Lampkin v. Connor Joint Appendix
Public Court Documents
April 28, 1963 - April 19, 1965

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Brief Collection, LDF Court Filings. Lampkin v. Connor Joint Appendix, 1963. 83c54842-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a0be8894-8cfb-458d-9186-9d1cf208e12e/lampkin-v-connor-joint-appendix. Accessed April 22, 2025.
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JOINT APPENDIX 1 st t h e MnlUb States (Emtrt of Appeals F or th e D istrict of C olum bia N o . 19,383 DAISY E. LAMPKIN, et al, Imm. \t \ax : Appellants, y i JOHN T. CONNOR, Secretary of Commerce, et al., Appellees. Appeal From an Order of the United States District Court for the District of Columbia INDEX TO JOINT APPENDIX PAGE Relevant Docket Entries .................................................. la Complaint ............................ —-...... -............. - .......... —..... 2 a Defendants’ Motion to Dismiss or, in the Alternative, For Summary Judgment ................................. -............ 23a Statement of Material Facts as to Which Defendants Contend There Is No Dispute .................................... 24a Affidavit of Richard M. Scammon ......-......... -........ ....... 25a Plaintiffs’ Opposition to Defendants’ Motion to Dis miss Or in the Alternative for Summary Judgment .. 31a Plaintiffs’ Statement of Genuine Issues Affidavit of Abram J. Jaffe ----------------- Opinion ............. -........... ...... ............ ...... Order ....... ................ -................................... Notice of Appeal ................. —................. 32a 33a 58a 78a 79a Relevant Docket Entries No. 1355-63 Daisy L a m p k in , et al., -v.- Plaintiffs, J ohn T. Connor, Secretary of Commerce, et al., Defendants. 4/28/63 Filed complaint. 2 / 4/64 Filed defendants’ motion to dismiss or in the alternative for summary judgment; statement of material facts; and affidavit of Richard M. Scammon. 11/18/64 Filed plaintiffs’ opposition to defendants’ mo tion to dismiss or in the alternative for summary judgment; statement of genuine issues; and affi davit of Abram J. Jaffe. 1/27/65 Motion to dismiss complaint or in the alternative for summary judgment argued and taken under advisement. 2/10/65 Filed consent order substituting John T. Connor and A. Ross Eckler as party defendants for Luther Hodges and Richard M. Scammon. 3/29/65 Filed opinion and order granting defendants’ motion to dismiss. 4/19/65 Filed plaintiffs’ notice of appeal. 2a Complaint (Filed: May 28, 1963) IN THE UNITED STATES DISTRICT COURT F ob th e D istrict of C olumbia Civil Action No. 1355-63 D aisy E . L a m pk in 2519 Webster Avenue Pittsburgh, Pennsylvania N ath an iel D en m an Box 689 Falmouth, Massachusetts L ucille D en m an Box 689 Falmouth, Massachusetts R. S im s A llison 415 N. 5th Street Columbia, Missouri E. D avis A llen 117 E. Jefferson Sedalia, Missouri W illiam A. Ross 500 Lafayette Jefferson City, Missouri I n a B oon 5673 Enright St. Louis, Missouri A rth u r K ennedy 4283 West Easton St. Louis, Missouri P earlie E vans 4853 Lee Avenue St. Louis, Missouri 3a M aurice B oseneield 55 Beach Road Glencoe, Illinois \V. N. D aniel 415 W. Englewood Chicago, Illinois C harles L ucas 1383 East Boulevard Cleveland, Ohio T heodore M. B erry 704 N. Crescent Cincinnati, Ohio J. E dward A tkin son 1214 South St. Andrews Place Los Angeles, California J ames H. Garrott 2311 Hyperion Street Los Angeles, California J ohn L undy 1607 Halifax Street Emporia, Virginia R aymond H arris P. 0. Box 763 Emporia, Virginia H enry F ran k lin M ason Route 1, Box 14 Emporia, Virginia N ephus H omus B anks Route 1, Box 91 Skippers, Virginia D en n is G illus Box 227 Emporia, Virginia Complaint 4a L aura M cG ee Box 287, Route 1 Greenwood, Mississippi Clarence A. R obinson Box 287, Route 1 Greenwood, Mississippi W illiam M c G ee 202 Palace Street Greenwood, Mississippi M ilton H. H ancock 406 West Taft Street Greenwood, Mississippi Carole L. T urbaud 3121 Pauger New Orleans, Louisiana, Complaint Plaintiffs, L u th er H odges, Secretary of Commerce, United States Department o f Commerce, Washington, D. C., R ichard M. S cam m on , Director of the Bureau of the Census, Department of Commerce, Washington, D. C., Defendants. C O M P L A I N T ACTION FOR DECLARATORY RELIEF I A. The jurisdiction of this Court is invoked pursuant to 11 D. C. Code §306. This is an action in equity against officers of the United States, to be found in the District of Columbia for a declaration that they should perform duties owed to : 5a (1) plaintiff Daisy E. Lampkin, a citizen of the State of Pennsylvania; plaintiffs Nathaniel Denman and Lucille Denman, citizens of the State of Massachusetts; plaintiffs R. Sims Allison, E. Davis Allen, William A. Ross, Ina Boon, Arthur Kennedy and Pearlie Evans, citizens of the State of Missouri; plaintiffs Maurice Rosenfield and W. N. Daniel, citizens of the State of Illinois; plaintiffs Theodore M. Berry and Charles Lucas, citizens of the State of Ohio; and plaintiffs James II. Garrott and J. Edward Atkinson, citizens of the State of California, by reason of rights secured by §2 of the Fourteenth Amendment to the Con stitution of the United States, and by 2 U.S.C., §6, each of which provides for the reduction of the number of repre sentatives apportioned to any State which denies or abridges the right to vote, and by further reason of rights secured by the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amend ment to the Constitution of the United States; (2) plaintiffs John Lundy, Raymond Harris, Henry Franklin Mason, Nephus Homus Banks, and Dennis Gillus, citizens of the State of Virginia; plaintiffs Laura McGee, Clarence A. Robinson, William McGee, and Milton H. Han cock, citizens of the State of Mississippi; and plaintiff Carole L. Tureaud, a citizen of the State of Louisiana by reason of rights secured by §2 of the Fourteenth Amend ment to the Constitution of the United States and by 2 U.S.C., §6, each of which provides for the reduction of the number of representatives apportioned to any State which denies or abridges the right to vote. B. The jurisdiction of this Court also is invoked pur suant to 28 U.S.C., §1343 to redress the deprivation under color of state law, statute, ordinance, regulation, custom, Complaint 6a and usage of rights, privileges, and immunities secured to all plaintiffs by §2 of the Fourteenth Amendment and 2 U.S.C., §6, and also secured to those plaintiffs who are citizens of the States of Pennsylvania, Massachusetts, Mis souri, Illinois, Ohio and California by the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution of the United States. II A. The plaintiffs bring this action on their own behalf and on behalf of all others similarly situated pursuant to Rule 23(a)(3) of the Federal Rules of Civil Procedure. B. There are common questions of law and fact affecting the rights of plaintiff Daisy E. Lampkin of Pennsylvania, plaintiffs