Wisconsin v. City of New York Brief Amicus Curiae in Support of Respondents
Public Court Documents
December 8, 1995

Cite this item
-
Brief Collection, LDF Court Filings. Wisconsin v. City of New York Brief Amicus Curiae in Support of Respondents, 1995. 68eb4a5a-c99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7e9f9153-ca9a-4378-9683-b3fb54ae6e8a/wisconsin-v-city-of-new-york-brief-amicus-curiae-in-support-of-respondents. Accessed July 20, 2025.
Copied!
Nos. 94-1614, 94-1631 and 94-1985 In THE Supreme Gfrntrt ssf ttfe United States October Term, 1995 STATE OF WISCONSIN, Petitioner, vs. CITY OF NEW YORK, et a l, Respondents. (For Continuation o f Caption See Reverse Side o f Cover) ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMICUS CURIAE BRIEF OF THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, THE AMERICAN CIVIL LIBERTIES UNION, THE AMERICAN JEWISH COMMITTEE, THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., THE NEW YORK CIVIL LIBERTIES UNION and THE PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC. IN SUPPORT OF RESPONDENTS Jonathan L. Greenblatt Counsel o f Record Margaret Hahn-DuPont Shearman & Sterling 153 East 53rd Street New York, New York 10022 (212) 848-4000 (For Further Appearances See Reverse Side o f Cover) STATE OF OKLAHOMA, vs. CITY OF NEW YORK, et a l, Petitioner, Respondents. UNITED STATES DEPARTMENT OF COMMERCE, et al, Petitioners, vs. CITY OF NEW YORK, et al., Respondents. Paul C. Saunders, Co- Chair Herbert J. Hansell, Co- Chair Norman Redlich, Trustee Barbara R. Arnwine Thomas J. Henderson Lawyers’ Committee for Civil Rights Under Law 1450 G Street, N.W., Suite 400 Washington, DC 20005 (202) 662-8600 Christopher A. Hansen Steven R. Shapiro American Civil Liberties Union Foundation 132 West 43rd Street New York, NY 10036 (212) 944-9800 Samuel Rabinove American Jewish Committee 165 East 56th Street New York, New York 10022 (212) 751-4000 Elaine R. Jones, Director- Counsel Theodore M. Shaw Charles Stephen Ralston NAACP Legal Defense • and Educational Fund, Inc . 99 Hudson Street 16th Floor New York, New York 10013 (212)219-1900 Arthur N. Eisenberg New York Civil Liberties Union 132 West 43rd Street New York, New York 10036 (212)382-0557 TABLE OF CONTENTS TABLE OF AUTHORITIES......................... ................... INTEREST OF AMICI .................. ............................ ••••■•• STATEMENT OF CASE....... ...... ..... .................... .......... SUMMARY OF ARGUMENT............ .............. ............ . I. BECAUSE THE DECENNIAL CENSUS DIRECTLY IMPACTS ON FUNDAMENTAL CONSTITUTIONAL RIGHTS, THE SECRETARY’S DECISION MUST BE SUBJECT TO MEANINGFUL JUDICIAL REVIEW............ - A. Because the Decennial Census Directly Affects the Right to Equal Representation, Art. I, § 2 Requires a Census That Is As Accurate As Practicable ........... .............. ....... . B. An Accurate Decennial Census Is Crucial Because It Affects the Allocation o f Federal Funds, Resources and Opportunities........... . C. Meaningful Review by the Courts Is Necessary To Ensure That the Most Accurate Means o f Computing the Census Is Used....... D. The District Court Must Determine Whether the Commerce Secretary Acted in Good Faith To Ensure a Census that Is As Accurate As Practicable...................................... .................. CONCLUSION........... ............ ..................... ...... — 1 1 3 4 7 7 10 12 18 21 I TABLE OF AUTHORITIES Page(s) CASES Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995)............................... ............... 14 Baker v. Carr, 369 U.S. 186 (1962)........ ................... . 5,12 City o f New York v. U.S. Department o f Commerce, 822 F. Supp. 906 (E.D.N.Y. 1993)...................... 4 City o f New York v. U.S. Department o f Commerce, 34 F.3d 1114 (2d Cir. 1994)............... ...... ............ ......4, 10, 19 Franklin v. Massachusetts, 112 S. Ct. 2767 (1992) .... 7, 8, 9 Gomillion v. Lightfoot, 364 U.S. 339 (1960).... ...... . 14 Gray v. Sanders, 372 U.S. 368 (1963)................ ......... 12, 14 Karcher v. Daggett, 462 U.S. 725 (1983) .......... . 9, 10, 12, 13, 18, 19 Kirkpatrick v. Preisler, 394 U.S. 526 (1969) ...... . 13, 18, 19 Landmark Communications v. Virginia, 435 U.S. 829 (1978).................. ........... . 13 Plyler v. Doe, 457 U.S. 202 (1982)................................ 14 Reynolds v. Sims, 377 U.S. 533 (1964)......... 5, 9, 13, 14, 18 Sable Communications v. FCC, 492 U.S. 115 (1989) .. 13 Shapiro v. Thompson, 394 U.S. 618 (1969) ......... ........ 14 Washington v. Davis, 426 U.S. 229 (1976) ........... ...... . 14 Wesberry v. Sanders, 376 U.S. 1 (1964)..... 8, 9, 12, 14, 19 LEGISLATIVE HISTORY H.R. Rep. No. 439, 89th Cong., 1st Sess............. ......... 14 MISCELLANEOUS Modernizing the U.S. Census, 24, 444 (Barry Edmonston and Charles Schultze, eds., National Research Coucil, Committee on National Statistics)...................... . 11 INTEREST OF AMICI1 Lawyers’ Committee for Civil Rights Under Law The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) is a non-profit organization created in 1963 at the request of the President of the United States to involve private attorneys throughout the country in the na tional effort to assure equal rights to all Americans. Protec tion of the voting rights of citizens has been an important as pect of the work of the Lawyers’ Committee. The Lawyers’ Committee has provided legal representation to litigants in numerous voting rights cases throughout the nation over the last 30 years, including cases before this Court, see, e.g., Clark v. Roemer, 500 U.S. 646 (1991); Clinton v. Smith, 488 U.S. 988 (1988); and Connor v. Finch, 431 U.S. 407 (1977). The Lawyers’ Committee has also participated as amicus curiae in other significant voting rights cases in this Court, see, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986) and City o f Mobile v. Bolden, 446 U.S. 55 (1980). American Civil Liberties Union and New York Civil Liberties Union The American Civil Liberties Union (ACLU) is a nation wide, nonprofit, nonpartisan organization with nearly 300,000 members dedicated to the principles of liberty and equality embodied in the Constitution. The New York Civil Liberties Union is its statewide affiliate. Since its founding in 1920, the ACLU has sought to ensure that people whose constitu tional or statutory rights have been denied by the government or by government officials have an effective means of redress. The ACLU has participated directly or as amicus curiae in many of the cases in this Court concerning voting and/or equal rights. 