Wisconsin v. City of New York Brief Amicus Curiae in Support of Respondents

    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 
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LIBERTIES UNION 
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