Nathaniel Denman and Lucille Denman of Massa chusetts, plaintiffs R. Sims Allison, E. Davis Allen, W il liam A. Ross, Ina Boon, Arthur Kennedy and Pearlie Evans of Missouri, plaintiffs Maurice Rosenfield and W. N. Daniel of Illinois, plaintiffs Theodore M. Berry and Charles Lucas of Ohio, and plaintiffs James EL Garrott and J. Ed ward Atkinson of California, and all other citizens of their respective states whose votes have been debased or diluted by the Congressional apportionment which, contrary to §2 of the Fourteenth Amendment, 2 U.8.C., §6 the equal pro tection clause of the Fourteenth Amendment and due process clause of the Fifth Amendment allocates repre sentatives among the States without accounting for the denial and abridgement of the right to vote by some of them as hereinafter set forth. C. There are common questions of law and fact affecting the rights of plaintiffs John Lundy, Raymond Harris, Complaint Henry Franklin Mason, Nephus Homus Banks, and Dennis Gillus of Virginia, plaintiffs Laura McGee, Clarence A. Robinson, William McGee and Milton H. Hancock of Mis sissippi, and plaintiff Carole L. Tureaud of Louisiana, and all other citizens of their respective States who have had their right to vote denied or abridged and who have a right to be protected by the sanctions of §2 of the Four teenth Amendment and 2 U.S.C., §6. D. The classes which plaintiffs represent are so numer ous as to make it impractical to bring them all before this Court. A common relief is sought. The interests of said classes are adequately represented by plaintiffs. I l l A. This is an action for a declaratory judgment pur suant to 28 U.S.C., §§2201 and 2202. There is an actual controversy now existing between the parties to this action as to which plaintiffs seek the judgment of this Court. Plaintiffs seek a definition and declaration of the legal rights and relations of the parties with respect to the question: Whether §2 of the Fourteenth Amendment to the Con stitution of the United States; the equal protection clause of the Fourteenth Amendment and due process clause of Fifth Amendment to the Constitution of the United States; 2 U.S.C., §6; 2 U.S.C., §2a; and 13 U.S.C., §§4, 5, 11, 21, 141 require defendant Hodges and defendant Scammon to take necessary steps to prepare and to transmit a statement showing the number of representatives to which each State is entitled as required by §2 of the Fourteenth Amendment which provides as follows: 7a Complaint 8a Representatives shall he apportioned among the sev eral States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judi cial officers of a State, or the members of the Legis lature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. IV A. Plaintiff Daisy Lampkin is a citizen of the State of Pennsylvania and of the United States, over 21 years of age. She is, and has been, a duly registered voter for all general elections in the State of Pennsylvania. B. Plaintiffs Nathaniel Denman and Lucille Denman are citizens of the State of Massachusetts and of the United States, over 21 years of age. They are, and have been, duly registered voters for all general elections in the State of Massachusetts. C. Plaintiffs R. Sims Allison, E. Davis Allen, William A. Ross, Ina Boon, Arthur Kennedy and Pearlie Evans are citizens of the State of Missouri and the United States, over 21 years of age. They are, and have been, duly reg C omplaint 9a istered voters for all general elections in the State of Missouri. D. Plaintiffs Maurice Rosenfield and W. N. Daniel are citizens of the State of Illinois and of the United States, over 21 years of age. They are, and have been, duly reg istered voters for all general elections in the State of Illinois. E. Plaintiffs Theodore M. Berry and Charles Lucas are citizens of the State of Ohio and of the United States, over 21 years of age. They are, and have been, duly reg istered voters for all general elections in the State of Ohio. F. Plaintiffs James H. Garrott and J. Edward Atkinson are citizens of the State of California and of the United States, over 21 years of age. They are, and have been, duly registered voters for all general elections in the State of California. G. Plaintiffs John Lundy, Raymond Harris, Henry Franklin Mason, Nephus Homus Banks and Dennis Gillus are Negro citizens of the State of Virginia and of the United States, over 21 years of age. (1) Plaintiff John Lundy is and was in 1960 and 1962 in all respects eligible to vote in the State of Virginia except that it requires plaintiff (by the Constitution of Virginia, Section 20) to make application to register in his own handwriting which he is unable to do and therefore plain tiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future gen eral elections in the State of Virginia. Complaint 10a C omplaint (2) Plaintiff Raymond Harris is and was in 1960 and 1962 in all respects eligible to vote in the State of Virginia except that it requires the payment of a poll tax in order to vote at general elections which plaintiff has not paid in 1963 and therefore plaintiff is unable to vote in the next general election to be held in the State of Virginia. (3) Plaintiff Henry Franklin Mason is and was in 1960 and 1962 in all respects eligible to vote in the State of Virginia except that it requires plaintiff (by the Consti tution of Virginia, Section 20) to make application to reg ister in his own handwriting which he is unable to do and it requires the payment of a poll tax in order to vote at general elections which plaintiff has not paid and is finan cially unable to pay and therefore plaintiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future general elections in the State of Virginia. (4) Plaintiff Nephus Homus Banks is and was in 1960 and 1962 in all respects eligible to vote in the State of Virginia except that it requires plaintiff (by the Constitu tion of Virginia, Section 20) to make application to register in his own handwriting which he is unable to do and there fore plaintiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future general elections in the State of Virginia. (5) Plaintiff Dennis Grillus is and was in 1960 and 1962 .in all respects eligible to vote in the State of Virginia except that it requires plaintiff (by the Constitution of Virginia, Section 20) to make application to register in his own handwriting which he is unable to do and the State of Virginia requires the payment of a poll tax in order to vote at general elections which plaintiff has not paid and Complaint therefore plaintiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future general elections in the State of Virginia. H. Plaintiffs Laura McGee, Clarence A. Robinson, Wil liam McGee and Milton H. Hancock are Negro citizens of the State of Mississippi and of the United States, over 21 years of age. (1) Plaintiff Laura McGee is and was in 1960 and 1962 in all respects eligible to vote in the State of Mississippi except that it requires plaintiff to pass a