1 Letters of consent to the filing of this brief have been lodged with the Clerk of the Court pursuant to Rule 37.3. 2 American Jewish Committee The American Jewish Committee (AJC) is a national or ganization that was founded in 1906 to protect the civil and religious rights of Jews. AJC has always believed that these rights can be secure for Jews only when the rights of Ameri cans of all faiths, races and ethnic backgrounds are equally secure. That is why AJC strongly believes that the census undercount must be corrected. Unless it is corrected, the con stitutional rights of those not counted, disproportionately black and Hispanic residents of large cities, remain violated. Correcting the undercount is necessary to cure this egregious violation. NAACP Legal Defense and Educational Fund, Inc. The NAACP Legal Defense and Educational Fund, Inc. is a nonprofit organization under § 501(c)(3) of the Internal Revenue Code, which exists to provide free legal representa tion to African Americans and others who are subject to dis crimination in violation of the United States Constitution and other laws. Since its establishment in 1940, it has developed a reputation for expertise in civil rights litigation through the many cases in which it has provided representation, includ ing Brown v. Bd. o f Educ., 341 U.S. 483 (1954) (school de segregation); Katzenbach v. McClung, 379 U.S. 294 (1964); Allen v. State Bd. o f Elections, 393 U.S. 544 (1969) (voting rights); Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402 U.S. 1 (1971) (school desegregation); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (employment discrimination); White v. Regester, 422 U.S. 935 (1975) (voting rights); City o f Mo bile v. Bolden, 446 U.S. 55 (1980) (voting rights); Thornburg v. Gingles, 478 U.S. 30 (1986) (voting rights). See also NAACP v. Button, 371 U.S. 415, 422 (1963) (describing Le gal Defense Fund as a “ ‘firm’ . . . which has a corporate repu tation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litiga tion”). 3 Puerto Rican Legal Defense and Education Fund, Inc. Since its inception in 1972, the Puerto Rican Legal De fense & Education Fund, Inc. (PRLDEF) has worked to po litically empower the Puerto Rican and Hispanic community. PRLDEF has represented Latinos in many cases protecting and furthering their voting rights. The issues presented in this appeal concerning the census undercount are central to protecting the constitutional and statutory rights of the Latino community. The underrepresentation of Latinos in Congress will never be fully addressed until the undercount of Latinos by the census is remedied. STATEMENT OF CASE Since its inception, the decennial census has historically undercounted the number of people in the United States. It has also historically undercounted racial and ethnic minori ties at a greater rate than non-minorities. For at least the last five censuses, the historic undercount of minorities has been well documented and has continued, largely unchanged, de cade after decade. Currently, certain minorities—specifically, African-Americans, Hispanics and American-Indians—are being undercounted at a rate twice that of whites. The pro tracted and sophisticated efforts of the Census Bureau and this litigation were undertaken in an effort to prevent another undercount in the 1990 census, or, if prevention was impos sible, to ensure that a reliable method was developed and uti lized to correct that undercount. By the spring of 1987, the Bureau of the Census devel oped a method by which the decennial census could be ad justed to correct the undercount. The parties agree that the method, known as the Post-Enumeration Survey, or PES method, increases the numerical accuracy of the census and alleviates the undercounting of minorities. The disputed ques tion is whether the PES method is at least as distributively accurate as the unadjusted census. The Director of the Cen sus Bureau, the agency that conducts the decennial census, recommended to the Secretary of Commerce that, because of 4 the adjusted census’ increased accuracy, the adjustment method in calculating the 1990 census should be used. She was joined in this recommendation by a majority of the Undercount Steering Committee and other experts. Notwithstanding the recommendation of the Census Bu reau, the then-Secretary of Commerce, Robert Mosbacher, refused to adjust the census. He based his decision on a se ries of conclusions. He conceded that the adjustment would improve numerical accuracy and reverse the historically skewed undercount of racial and ethnic minorities. He ques tioned the improvements that would be achieved in distribu tive accuracy by adjustment. His final conclusion was that the proponents of adjustment—the vast majority of the Cen sus Bureau experts—had not met their burden of proving the superiority of the adjustment. Thus, the 1990 census as pre sented to the President failed to account for more than 5 mil lion persons, including 5% of the country’s African-Ameri cans, Hispanics and American-Indians. The District Court, applying a deferential standard, did not explicitly state which method would be most accurate, but implied that it agreed with the Census Bureau experts