The Federalist Society

Census Methods Raise Constitutional Flags

Federalism & Separation of Powers Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

August 1, 1999

Matthew J. Glavin

A recent pair of Supreme Court decisions addressed the method for conducting the decennial census in the year 2000 — a decision of profound importance to the composition of Congress and the structure of the government.  The U.S. Commerce Department and the U.S. Bureau of the Census had proffered an unprecedented plan to conduct the census through the use of statistical sampling rather than the “actual Enumeration” head count mandated by the U.S. Constitution and federal law.

Two separate unanimous opinions from specially-appointed three-judge panels in Virginia and Washington, D.C. issued injunctions prohibiting the Department from using sampling in the decennial census for purposes of apportioning congressional representation.  Glavin v. Clinton, 19 F. Supp. 2d 543 (E.D. Va. 1998), and U.S. House of Representatives v. U.S. Department of Commerce, 11 F. Supp. 2d 76 (D.D.C. 1998).

The Supreme Court, in a majority opinion written by Justice O’Connor and joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy, and Thomas, affirmed the opinion of the three-judge panel in the Eastern District of Virginia.  Department of Commerce v. U.S. House of Representatives, 119 S. Ct. 765 (1999).  Since that decision also resolved the substantive issues presented in the case filed by the U.S. House of Representatives against the U.S. Department of Commerce, the Court held that the House of Representatives case “no longer present[ed] a substantial federal question,” and the appeal in that case was therefore dismissed.”  119 S. Ct. at 779.

The Court first held the plaintiffs in Glavin had standing to sue.  In particular, the Court noted that the State in which plaintiff Hofmeister lived (Indiana) was expected to lose a Representative in the United States Congress, and this fact “undoubtedly satisfies the injury in fact requirement of the Article III standing.”  119 S. Ct. at 774.  The Court reaffirmed that voters have standing to challenge an appointment statute because they “‘are asserting a plain, direct and adequate interest in maintaining the effectiveness of their votes.’”  Id. (quoting Baker v. Carr, 369 U.S. 186 (1962)) (further citation and quotations omitted).  With one fewer representative, Indiana residents’ votes would be diluted.

Additionally, the Court held that standing was established on the basis of the expected effects of the use of sampling in the 2000 Census on intrastate redistricting.  119 S. Ct. at 774.  The Court noted that several states require the use of federal decennial population numbers for their State legislative redistricting.  Moreover, states use the population numbers generated by the federal decennial census for federal congressional redistricting.  Karcher v. Daggett, 462 U.S. 725, 738 (1983).  Accordingly, many of the plaintiffs “ha[d] a strong claim that they will be injured by the Bureau’s plan because their votes will be diluted, vis-a-vis residents of counties with larger ‘undercount’ rates.”  119 S. Ct. at 775.

On the merits, the majority held that the proposed use of statistical sampling to determine population for purposes of apportioning congressional seats among the States violates § 195 of the Census Act.  The Court held that the broad grant of authority given the Department in § 141(a) — upon which the Department relied — is “informed . . . by the narrower and more specific § 195.”  119 S. Ct. at 777.  In light of the historical precedent and legislative history of the Act, the Court concluded that there was no support for the Government’s interpretation of § 141 as a broad mandate to use sampling for purposes of apportionment at the Secretary’s discretion.  Indeed, the Court noted that the Executive branch did not adopt its present position until 1994, “when it first concluded that using statistical sampling to adjust census figures would be consistent with the Census Act.”  Id. at 778.  Further, the Government did not claim and the Court did not grant deference to the agency’s determination to use the sampling method in Census 2000.  Id.

Justice Scalia, joined by Chief Justice Rehnquist, and Justices Thomas and Kennedy, submitted a concurring opinion.  Focusing on the constitutional question at issue, Justice Scalia noted that it is Supreme Court’s practice to construe statutory text in such fashion as to avoid serious constitutional doubt.  In the view of the concurring Justices, it is “unquestionably doubtful” whether the constitutional requirement of an “Actual Enumeration,” Article I, § 2, cl. 3  is satisfied by statistical sampling.  119 S. Ct. at 781.

Rebutting Justice Stevens dissent that the “manner” of conducting the census must be “complete and accurate,” Justice Scalia responded:

That is true enough, and would prove the point if either (1) every estimate is more accurate than a headcount, or (2) Congress could be relied upon to permit only those estimates that are more accurate than headcounts.  It is metaphysically certain that the first proposition is false, and morally certain that the second is.  To give Congress the power, under the guise of regulating the “Manner” by which the census is taken, to select among various estimation techniques that have credible (or even incredible) “expert” support, is to give the party controlling Congress the power to distort representation in its own favor.  In other words, genuine enumeration may not be the most accurate way of determining population, but it may be the most accurate way of determining population with minimal possibility of partisan manipulation. 119 S. Ct. at 781-82.

Accordingly, based on text and tradition, the concurring opinion states that “sampling” techniques are not the “actual” enumeration that the Constitution requires.  Id. at 782.

