cite a precedent requiring the district to be compact?
“No, I’m not aware of any federal decisions that state that it must be compact,” Popper said. But “I know of no exceedingly noncompact district that has been used to justify a compelling explanation or justification that’s narrowly tailored to allow a race-based district to be drawn in a congressional race.”
Popper is a former U.S. Department of Justice attorney who helped devise the Polsky-Popper test, with fellow attorney Daniel Polsky, for measuring the compactness of a proposed district on a 10-point scale. The test is one of three the Legislature is using in devising new districts to account for the 2020 U.S. Census. District 3 scores 1 on that scale — hardly compact at all.
Members pointedly pressed Popper on the value of minority representation versus compact districts and were openly unhappy with his answers, which focused on the arcana of federal law and elided the points they were trying to establish (see that answer above).
Here’s the gist of what he said: That, although Florida ranks the value of sustaining minority representation as a top consideration when drawing districts, the federal courts will balk at a district spanning 200 miles that at one point runs only three miles deep.
In a document Popper filed with the subcommittee, he cited a 1993 Supreme Court precedent establishing that “redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification, states a federal, constitutional claim under the Equal Protection Clause.”
That would require the Legislature to argue the proposed district is justified to meet a compelling state need but that the solution is narrowly tailored to meet that end.
Panel Vice Chair Kaylee Tuck, a Republican representing Glades, Highland, Okeechobee, and part of St. Lucie counties, at one point asked straight out: “Do you agree that protecting minority voting ability from diminishment is a compelling straight interest?”
“It can be, yes, if it’s accomplished, madam chair, with a narrowly tailored remedy, yes,” Popper answered.
She followed up: “In that case, do you believe there should be any minority districts in North Florida, whether protected by state law or federal law?”
He replied that that’s a political question but, speaking as an expert on redistricting, “there’s a problem” with District 3.
Following the hearing, Chairman Sirois seemed to take DeSantis’ intervention in stride but said he hasn’t asked the governor’s opinion.
“I wasn’t surprised by it. We’ve seen all along that he has an interest in the subject matter,” he said.
He cautioned against relying on any single test in evaluating district maps, including Popper’s own test. “I think you have to look at all of those in context, at the whole map, and use not any single test, you know, as an end-all-be-all, Sirois said.
Scoon, meanwhile, said in a brief interview that Popper fundamentally misunderstands the Equal Protection Clause — it was designed, she said, to protect minority rights. She’s a civil-rights attorney.
“It literally came to protect. Now he’s trying to flip it,” she said.
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