Constitutional interpretation test in order to vote which plaintiff was un able to pass and it requires the payment of a poll tax in order to vote which plaintiff has not paid and therefore plaintiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future general elections in the State of Mississippi. (2) Plaintiff Clarence A. Robinson is and was in 1960 and 1962 in all respects eligible to vote in the State of Mississippi except that it requires plaintiff to pass a Con stitutional interpretation test in order to vote which plain tiff was unable to pass and it requires the payment of a poll tax in order to vote winch plaintiff has not paid and therefore plaintiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future general elections in the State of Mississippi. (3) Plaintiff William McGee is and was in 1960 and 1962 in all respects eligible to vote in the State of Mis sissippi except that it requires plaintiff to pass a Constitu tional interpretation test in order to vote which plaintiff was unable to pass and it requires the payment of a poll tax in order to vote which plaintiff has not paid and there 12a fore plaintiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future general elections in the State of Mississippi. (4) Plaintiff Milton H. Hancock is and was in 1960 and 1962 in all respects eligible to vote in the State of Mis sissippi except that it requires plaintiff to pass a Consti tutional interpretation test in order to vote which plaintiff was unable to pass and it requires the payment of a poll tax in order to vote which plaintiff has not paid and there fore plaintiff was unable to register to vote in the 1960 and 1962 general elections and will be unable to vote in future general elections in the State of Mississippi. (5) The purpose and effect of the Constitutional inter pretation test, which plaintiffs Laura McGee, Clarence A. Robinson, William McGee and Milton H. Hancock did not pass is to deny and abridge the right to vote to Negro citizens on the basis of race. The test is administered, and was administered to plaintiffs Laura McGee, Clarence1 Robinson, William McGee and Milton Hancock in a dif ferent manner to Negroes than to whites. I. Plaintiff Carole L. Tureaud is a Negro citizen of the State of Louisiana and of the United States, over 21 years of age. She is in all respects eligible to vote in general elections in the State of Louisiana except that her right to vote has been denied and abridged by the requirement of the State of Louisiana that persons seeking to register to vote answer questions on a registration form without error of any kind, the purpose and effect of such require ment being to deny and abridge the right to vote to Negro citizens on the basis of race. Complaint 13a V A. Defendant Luther Hodges is Secretary of Commerce of the United States and he is to be found in the District of Columbia. He is charged with duties under law to take a decennial census of population of the United States for the purpose of apportioning Representatives in Congress and to report the tabulation of population as required for the apportionment of Representatives to the President of the United States. The Secretary of Commerce has been delegated duties by the President of the United States to compute the number of Representatives in Congress to which each State is entitled. A statement showing the number of Representatives in Congress to which each State is entitled has been and will be prepared under the direc tion of the Secretary of Commerce and transmitted to the President of the United States. B. Defendant Richard Scammon is Director of the Bu reau of the Census and he is to be found in the District of Columbia. He has been delegated duties by the Secretary of Commerce to take a census of population in each state of the United States every ten years as required for the apportionment of Representatives in Congress. The basic constitutional and statutory purpose of this census of population is to determine the number of Representatives in Congress to which each State is entitled. C. Plaintiffs allege that defendant Director of the Bu reau of the Census and his predecessors in office have been delegated duties by the Secretary of Commerce to prepare a statement showing the tabulation of population as re quired for apportionment of Representatives in Congress and the number of Representatives to which each State is Complaint 14a entitled under an apportionment by the method known as the method of equal proportions. Plaintiffs allege that the Director of the Bureau of the Census prepares such a state ment arid transmits same to the President of the United States or to the Secretary of Commerce for transmission to the President of the United States. The only duty of the President of the United States with regard to this state ment is to transmit it to the Congress. Upon receipt of this statement by Congress, the number of Representatives to which each State is entitled as reported therein becomes, pursuant to 2 U.S.C., §2a, the apportionment of Repre sentatives in Congress. Complaint VI Plaintiff Lampkin on February 28, 1963, wrote to de fendant Hodges complaining of the failure of the Depart ment of Commerce to take any action to carry out §2 of the Fourteenth Amendment and the laws of the United States in the face of widespread denial of the right to vote in many southern states. Plaintiff Lampkin pointed out that the Department of Commerce has not taken any action through the Census Bureau to obtain such information as to disfranchisement as would be necessary to enforce the law in this regard and requested that defendant Hodges advise her whether there is any present intention to take the necessary steps to enforce these provisions. VII In reply, plaintiff received a letter dated March 8, 1963, from defendant Scammon which stated: This is in reply to your letter of February 28 to Sec retary Hodges concerning Article 14, Section 2 of our Constitution. 