and stated that if called upon to review the issue de novo would order adjustment. City o f New York v. U.S. Dept, o f Commerce, 822 F. Supp. 906, 928 (E.D.N.Y. 1993). The Court of Appeals concluded that the record showed that the adjusted census would improve nu merical accuracy, cure the undercount, and would not, at least, hinder distributive accuracy. City o f New York v. U.S. Dept, o f Commerce, 34 F.3d 1114, 1130-31 (2d Cir. 1994). Accord ingly, it remanded the case to the District Court to review the Secretary’s decision not to use the PES method under a non- deferential standard. SUMMARY OF ARGUMENT Equal representation is the foundation of our representa tive democracy. The decennial census is an essential compo nent of the right to equal representation because it is the ba sis for the apportionment of members to the House of Repre 5 sentatives and the drawing of state and local representative districts. Because the census is determinative of equality of voting rights, Art. I, § 2 requires a decennial census that is as accurate as practicable. Thus, the issue presented to this Court is whether the Secretary of Commerce’s decision regarding the census, one that impacts directly on the one-person, one- vote principle that this Court has fiercely protected, will be subject to meaningful judicial review. Amici argue that the census is of such critical importance that its accuracy cannot be left solely to the discretion of the political branches. It must be subject to a greater degree of judicial scrutiny than the “arbitrary and capricious” standard employed by the District Court. To subject the accuracy of the census to meaningful judicial review means that, on re mand, the District Court should determine whether the Secre tary acted in objective good faith to ensure a census that is as accurate as practicable. Petitioners argue that such a degree of judicial review is not necessary because the Secretary determined that there was no violation of the constitutional right to equal representa tion, since, in his view, the adjusted census did not increase distributive accuracy. Amici argue that this critical decision affecting constitutional rights should not be left to the Secre tary alone to decide. Petitioners urge the Court to create a rule of deference so generous as to make the S ecretary’s decisions largely unreviewable. Amici contend that any census requires value laden decisions that will have a significant effect on the ac curacy of any count. There are three reasons why the courts should be involved in ensuring accuracy. First, the courts’ role in analogous contexts shows that the courts can and have proven successful in counterbalancing the majoritarian im pulses of the political branches. Prior to Baker v. Carr, 369 U.S. 186 (1962) and Reynolds v. Sims, 377 U.S. 533 (1964), redistricting decisions by then majoritarian rural legislators failed to sufficiently protect the interests of those living in suburban and urban areas. The involvement of the courts has been critical, and successful, in abolishing those practices. 6 Second, there is a long-standing history of majoritarian branches of government tolerating an undercount of certain minority citizens. In the census counts, without judicial re view, decisions by the executive branch failed to sufficiently protect the interests of blacks, Hispanics and Native Ameri cans. The political branches of government, after five or more decades, have yet to adopt a corrective methodology. Third, because all methodologies, whether using adjusted numbers or unadjusted numbers, contain a myriad of value judgments often masked as “technical,” the most effective method of assuring that a count is done as accurately and as value free as possible is to expose the decisions of the political branch to the searching inquiry provided by cross examination and court review. This Court has long required the government to attempt in good faith to provide the constitutional requirement of equality of representation in a manner that is as accurate as practicable. Because the census directly bears on equal rep resentation, the political branches delegated with the author ity to undertake the census must also attempt in good faith to make it as accurate as practicable. Notwithstanding Petition ers’ assertions to the contrary, neither Amici nor Respondents are demanding a mathematically precise census or the adop tion of impractical methods of calculating the census. How ever, if the Secretary has at his disposal a practicable method to accurately calculate the census, which also alleviates the historic undercounting of minorities, and fails to adopt such a method, his action cannot be deemed to have been taken in good faith, regardless of his subjective intent. It is undis puted that the PES methodology is practicable and that it cor rects the historic undercount of racial and ethnic minorities. What is left for the lower court to decide is whether it pro vides the most accurate census. Thus, the Court should af firm the Court of Appeals’ remand of this case to the District Court to determine if the Secretary chose the method that pro vides for the most accurate census. The census data forms the crux of our representational government. It is also used to determine a variety of other 7 matters affecting the distribution of resources and opportuni ties. For these reasons, an accurate census is of fundamental importance. It is particularly critical for racial and ethnic m inorities, groups that h is to rica lly have been underrepresented in the political process and which are most in need of sufficient representation and funding. To permit the Secretary’s decision not to adjust the census to stand with out meaningful judicial review is to acquiesce in the devalu ation of certain members of our society. This Court must not permit the continued diminishment of any person’s worth in this