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
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 the 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: "Representatives [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 had 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.
* 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.