15a Even though the Constitution provides for certain functions and activities, this does not necessarily in sure their being carried out unless Congress gives specific legislative authority. Even then, unless neces sary funds are appropriated by Congress for the spe cific activity, there is no way any government agency may proceed to carry out the necessary job. As you no doubt know, the funds appropriated to government agencies are available only to carry out the projects specifically described in the appropriation request. I appreciate your interest, and will inform you if there are any proposals concerning Article 14, Sec tion 2. VIII A. The Bureau of the Census last attempted to comply with the requirements of §2 of the Fourteenth Amendment in the Census of 1870. Defendants have not taken and do not intend to take any steps to have census enumerators or others at the next decennial census compile figures as to denial and abridgement of the right to vote and defendants have not taken and do not intend to take such steps as may be necessary to prepare and transmit a statement showing the number of Representatives to which each State is en titled on the basis of said figures as required by the Con stitution and laws of the United States. B. It is readily possible for the defendants by means of the census to make inquiries to provide a count of per sons who (1) did or did not register at the preceding elec tions; (2) did or did not vote at the preceding elections; and (3) did not register or vote respectively at preceding elections for specified reasons, including denial and abridge Complaint 16a ment of the right to vote by the states. Plaintiffs allege on information and belief that modern statistical knowledge and techniques possessed by defendants are adequate to secure the information required with a high degree of re liability and accuracy. Specific questions to be asked and procedures to be employed would not be more complicated than those employed in many inquiries now being conducted by the Bureau of the Census. The results of such inquiries would be as reliable, accurate, and valid as data the Bureau of the Census and the United States now employ and rely upon for many purposes required by law and for other rea sons of public importance. In order to insure a high degree of accuracy and reliability, specific questions and procedures to be employed should be developed in accordance with pre vailing census techniques (for example, on the basis of pre-test operations and sample survey checks for accuracy) well in advance of the actual census period. IX A. Defendants have a duty under 2 U.S.C., §2a, 13 U.S.C., §§4, 5, 11, 21, 141 and other provisions of law to prepare, compile, and compute a tabulation of population as required for the apportionment of Representatives and to prepare, compile, and compute a statement showing the number of Representatives in Congress to which each State is entitled and to transmit said statement to the President of the United States for the purpose of transmittal to Con gress. In so doing, defendants are required by §2 of the Fourteenth Amendment to the Constitution of the United States, the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amend ment to the Constitution of the United States and 2 U.S.C., Complaint 17a §6, to take all necessary and proper steps at the next de cennial census to compile figures as to denial and abridge ment of the right to vote and to prepare, compile, compute, and transmit a statement of the number of Representatives to which each State is entitled based upon denial and abridgement of the right to vote as required by §2 of the Fourteenth Amendment. B. To the extent, if any, that 2 U.S.C., §2a, 13 U.S.C., §§4, 5, 11, 21, 141, and other provisions of law directing defendants to prepare, compile, compute, and transmit a tabulation of population and a statement of the apportion ment o f Representatives in Congress fail to require de fendants to comply with §2 of the Fourteenth Amendment to the Constitution of the United States, and 2 U.S.C., §6 and the equal protection clause of the Fourteenth Amend ment and the due process clause of the Fifth Amendment, to this extent said provisions of law directing defendants to prepare, compile, compute, and transmit the apportion ment of Representatives in Congress are unconstitutional, null, and void in violation of the Constitution of the United States. X A. Defendants have taken no action, and do not intend to take any action, to prepare, compile, compute, and trans mit the apportionment of Representatives in Congress con sistent with §2 of the Fourteenth Amendment to the Con stitution of the United States, 2 U.S.C., §6, the equal protection clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment. B. There is overwhelming evidence that denial and abridgement of the right to vote by certain of the states Complaint 18a exists to an extent that constitutionally requires loss of Representatives in Congress by those states and a g*ain of Representatives by other states which do not deny and abridge the right to vote. For example: (1) Requirements that a poll tax be paid in order to register to vote in Federal and State elections in the States of Alabama, Arkansas, Mississippi, Texas and Virginia, deny and abridge the right to vote of white and non-white persons to such an extent as should result in the loss of Representatives in Congress by these States and propor tionate gain by others. (2) In 1960 in the State of Louisiana approximately 465,556 non-whites over 21 years of age (69.1% of the total), in contrast to approximately 396,108 whites over 21 years of age (27% of the total) were not registered to vote. A substantial number of persons not registered to vote in Louisiana were disfranchised by the requirement that they pass a constitutional interpretation test and lit eracy test to register. Moreover, a substantial number of persons have been disfranchised by arbitrary and discrim inatory practices which disfranchise non-whites. The great difference between the percentage of eligible registered non-whites and whites compels the conclusion that the re quirements for registration are administered with the pur pose and effect of disfranchising large numbers of non- whites. (3) The United States Civil Rights Commission and the Department of Justice have in their custody data which establish conclusively that in every southern state with educational or other requirements for voting numerous white persons vote regardless of their ability to meet these Complaint 19a requirements whereas numerous non-whites are consist ently denied and abridged the right to vote by these educa tional and other requirements. (4) According to the 1959 report of the United States Civil Rights Commission there were 158 counties with a majority Negro population located in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Tennessee, Texas and Virginia. Fifty-one of these Counties have 3 percent or less Negro registration. Forty-one others have less than 10 percent Negro registration. Only 11 had more than 30 percent Negro registration, and the remainder had between 10 and 30 percent Negro registration. C. Plaintiffs allege that on the basis of statistics, re ports and information as to disfranchisement in the hands of defendants and other officers or agents of the United States, as well as reported opinions of United States Courts, defendants know or should know it is likely and probable that the State of Pennsylvania where plaintiff Lampkin resides; the State of Massachusetts where plaintiffs Na thaniel Denman and Lucille Denman reside; the State of Missouri where plaintiffs Allison, Allen, Ross, Boon, Ken nedy and Evans reside; the State of Illinois where plain tiffs Rosenfield and Daniel reside; the State of Ohio where plaintiffs Berry and Lucas reside; and the State of Cali fornia where plaintiffs Atkinson and Garrott reside, would receive at least one additional Representative