manner. I BECAUSE THE DECENNIAL CENSUS DIRECTLY IMPACTS ON FUNDAMENTAL CONSTITUTIONAL RIGHTS, THE SECRETARY’S DECISION MUST BE SUBJECT TO MEANINGFUL JUDICIAL REVIEW.2 A. Because the Decennial Census Directly Affects the Right to Equal Representation, Art. I, § 2 Requires A Census That Is As Accurate As Practicable The appropriate method by which to determine the most accurate decennial census of the nation’s population directly impacts on the fundamental right to equal representation, a right that forms the very core of this country’s democracy. Article I, section 2 of the United States Constitution requires allocation of Representatives among the several States “ac cording to their respective numbers.” This rule of apportion ment was reached after lengthy debate at the Constitutional 2 Amici agree with the position of Respondents that the challenge to the Secretary’s decision not to use the adjusted census is justiciable, the Census Act does not bar statistical adjustment of the census, and there is no issue with respect to standing, for the reasons enumerated by the District Court and Court of Appeals. See also Franklin v. Massachusetts, 112 S. Ct. 2767, 2776 (1992) (“Constitutional challenges to apportionment are justiciable”). Convention of 1787 at which it was decided that a democratic allocation of political power was the only means of establish ing a legitimate government. As James Madison succinctly declared, “If the power is not immediately derived from the people, in proportion to their numbers, we may make a paper confederacy, but that will be all.” 3 The Records of the Fed eral Convention of 1767 (Farrand ed. 1911) 14; see also Wesberry v. Sanders, 376 U.S. 1, 10 (1964). A representative branch of the legislature was therefore created, with the pro viso that because the House “should represent ‘people,’ . . . in allocating Congressmen, the number assigned to each State should be determined solely by the number of the State’s in habitants.” Wesberry, 376 U.S. at 13. To ensure that the House of Representatives would be fairly apportioned among the States on a current basis, a pe riodic census was proposed and adopted into the Constitu tion. Art. I, § 2, cl. 3; see also Wesberry, 376 U.S. at 13 (not ing that Framers endorsed proposal of periodic census as means of “assuring that ‘numbers of inhabitants’ should al ways be the measure of representation in the House of Repre sentatives”). Accordingly, Art. I, § 2, as amended by the Four teenth Amendment, requires “counting the whole number of persons in each State” to apportion the correct number of Rep resentatives. The census was employed to guarantee that en trenched interests in the House would not obstruct necessary reapportionment. Franklin v. Massachusetts, 112 S. Ct. 2767, 2771 (1992) (quoting S. Rep. No. 2, 71st Cong., 1st Sess., 2- 3 (1929)) (“The need for [an automatic census] is confessed by the record of the past nine years during which Congress has refused to translate the 1920 census into a new appor tionment. . . . As a result, great American constituencies have been robbed of their rightful share of representation.”). In our representative democracy, the complement to the equal apportionment of Representatives among the States is the equal apportionment of Representatives within a State. Equal representation cannot be had if the distribution of Rep resentatives within a State is not equally divided because each person’s vote would not have equal power. See Wesberry, 376 9 U.S. at 7-8 (in striking down apportionment of congressional seats based on wildly divergent districts, Court noted that the “Constitution’s plain objective was that of making equal rep resentation for equal numbers of people the fundamental goal”). The decennial census directly impacts upon the right to equal representation, embodied in the one-person, one-vote rule, because it is the basis upon which congressional dis tricts within a state are drawn. The one-person, one-vote prin ciple, which this Court has jealously guarded, is acutely af fected by a less than accurate census because the distribution of Representatives within a State will not be accurately made. See Karcher v. Daggett, 462 U.S. 725, 738 (1983) (because the census count is the best population data available, “it is the only basis for good faith attempts to achieve population equality”). The danger that inaccuracies in the census will result in unequal congressional districts within a State is particularly acute in states with districts that have a high concentration of minority residents, as the census severely undercounts minori ties by as much as 5 percent. This places the burden of underrepresentation squarely on the shoulders of those per sons who have the least power in the political process and consequently the greatest need for adequate representation. Furthermore, in such a district, the votes of the citizens would not have weight equal to that of other districts, and the con stitutional goal of equal representation for equal numbers would not be met. As this Court noted in Reynolds v. Sims, the “right of suffrage can be denied by . . . dilution of the weight of a citizen’s vote just as effectively as by wholly pro hibiting the free exercise of the franchise.” 