The concurrence’s suggestion that sampling is unconstitutional is clearly correct.  Article I, section 2 of the U.S. Constitution authorizes a ten-year “actual Enumeration” of the U.S. population.  The Fourteenth Amendment delineates the approved method and reason for the census:  “Representative [in Congress] shall be apportioned among the several States according to their numbers, counting the whole number of persons in each State . . . .”  Moreover, in Federalist No. 54, James Madison declared the actual head count census methodology to be the “permanent and precise standard” for determining U.S. population, thereby avoiding the potential for manipulation of the numbers by any state or group.

The Framers debated similar issues in the hot summer of 1787.  They understood from colonial practice the difference between determining population by “actual enumeration” and doing so by estimation.  In fact, the colonies has established methods for determining the population to apportion taxes and political power long before the Constitution was ratified.  However, the Framers considered and rejected proposals to allocate representation based on the relative wealth of the states and decided instead to use population as the sole measure.  The Framers also rejected proposals made on behalf of New Hampshire and Georgia to calculate the number of representatives for each state based on estimates of anticipated population growth rather than actual population.

The Framers’ rejection of the practice of estimation in favor of the “permanent and precise standard” of the actual count signaled the deep concern for making the apportionment of political power immune to manipulation.  The decennial head count would insure that the shifts in power between the states would not be subject to controversy.  To further ensure the integrity of the enumeration process, the Framers also linked direct taxation to the state head counts, although that precise provision was repealed by passage of the Sixteenth Amendment to the U.S. Constitution, authorizing federal income taxation.  With the latter key check against the temptation to inflate population numbers removed, the “actual enumeration” mandate has taken on even greater significance.

The government’s controversial plan for Census 2000 was a radical departure from previous census methods.  The amended plan calls for an actual head count of only an estimated 90 percent of the U.S. population in lieu of an actual head count.  The remaining ten percent to fifteen percent, approximately 27-37 million people, would be statistically projected based on assumptions made by census administrators.  Under this “best guess” approach, Census Bureau statisticians will “adjust” the initial estimate of the population in an attempt to account for a projected “differential undercount.”

Fundamentally, Glavin and U.S. House of Representatives were challenges about the law, not about census accuracy.  In both suits, plaintiffs raised key arguments about the nature of representative democracy and the critical importance of the census in the process of republican government.  Government defendants and their sampling allies have characterized the two legal challenges as partisan attempts to obstruct legitimate efforts to account for certain minority groups who may be undercounted in the decennial census.  In fact, Vice President Gore  announced that sampling will protect racial minorities from the alleged goal of the Republican Party, which, he believes “does not want to court” minorities.

Contrary to the government’s position, however, the Bureau has already spent more than $260 million to obtain better mailing lists for Census 2000, and has acquired advanced technologies to better process the raw data collected during the census.  The Bureau has further simplified the mail-in census surveys, has allocated $100 million, and proposed another $300 million, for a national television advertising campaign to “get-out-the-count,” and has designed better community outreach programs to count the hard-to-reach people.  The ostensible goal is a more accurate head count.  According to past census directors, these actions alone will reduce any perceived undercount by 50 percent, resulting in the most accurate census in U.S. history.

For the first time in American history, partisan manipulation of the census-taking process is a very real possibility.  Whether promulgated by Democrats or Republicans, the courts have made clear that statistical sampling is illegal, and for good reason.  The integrity of the census count is every bit as critical to representative democracy as the integrity of the ballot box is to honest and free elections.  We do not guess at the number of votes in an election, and we cannot, under law, guess at the number of people in America.

There is another troubling aspect to the government’s proposal.  The proposed sampling methodology assumes that past census results are predictive of an undercount in 2000 and that the undercount will be concentrated in certain racial and ethnic groups.  Therefore, the methodology will incorporate racial classifications in its formulas that will, in effect, statistically “invent” persons of the racial and ethnic groups who were presumptively not reached by the count.  The statistical formulae will identify the location at the census block and tract levels, and — even though there is no evidence of the existence and location of any actual persons — the government will employ racial assumptions in adjusting the data at that level.  Given the complete absence of any evidence that the perceived “undercount” is caused by intentional racial discrimination by the federal government, the conscious injection of race-based decision-making into the calculation of the census is an additional cause for serious concern.  Adherence to a full and accurate headcount eliminates any possibility that future censuses could be manipulated based on constitutionally impermissible criteria.

The importance of the census is difficult to underestimate.  It determines the assignment of representatives, not only in the House of Representatives, but also in the state legislatures.  Additionally, more than $180 billion in federal funds are distributed annually among the States based on census figures.  By tampering with the census outcome, sampling advocates would dramatically affect, not only the balance of political power, but also the direction and impact of important federal programs relating to housing, education, welfare and public safety.  The “actual enumeration” mandate ensconced in the U.S. Constitution and federal law is the only remaining check against seeking improper advantage with the census numbers.

Should the 2000 census be comprehensive and accurate?  Of course.  Will it reflect the true population of our nation?  By law, it must.  “Actual” versus “sampled” enumeration is a distinction with fundamental legal consequences.  At all costs, we must avoid the politicization of the decennial census by an individual or group.  We must encourage national participation in the census and support the Census Bureau in its efforts to improve the head count.  As the Framers intended, we must count everybody, because in America, everybody counts.

*Matthew J. Glavin is President of Southeastern Legal Foundation, an Atlanta-based public interest law firm founded in 1976.  He was one of the named plaintiffs in Glavin v. Clinton.


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