in Congress each, and that various other states including the State of Virginia where plaintiffs Lundy, Harris, Mason, Banks and Gillus reside; the State of Mississippi where plaintiffs Laura McGee, Robinson, William McGee and Hancock re side; and the State of Louisiana where plaintiff Tureaud Complaint 20a resides, would lose at least one Representative in Congress on the basis of an apportionment which reduces the number of Representatives apportioned to States in accordance with §2 of the Fourteenth Amendment of the Constitution of the United States and 2 U.S.C., §6. XI A. The failure of defendants to prepare, compile, com pute, and transmit an apportionment which takes into account denial and abridgement of the right to vote vio lates the rights of plaintiffs in that: (1) Plaintiffs Lundy, Harris, Mason, Banks and Gillus, citizens of the State of Virginia; plaintiffs Laura McGee, Robinson, William McGee and Hancock, citizens of the State of Mississippi; and plaintiff Tureaud, citizen of the State of Louisiana have the right to receive the protection of the reduction imposed by §2 of the Fourteenth Amend ment to the Constitution of the United States and 2 U.S.C., §6, in order to redress and deter denial and abridgement of their right to vote for reasons other than those specified in the Amendment; (2) Plaintiff Lampkin, citizen of the State of Pennsyl vania; plaintiffs Nathaniel Denman and Lucille Denman, citizens of the State of Massachusetts; plaintiffs Allison, Allen, Ross, Boon, Kennedy and Evans, citizens of the State of Missouri; plaintiffs Rosenfield and Daniel, citizens of the State of Illinois; plaintiffs Lucas and Berry, citizens of the State of Ohio; and plaintiffs Atkinson and Garrott, citizens of the State of California, have the right secured by §2 of the Fourteenth Amendment to the Constitution of the United States, the equal protection clause of the Fourteenth Amendment and the due process clause of the Complaint 21a Fifth Amendment to the Constitution of the United States, and 2 U.S.C., §6, not to have the value of their votes debased and diluted and to have their votes be of approximately equal value as those of voters in states denying and abridging the right to vote and are entitled to invoke the prescribed reduction of §2 of the Fourteenth Amend ment to the United States Constitution to protect this right. X II Plaintiffs are now suffering and will continue to suffer irreparable injury by the maintenance of defendants’ policy, practice, and usage as set forth herein, including denial, abridgement, dilution, and debasement of the right to vote. They have no plain, adequate, or complete remedy at law to redress these wrongs and this suit for a declaratory judgment is their only means of securing adequate relief. The pursuit of any other remedy would be futile, incon venient, and would not offer them substantia] relief. W herefore, plaintiffs pray this Court issue an order: Declaring that §2 of the Fourteenth Amendment to the Constitution of the United States, 2 U.S.C., §2a, 2 U.S.C., §6, the equal protection clause of the Fourteenth Amend ment and the due process clause of the Fifth Amendment to the Constitution of the United States and 13 U.S.C., §§4, 5, 11, 21, 141, require defendants Director of the Bureau of the Census and Secretary of Commerce to: (1) take all necessary and proper steps to prepare to compile figures as to the denial and abridgement of the right to vote at the next decennial census; (2) prepare, compile, compute, and transmit an apportionment based on said figures in accordance with §2 of the Fourteenth Complaint 22a Amendment to the Constitution of the United States and 2 U.S.C., §6. Should the Court determine that 2 U.S.C., §2a, and 13 U.S.C., §§4, 5, 11, 21, 141, or any other provi sions of law provide for the preparation, compilation, computation, and transmittal of an apportionment in any other manner, plaintiffs pray said provisions be declared unconstitutional, null, and void as in violation of the Constitution of the United States to the extent they direct defendants to prepare, compile, compute, and transmit a tabulation of population for the purposes of apportionment of Representatives in Congress and a statement of the number of Representatives in Congress to which each state is entitled without requiring defendants to comply with the provisions of §2 of the Fourteenth Amendment to the Con stitution of the United States and 2 U.S.C., §6. Complaint [Attorneys Omitted] 23a Defendants’ Motion to Dismiss or, in the Alternative, For Summary Judgment (Filed: February 4, 1964) The defendants, by their undersigned attorneys, move the Court to dismiss the complaint or, in the alternative, for summary judgment on the ground that there is no gen uine issue as to any material facts, and defendants are en titled to a judgment as a matter of law. The specific grounds for this motion are set forth in de fendants’ memorandum in support of their motion to dis miss or, in the alternative, for summary judgment and the affidavit of Richard M. Scammon. The Court is respect fully referred to this memorandum and affidavit, both of which are annexed to this motion. [Attorneys Omitted] 24a Statement of Material Facts as to Which Defendants Contend There is No Dispute (Filed: February 4, 1964) Pursuant to Local Rule 9(h), defendants submit the fol lowing statement of the material facts as to which they contend there is no genuine issue: (1) Defendants are the Secretary of Commerce, U. S. Department of Commerce, and the Director of the Bureau o f the Census, U. S. Department of Commerce. They are the Federal officials responsible for taking the decennial census of population as required in 13 U.S.C., §141. (2) In the census as currently carried out no informa tion is gathered showing the extent to which voting rights may be denied or abridged in the various states. (3) All facts set forth in the affidavit of Richard M. Scammon, Director of the Bureau of the Census, which affidavit is annexed to defendant’s motion as Exhibit “A ” . [Attorneys Omitted] 25a Affidavit (F iled: February 4, 1964) C ity of W ashington , D istrict of C olum bia , ss.: Richard M. Scammon, being duly sworn, deposes and says: 1. I am Director of the Bureau of the Census, United States Department of Commerce, and I make this affidavit on the basis of personal knowledge and information ob tained by me in the performance of my official duties and functions. 2. I have been delegated authority by the Secretary of Commerce to perform the functions vested in the Secre tary under Title 13, United States Code; that part of Chapter 5, Title 15, United States Code, relating to the collection, compilation, and publication of statistics; and any subsequent legislation respecting the collection, tabula tion, analysis, publication, and dissemination of statistical data relating to the social and economic activities and char acteristics of the population and enterprises of the United States. 