377 U.S. 554, 555 (1964). Because the decennial census mandated by the Constitution lies at the heart of our representative democracy, Art. I, § 2 re quires that the decennial census be as accurate as practicable. See Franklin, 112 S. Ct. at 2785 (Stevens, J., concurring) (noting that the statutory command of Art. I, § 2 “embodies a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the 10 apportionment”); Karcher, 462 U.S. at 731 (“Adopting any stan dard other than population equality, using the best census data available, would subtly erode the Constitution’s ideal of equal representation.”). (Emphasis added).3 Only an accurate census can ensure the right to equal representation through the one-per son, one-vote principle. The close relationship between the cen sus and the allocation of Representatives among the states and within a state therefore requires that decisions affecting the cen sus be held to the same good-faith standard as those bearing on congressional districting. As the Court of Appeals declared be low, the “federal government, no less than the states, is required to make a good-faith effort to achieve the Constitution’s plain objective of equal representation.” City o f New York v. U.S. Dept, of Commerce, 34 F.3d at 1129. B. An Accurate Decennial Census Is Crucial Because It A f fects The A llocation O f Federal Funds, Resources and Opportunities An accurate decennial census is also of fundamental im portance because census data is used for myriad purposes, which, although not directly implicating constitutional rights, are essential. These purposes include the allocation of fed eral funds to states, cities and school districts for education, health, transportation, housing, community services, and job training. The census is also used to determine the just imple mentation of federal programs.4 It constitutes “one of the most important sources of U.S. data for basic and applied social 3 The Federal Petitioners concede this requirement in their brief when they state that Congress has a “constitutional responsibility to make an actual enumeration of the population.” (Brief of Federal Petitioners, at 28). 4 Some instances where census data are used for federal funding and pro grams include the following: • The Voting Rights Act requires the collection of census data to determine the implementation of bilingual voting pro grams to protect the rights of language minorities. (Footnote continues on following page) 11 research”; areas of research that utilize census data include race relations, the criminal justice system, education, pov erty and the aging of the population.5 In addition, census data serves many business uses, including the determination (Footnote continued from preceding page) • The Elementary and Secondary Education Act specifically mandates that the U.S. census collect data on the poverty status of school-age children for the purpose of allocating funds to school districts. • The Bureau of Economic Analysis relies on census data to develop income estimates for regional, state and local ar eas, which estimates, in turn, are used in funding formulas that allocate federal funding for Medicaid and AFDC. • The Department of Agriculture obtains census data by state and county to determine the number of women, children and infants whose families have incomes below the maxi mum income limit for the Special Supplemental Nutrition Program for Women, Infants and Children (WIC). • The Department of Justice, Immigration and Naturalization Service uses census data to plan and evaluate immigration policy. • The Equal Employment Opportunity Commission uses cen sus labor force data to analyze statistical evidence in class action charges of employment discrimination. • The Department of Transportation uses census data to moni tor compliance with the Federal Transit Act and the Ameri cans with Disabilities Act. • The Department of Agriculture uses census data to allocate grant funds and determine loan interest rates for assistance programs. Modernizing the U.S. Census 24, 444 (Barry Edmonston and Charles Schultze, eds., National Research Council, Committee on National Statis tics). This list represents only a fraction of the federal funds and federal programs that rely on the decennial census data. 5 Id. at 259. 12 of where to construct hospitals and health clinics and the placement within communities of banks, other financial in stitutions, and community service providers.6 Since the decennial census affects the allocation of fed eral and state funds, resources and opportunities, it is impera tive that the census be as accurate as practicable. C. Meaningful Review By The Courts Is Necessary To En sure That The Most Accurate Means o f Computing The Census Is Used Art. I, § 2’s “high standard of justice and common sense” — “equal representation for equal numbers of people,” Karcher, 462 U.S. at 730 — is breached when the census by which Representatives are to be apportioned is found to be inaccurate. Because an accurate census directly bears on the fundamental constitutional right of equal representation, criti cal decisions concerning its accuracy must be subject to mean ingful judicial review. As the Court of Appeals correctly noted, the Secretary’s de cision not to use the adjusted census should be reviewed under a more meaningful standard than the arbitrary and capricious test. Rather, because an accurate census represents the keystone to our constitutional democracy and to the “equal right to vote” se cured by Article I, § 2, the Secretary’s decision must be subjected to an exacting standard of judicial scrutiny. As the long history of cases involving apportionment and the right to vote has proven, this Court has repeatedly seen that political branches do yield to the temptation to undercount those not in the majority, whether geographically or ethnically. The Court has therefore indicated that deference to political branches is not warranted when a con stitutional right is at stake. See, e.g., Baker v. Carr, 369 U.S. 186 (1962) (rejecting Tennessee legislators’ contention that appor tionment should not be reviewed by the courts); Gray v. Sanders, 372 U.S. 368 (1963) (invalidating Georgia primary system which gave greater weight to rural votes than urban votes); Wesberry v. Sanders, 376 U.S. 1 (1964) (confirming concept that right to vote 6 Id. at 292-300. 