3. Decennially, the Bureau of the Census prepares a tab ulation showing the total population of the Untied States, by states, as ascertained under the most recent census of population. The Bureau also computes (as required by 2 U.S.C., §2a) the number of Representatives to which each State would be entitled by virtue of its population under an apportionment of the existing number of Representa tives by the method known as the “method of equal pro portions,” 1 no state receiving less than one member. 1 As specified by the Congress, the apportionment of the 435 members of the House of Representatives has been calculated on the basis of the 26a 4. The Bureau of the Census does not now gather statis tics or other data showing the extent to which voting rights of United States citizens may be, or have been, denied or abridged. 5. It would not be possible, within the framework of the present operations of the Bureau of the Census, for the Bureau to ascertain accurately the number of citizens over 21 in each state whose right to vote “at any election for the choice of electors for President and Vice President of the United States, representatives in Congress, the Executive and Judicial officers of a state, or the members of the Legislature thereof,” has been denied or abridged Affidavit total population of the several states in accordance with the method of equal proportions after the Censuses of 1940, 1950, and 1960. The method of equal proportions minimizes the differences in the proportion (or ratio) of representation in the House among- all possible pairs of states, regardless of their size (population). This is true whether the test of representation is calculated on the basis of (A ) the number of representa tives per million population (number of seats divided by millions o f total population), or (B) the population per representative (total population divided by number of seats). In the application of the method, a given state is entitled to an addi tional representative when its population, divided by the geometric mean of its present assignment of representatives and of its next higher as signment, is greater than the population of any other state divided by the geometric mean of the assignment to such other state and its next higher assignment. To facilitate the computations of apportionment priorities, mathematical tables of the factors to be used have been developed. Through the use of these factors, the strength of a state’s claim (its priority value) for a second and subsequent representatives can be deter mined. These priority values are then arranged in descending order of size. After the assignment of one representative to each of the states, in accordance with the provisions o f the Constitution, the state with the highest priority value receives the fifty-first representative, the state which has the next largest priority value receives the fifty-second repre sentative, and so forth until 435 representatives are assigned. (See Sehmeckebier, Laurence, Congressional Apportionment, The Brookings In stitution, Washington, D. C., 1941, and H. Rep. No. 2223, 86th Cong, 2d Sess. (I960)). 27a “except for participation in rebellion or other crime.” This inquiry would involve the Bureau of the Census in intermingled questions of psychology, law and statistics different from those faced in any of its present inquiries. (a) For each of more than 120 million persons, an in quiry would be required as to: (1) whether that person had voted or had not in the elections specified in Section 2; and if the person did not vote (2) whether a given one of the myriad qualifications or restrictions on the right to vote in the various states was the actual reason for the failure to vote. While the census enumerator in the field could ascertain that a given person in a certain state declared that his voting rights had been denied or abridged by virtue of a given qualification or restriction, this in itself would not establish whether the respondent had actually been deprived of the right to vote, or had had his right to vote abridged. Unless there were some way to verify the statements of the re spondent, he would be the sole judge of the very denial or abridgement about which he himself was complaining. It would be necessary to develop an additional procedure to establish for each case whether the complaint was valid. This would have to be done for each individual in question, since Federal law bars the census at present from using sampling techniques in ascertaining the population for apportionment purposes. (b) One set of problems arises in the situation in which the respondent did actually attempt to vote and was turned away. Additional difficulties would be posed in the case of respondents who claimed denial or Affidavit 28a Affidavit abridgement of voting rights, but who did not ac tually attempt to vote. In the latter case, a distinc tion would have to be made between: (1) respon dents who failed to vote because of illness, apathy, or other causes not directly attributable to other persons; and (2) respondents who thought their at tempt would be futile because of outside restrictions. In the latter case, a theoretical analysis would be required to determine whether the citizen would have been turned away on any grounds not authorized by Section 2 of the 14th Amendment in the event he had actually attempted to vote. For example, the statement by a person who did not attempt to vote that he believed he would lay himself open to re prisals if he made such attempt may be either an accurate estimate of the situation or an erroneous view based on lack of information or excessive fear. (c) The very nature of the subject matter covered by the inquiry would militate against the receipt of ac curate information on the basis of which the con gressional representation of states would be ad justed. First, the inquiry would have to be directed toward events which occurred from two to four years prior to the date of questioning, i.e., a 1970 inquiry would have to be aimed at voting deprivation at some earlier election—most likely the 1968 Presi dential election. This would pose additional prob lems in the case of persons who could not recall what had occurred at the last election, and persons whose residence had changed from one state to another since the prior election, to say nothing of persons who had died or become otherwise unavailable since that election. Furthermore, social pressures toward 29a responses which demonstrate “good citizenship” could be anticipated to cause respondents, perhaps unconsciously, to come up with answers which would tend to excuse their failure to vote rather than con cede its being’ due to apathy or inertia. Finally, ques tions concerning voting rights would probably elicit a highly emotional response in certain parts of the country and the Bureau could not be assured that enumerators, who are selected from the locale of in quiry, would carefully elicit and