13 is “too important in our free society to be stripped of judicial protection” by precluding judicial review of state congressional apportionment schemes); Reynolds v. Sims, 377 U.S. 533 (1964) (striking down an Alabama scheme that created wildly disparate state legislative districts); Kirkpatrick v. Preisler, 394 U.S. 526 (1969) (holding that Missouri congressional redistricting plan creating disparate districts did not meet the “as nearly as practi cable” constitutional standard); Karcher v. Daggett, 462 U.S. 725 (1983) (rejecting New Jersey’s congressional districting plan in which districts varied by size by less than 1% because the plan failed to meet a “good-faith” standard of equality). This Court’s insistence on a judicial role in these cases has been phenomenally successful in protecting the right of all people to an equal say in government. These cases demonstrate that independent review by the Court is essential for the meaningful implementation of im portant constitutional rights. See also Sable Communications v. FCC, 492 U.S. 115, 129 (1989); Landmark Communica tions v. Virginia, 435 U.S. 829, 843 (1978). As explained above, because the decennial census is the basis upon which states create congressional districts, an inaccurate census af fects the one-person, one-vote principle just as acutely as when districts are widely skewed or when reapportionment is re fused. Because equal representation cannot be had without an accurate census, this Court should not recoil from exercis ing its independent review here, just as it did not hesitate to intervene to ensure the continued health of the one-person, one-vote principle in the redistricting cases. The one-per son, one-vote mandate will have little meaning if the under lying census is not as accurate as practicable. There is an additional, powerful reason for meaningful review in this case. The decision by the Secretary of Com merce has a serious and adverse impact upon racial and eth nic minorities—groups that have traditionally needed judi cial protection from the majority. Undercounting certain mem bers of the population—in essence, denying their existence— is especially noxious when it disproportionately and nega tively affects racial and ethnic minorities who have histori 14 cally been prevented from full participation in the political process. H.R. Rep. No. 439, 89th Cong., 1st Sess., report at 1965 U.S.C.C.A.N. 2437 (legislative history of Voting Rights Act of 1965 noted long history of discrimination against Af rican-Americans in the political process and the need for ju dicial intervention in striking down discriminatory policies due in part to the intransigence of elected officials). Within our constitutional system, the judiciary has long served as the institution designed to counter and to ameliorate the excesses of pure majoritarianism. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982) (invalidating state law denying education to chil dren of illegal aliens); Shapiro v. Thompson, 394 U.S. 618 (1969) (striking state law requiring recipients of welfare as sistance to reside in state for at least one year). So under stood, this Court has long recognized the responsibility of the judiciary to protect minority interests in circumstances where the decisions of the political branches of government skew outcomes unfairly in the interests of the dominant majority. See Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sand ers, 376 U.S. 1, 10 (1964); Gray v. Sanders, 372 U.S. 368 (1963) (invalidating Georgia primary system giving greater voting power to rural residents than urban residents); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (invalidating ger rymandering of districts favoring white majority). While equal protection claims challenging racial classifi cations require proof of intentional discrim ination, see Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); Washington v. Davis, 426 U.S. 229 (1976), and no such claim is presented here, this Court need not be totally blind to the disproportionate undercount of African-Americans, Hispan- ics, and Native Americans for purposes of evaluating the Ar ticle 1, § 2 claim.7 While the right to a census that is as “ac curate as practicable” is one of general application, its trans 7 Amici do not argue that the Court should depart from its established ap proach to equal protection analysis for purposes of evaluating claims of racial discrimination. While the Court of Appeals referred to the racially (Footnote continues on following page) 15 gression has a particular impact upon minority groups. Al ready often submerged within the political process, minority groups bear other difficulties when they are not counted in the most effective manner in the census process. Judicial review is also required because the recipients and beneficiaries of federal funds and programs affected by the census are, to a large extent, racial and ethnic minorities. Thus, there is a danger that the use of a less than accurate census may deprive those most in need of funding and assis tance as well as dilute their voting power. Federal Petitioners have conceded that the census disproprotionately and negatively impacts on racial and eth nic minorities. The Secretary admitted that the census his torically has undercounted minorities to a far greater extent than for non-minorities; for African-Americans and Hispan- ics, the census undercounted the population more than twice as much as the undercount for whites. The Census Bureau clearly considered the undercount to be significant; as the Bureau Director declared in recommending adjustment to the decennial census, “[i]t is time to correct this historical prob lem [of undercounting minorities], . . .With the increasing diversity of the country . . . the problem could be larger in 2000.” The Secretary also admitted that the Bureau had cre ated a methodology that would finally end the historic undercount and provide a more accurate count of minorities in the United States. Undercounting the national population is a significant concern. As the Bureau Director stated in her recommenda tion to use the adjusted census, “not adjusting would be de nying that . . . 