record complex data concerning voting behavior with a high degree of accuracy. (d) The only experience that census takers have had in obtaining information of denial of voting rights was in the Ninth Decennial Census, taken in 1870. The results obtained—fewer than 50,000 persons were re ported to have had their voting rights denied or abridged— were such that the Secretary of the In terior (to whose Department the census function was then assigned) reported to Congress that “ the De partment is disposed to give but little credit to the returns.” (See 42 Cong. 2 sess. Cong. Globe, Pt. 1, p. 66). As pointed out above, there would be major problems in developing significantly more credible results from similar inquiries, even though the Bu reau takes advantage of new developments in survey techniques. (e) In view of the uncertainties which would be involved in an inquiry concerning the deprivation of voting rights, it is impossible to estimate with accuracy the additional cost of obtaining even the limited infor mation which might result from such inquiry. Field Affidavit 30a testing would be required to determine what the added cost would be. Past experience suggests that it would probably be many millions of dollars. This would require a Congressional appropriation in ad dition to that needed for traditional census opera tions and functions. R . M. S cam m ox Washington, D. C. Sworn to before me and subscribed in my presence this 31 day of January, 1964. A n n H eath Notary Public My Commission Expires Jan. 31, 1963 Affidavit 31a Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Or in the Alternative for Summary Judgment (Filed: November 18, 1964) Plaintiffs hereby oppose defendants’ Motion to Dismiss the Complaint or In The Alternative for Summary Judg ment on the ground that there are genuine issues as to ma terial facts, and defendants are not entitled to judgment as a matter of law. The specific grounds of plaintiffs’ opposition are set forth in plaintiffs’ Memorandum in Opposition to the Motion to Dismiss or In The Alternative for Summary Judgment and the affidavit of Dr. A. J. Jaffe annexed thereto as Exhibit “A.” The Court is respectfully referred to this memoran dum and affidavit, both of which are annexed to this motion. [Attorneys Omitted] 32a Plain t iff s’ Statement of Genuine Issues (Filed: November 18, 1964) Pursuant to local Rule 9(b), plaintiffs submit the fol lowing statement of genuine issues setting forth material facts as to which they contend there is a genuine issue nec essary to be litigated: 1. All facts set forth in paragraph five of the affidavit of Richard M. Scammon, Director of the Bureau of the Census, which affidavit is annexed to defendants’ Motion to Dismiss or In The Alternative for Summary Judgment as Exhibit “A.” 2. All facts set forth in paragraphs three, four, five, six and seven of the affidavit of Dr. A. J. Jaffe, which af fidavit is annexed to plaintiffs’ Memorandum in Opposition as Exhibit “A.” [Attorneys Omitted] 33a (Filed: November 18, 1964) C ity of N ew Y ork , Cou nty of N ew Y ork , ss.: A bram J. J affe , being- duly sworn, deposes and says: 1. I reside at 314 Allaire Avenue, Leonia, New Jersey, and I make this affidavit on the basis of personal knowl edge and experience as well as information provided by U.S. Government reports, professional reports and jour nals, and other recognized sources of authority. 2. I am Director of the Manpower and Population Pro gram, Bureau of Applied Social Research, Columbia Uni versity, in the City of New York, and have held this post since about the middle of 1950. This affidavit is, however, made independently of my affiliation with Columbia Uni versity. Our task at the Bureau, in large part, is the con duct of statistical studies in various fields such as demog raphy and manpower, communication, public health, mental health, and education. These studies are made with the financial assistance of government, business, foundations, and international organizations. These studies involve data collection as well as analysis of already collected data such as census reports. Prior to joining the Bureau of Applied Social Research, I was a statistician in the U.S. Bureau of the Census from the end of World War II to the middle of 1950, and for the period mid-1939 through 1941. I have a Ph.D. degree from the University of Chicago, Depart ment of Sociology (1941). Among other positions, I have been a lecturer on census and labor statistics for the United Nations Regional Training Center held in Tokyo, Japan Affidavit 34a (1958) ; consultant on labor statistics to the Commonwealth of Puerto Rico (1952-1956) ; and President of the New York Area Chapter of the American Statistical Associa tion (1962-1963). I am presently Consultant on Labor Sta tistics to the Census Office of the Republic of Panama and an advisor to the Workmen’s Compensation Board of the State of New York. My writings include the following: Disabled Workers in the Labor Market. Bedminister Press, 1964. People, Jobs and Economic Development. The Free Press, 1959. Manpower Resources and Utilization (with Charles Stewart). John Wiley & Sons, 1951. Handbook of Statistical Methods for Demographers. IJ.S. Bureau of the Census, 1951. Occupational Mobility in the United States, 1930 to 1960 (with R. O. Carleton). King’s Crown Press, 1954. Benefits, Incomes and Expenditures of Unemployed Workers: Experience of a Group of Unemployed In surance Beneficiaries in Albany-Schenectady-Troy. Bureau of Applied Social Research, 1957. Unemployment Benefits and Family Finances—A Study of Incomes and Expenditures of Beneficiaries and Their Families in Utica, New York, 1958. Bureau of Applied Social Research, 1960. Puerto Rican Population of New York City (editor and contributor). Bureau of Applied Social Research, 1954. Experience of Private Enterprise in Manufacturing De velopment in Underdeveloped Countries. I.C.A. 1957. Affidavit 35a The Growth of Private and Public Industries in Planned Development {India, Pakistan, and Puerto Rico). I.C.A., 1957. I have also written papers for the United Nations on meth ods of data collection and analysis in the fields of popula tion and the economically active population; and some five dozen articles on labor, population and related topics which have appeared in various professional journals such as : American Sociological Review, American Journal of So ciology, Journal of the American Statistical Assn., Monthly Labor Review, Annals of the American Academy of Polit ical and Social Science, Scientific Monthly, Estadistica, and American Journal of Economics and Sociology. 