5 million persons exist. That denial would be a greater inaccuracy than any inaccuracies that adjustment may introduce.” When the undercount disproportionately affects (Footnote continued from preceding page) disproportionate impact of the failure to utilize the adjusted census, this case can be resolved under Article I, § 2. Thus, while minorities may have a particular interest in insuring that Art. I, § 2 is enforced, they need not make out a claim of discriminatory intent to protect that interest. 16 rac ial and ethnic m inorities who have long been underrepresented in the political process, it is particularly grave. That the government would choose not to employ a method that would correct the historic undercount simply to maintain a “200 year tradition of counting people” is offen sive and the message it imparts—minorities are not impor tant enough to be counted—must not be countenanced. The Federal Petitioners concede that meaningful judicial review would be required if the Secretary’s decision had a negative impact on the constitutional guarantee of equal rep resentation: “[ajbsent unequivocal evidence that an adjust ment would have improved the distributive accuracy of the census, there is no constitutional basis upon which a court could set aside the Secretary’s determination that no adjust ment was warranted.” (Brief at 24). However, federal appel lants contend that judicial review is not mandated here be cause no constitutional right was implicated. They base this argument on the Secretary’s decision that, in his view, dis tributive accuracy was not improved by adjusting the census and that therefore the right to equal representation was not affected. In effect, Petitioners would have this Court abdi cate its role of determining whether a constitutional violation occurred to the Secretary’s conclusion that no constitutional rights were violated. Amici disagree with this position for two reasons. First, Amici do not concede that the adjusted census would not improve distributive accuracy. The accu racy of the PES method is the question to be determined by the lower court on remand. More importantly, the determina tion of whether a constitutional right has been violated can not be left within the discretion of the political branches. Rather, that is precisely the type of issue for the courts to decide. The federal appellants also spend a great portion of their brief outlining the so-called technical questions that arise when adjustment is made in an effort to make them appear hopelessly technical and unfathomable by a non-statistician. The paradigmatic example of that effort is the discussion of “sm oothing,” the process by which the Bureau avoided 17 overadjusting. However, there was extensive testimony at trial about the “sm oothing” process and, contrary to the government’s suggestions, the District Court appeared per fectly capable of understanding the process and the assump tions on which it is based. More importantly, the government’s argument implicitly suggests that difficult technical questions arise only when the adjustment methodology is used. That is incorrect. Value judgments and technical issues are imbed ded in every decision made with respect to the use of the non- adjusted census. The government’s proposed distinction be tween redistricting cases and unadjusted census counts on the one hand, which the government asserts involve simple arith metic, and adjusted census counts on the other, which involves extremely technical questions, is both false and inappropri ate in constitutional analysis. The degree of protection af forded ought not to depend on the difficulty of the factual questions involved. The question is not whether technical questions abound or whether technical decisions can mask manipulation de signed to favor particular groups. The question is what pro cess is most likely to ensure that the manipulation does not occur and that facially technical decisions are not used ma~ nipulatively. In our view, meaningful judicial review is that process for three reasons. First, the open nature of court de cision-making, with public trials, will better deter manipula tion and guarantee accuracy than decisions made in private in executive offices. Second, the nature of court proceedings, with discovery and cross-examination, is particularly suited to teasing out and challenging hidden assumptions or masked manipulation. Third, the history of the failure of majoritarian executive and legislative branch decision-making in ensuring voting equality, and the success of court involvement in that context, demonstrates that courts have an important role to play in assuring that those branches of government do not ignore, or affirmatively manipulate, facts important to minori ties, whether racial and ethnic minorities, geographic minori ties, or others. 18 The Federal Petitioners attempt to steer this Court away from reviewing the Secretary’s decision by declaring that reso lution of the statistical dispute in this case “involves an exer cise of technical expertise that lies uniquely within the com petence of [the executive branch].” (Brief at 33). This argu ment is wrong for two reasons. First, courts routinely engage in technical analysis in resolving disputes of all kinds. Fur thermore, the Commerce Secretary, who is admittedly not a statistician, did not perform technical analyses himself but rather relied on the judgment of various experts in reaching his decision. Second, the Secretary did not rely on his own technical advisors, the Bureau of the Census (the agency em powered by Congress to conduct the census), in reaching his decision. Rather, he rejected the Bureau’s strong recommen dation in favor of the adjusted census and based his decision on a number of non-technical grounds, including the preser vation of the traditional method of census calculation. Thus, Petitioners’ argument that this conflict is too technical for courts to determine is belied by the Secretary’s own actions. When constitutional interests are at stake, courts must not abdicate their traditional responsibility of ensuring that those interests are protected. As this Court eloquently stated in Reynolds, “a denial of constitutionally protected rights de mands judicial protection; our oath and our office require no less of us.” 377 U.S. at 566, 84 S. Ct. at 1384. D. The District Court Must Determine Whether The Com merce Secretary Acted In Good Faith To Ensure A Census That Is As Accurate As Practicable The constitutional mandate set by Art. I, § 2 that equal representation be afforded for equal numbers requires an ob jective good faith effort by the political branches to achieve population equality as nearly as is practicable. Karcher, 462 U.S. at 730, 103 S. Ct. at 2658 (citing Kirkpatrick v. Preisler, 394 U.S. at 530-531, 89 S. Ct. at 1228, 1229). Because the decennial census, as discussed above, directly impacts upon the right to equal representation, Karcher’s good faith stan dard applies with equal force to the Secretary’s decisions con 19 cerning the census. The good faith standard is an objective one. In this context it would have been met only if the Secre tary chose a method of calculating the census that was as ac curate as practicable.8 Where there is a practicable method of accurately calculating the census, the Secretary must elect to use such a method. His decision not to does not meet the standard of good faith, regardless of his subjective intent. The good faith standard and the practicable accuracy re quirement are two sides of the same coin: they are concepts created in the recognition that precise mathematical precision in the equal representation context is impossible and that cer tain practical considerations have to be taken into account. See Karcher v. Daggett, 462 U.S. 725, 730 (1983); Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969); Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964). While there are clearly impractical methods of determining the census that could hypothetically result in a perfect count of the population, those methods are not required by Karcher’s good-faith standard, and Amici do not argue that the Secretary should consider them. Instead, Amici contend that because the Secretary was provided with an indisputably practicable alternative to the traditional means of taking the census, namely, the PES method, the only ques tion that remains in the good-faith analysis is whether the PES method provides the most accurate census. If it is determined by the District Court upon remand that the PES method pro vides a more accurate census, then the Secretary’s failure to use that method violated his good-faith obligation to ensure 7 Petitioners argue that Karcher’s good faith requirement is inapplicable to the census and apportionment process because disparities between State dis tricts would be of a “magnitude that would be unacceptable in the context of [intra]state districting policy.” (Brief at 40, n. 30). This argument is unten able. Neither the Court of Appeals nor Amici expect an absolutely precise census. What the appeals court held, and what Amici argue, is that the fed eral government must make a good-faith effort to achieve a census and ap portionment that is as accurate as possible. As the Court of Appeals de clared, “[t]he impossibility of achieving precise mathematical equality is no excuse for not making this mandated good-faith effort.” 34 F.3d at 1129. 20 equal representation and his decision not to use the adjusted census must be overturned. If it is determined that the PES method does not provide a more accurate census, then the Secretary acted in good faith in electing not to use it, because the unadjusted method provided a census that was as accu rate as practicable. Amici do not concede that the unadjusted census provides a more accurate count of the nation’s population. Further more, if the PES methodology provides at least as distribu- tively accurate a count as the unadjusted census and allevi ates the historic undercount of racial and ethnic minorities, the Secretary’s failure to use the adjusted census does not meet the good faith standard. The use of data that, by all accounts, historically undercounts racial and ethnic minorities is sim ply wrong. There is no rationale for its continued use if an equally accurate and more just method exists. 21 CONCLUSION For these reasons, this Court should affirm the Second C ircuit’s remand to the District Court for review of the Secretary’s decision not to use the adjusted census under the standards stated above. Dated: New York, New York December 8, 1995 Jonathan L. Greenblatt Counsel o f Record M argaret Hahn-DuP ont SHEARMAN & STERLING 153 East 53rd Street New York, New York 10022 (212) 848-4000 Paul C. Saunders, Co-Chair Herbert J. Hansell, Co-Chair N orman Redlich, Trustee Barbara R. Arnwine Thomas J. Henderson LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1450 G Street, N.W., Suite 400 Washington, DC 20005 (202) 662-8600 Christopher A. Hansen Steven R. Shapiro AMERICAN CIVIL LIBERTIES UNION FOUNDATION 132 West 43rd Street New York, New York 10036 (212) 944-9800 Respectfully submitted, Samuel Rabinove AMERICAN JEWISH COMMITTEE 165 East 56th Street New York, New York 10022 (212)751-4000 Elaine R. Jones Director-Counsel Theodore M. Shaw Charles Stephen Ralston NAACPLEGAL DEFENSE AND EDUCATIONAL FUND, INC. 99 Hudson Street 16th Floor New York, New York 10013 (212) 219-1900 Arthur N. E isenberg NEW YORK CIVIL LIBERTIES UNION 132 West 43rd Street New York, New York 10036 (212)382-0557 COUNSEL PRESS 11 EAST 36TH STREET, NEW YORK, NEW YORK 10016 (212) 685-9800; (516) 222-1021; (914) 682-0992; (908) 494-3366; (716) 852-9800; (315) 423-9800 (135567)