3. I have read the affidavit of Mr. Richard M. Seammon, Director of the Bureau of the Census, filed in the case of Lampkin, et al. v. Ilodges, et al. (No. 1355-63 in the United States District Court for the District of Columbia), which discusses the feasibility of enforcement of Section 2 of the Fourteenth Amendment to the Constitution by the Bureau of the Census. In my opinion certain of the conclusions set forth in the affidavit of Mr. Seammon are questionable. For example, one factor considered by Mr. Seammon to support a failure to enforce Section 2 of the Fourteenth Amend ment is the experience of the Bureau of the Census in tak ing the Ninth Census of 1870. Mr. Seammon writes : The only experience that census takers have had in ob taining information of denial of voting rights was in the Ninth Decennial Census, taken in 1870. The results obtained—fewer than 50,000 persons were reported to have had their voting rights denied or abridged—were such that the Secretary of the Interior (to whose De Affidavit 36a partment the census function was then assigned) re ported to Congress that “ the Department is disposed to give but little credit to the returns.” (See 42 Cong. 2 sess. Cong. Globe, Pt. 1, p. 66.) The 1870 decennial census of population was, however, one of the poorest, if not the most deficient, ever taken by the U. S. Census Bureau. The over-all quality of the census- coverage and responses was so low that one should not judge the success or failure of any specific question by its apparent performance in the Ninth Decennial Census. In particular, since no previous experience had been had with questions on denial or arbridgment of voting rights, and Census had done no pretesting prior to the enumeration, we cannot say that the apparent failure of the 1870 census to produce usable statistics is inherent in the topic covered by these questions. As the over-all quality of the census was poor, we can expect that all questions asked in the census, especially new ones, provided data of poor quality. As evidence of the appallingly poor quality of the 1870 decennial population census, we may note that it is the only one for which the U.S. Census Bureau has published “cor rected” figures, i.e., estimated more nearly “ correct,” in lieu of the actual count. Thus, in the 1963 Statistical Ab stract of the United States, compiled and published by the Census Bureau, the 1870 population is printed as 39,818,449; the footnote to the table (Table No. 1, p. 5) states: “Re vised to include adjustments for underenumeration in Southern States; unrevised number is 38,558,371.” Thus, the minimum acknowledged undercount is 1,260,078 per sons. Now it is true that all censuses in all parts of the world miss some people. For example, in appraising the results of the 1960 population census, the Census Bureau Affidavit 37a Affidavit concluded that there was a net undercount of between 1.0 and 2.9 per cent (Conrad Taeuber and Morris H. Hansen, “A Preliminary Evaluation of the 1960 Census of Popula tion,” paper presented at the meetings of the Population Association of America on April 26, 1963, at Philadelphia, Pennsylvania). The undercount of people in the 1870 cen sus, however, was far greater than the normally expected undercount. Mr. Francis A. Walker, Superintendent of the 1870 and 1880 censuses, detailed some of his many problems with the 1870 census in the introductory sections of its publication. See Exhibit I (Excerpts from the Report of the Superin tendent of the Ninth Census). He described the inade quacies in the 1850 law under which the 1870 census was taken, and pointed out how the protracted enumeration pe riod, low pay to the marshals, lack of sufficient supervision over the marshals, etc., together with the ravages of the Civil War, all contributed to an inadequate census. In 1880 Mr. Walker, having had an opportunity to compare the re sults of the 1870 and 1880 censuses, concluded that the sta tistics in the 1870 census “were, to a great extent, incom plete and defective, and that in some cases the material gathered by the enumeration was so far deficient or inac curate that it would be more creditable not to publish the tables at all. . . Exhibit II, at p. xliii (Excerpts from Introduction to the Compendium of the Tenth Census). The Superintendent of the 1890 census, Mr. Robert P. Porter, confirmed Mr. Walker’s analysis of the quality of the 1870 census, Exhibit III (Excerpts from Report on Population of the Eleventh Census). In 1890, Mr. Walker, no longer Superintendent of the Census and writing as a private citizen, detailed in franker fashion some of his problems with the 1870 census which led to poor quality 38a statistics. See Exhibit IV (“ Statistics of the Colored Race in the United States,” 2 American Statistical Association, p . 91 (1890-91). Given the set of circumstances surrounding the 1870 population census, it is clear that good quality statistics cannot have been expected, especially when new and un tested questions were involved. 4. Another objection raised by Mr. Scammon to enforce ment of Section 2 of the Fourteenth Amendment concerns supposed difficulties in obtaining accurate results: . . . questions concerning voting rights would prob ably elicit a highly emotional response in certain parts of the country and the Bureau could not be assured that enumerators, who are selected from the locale of inquiry, would carefully elicit and record complex data concerning voting behavior with a high degree of ac curacy. These comments were relevant in the past; they are no longer relevant. The Census Bureau collected a large part of the 1960 population census by means of self-enumera tion, and plans to make even more use of self-enumeration, mail questionnaires and the facilities of the U.S. Post Of fice in the 1970 population census. See Mr. Scammon’s testimony in Exhibit V (Hearings Before the Committee of Post Office and Civil Service, House of Representatives, 88th Cong., 1st Sess., March 19, 1963). Under these cir cumstances, in which the respondent himself writes in the answers to the questions, there is less opportunity for lo cally selected enumerators to introduce errors or distor tions into the responses. Affidavit 39a In the last several years the Census Bureau has carried out a number of tests using mail questionnaires. The last test (to our knowledge), conducted in the Louisville, Ken tucky metropolitan area on May 14, 1964, resulted in at least 88 per cent of the households returning their com pleted forms. An account, as reported in The New York Times, May 31, 1964, reads: Census Bureau officials here expressed thorough sat isfaction this wreek with citizen participation in the ex perimental mail census conducted in the Louisville metropolitan area May 14. To date, 88 per cent of all households that were mailed census forms have returned the completed forms to the special office here. A total of 220,000 forms was mailed to residents in Jefferson County in Kentucky and the southern In diana counties of Floyd and Clark. The mail census was a test to determine the feasibil ity of conducting the nationwide census in 1970 by mail. Harry C. O’Haver, test census supervisor, said the previous high return by mail was 85 per cent, reached in Huntington, L.I. A return in Little Rock, Ark., was 75 per cent. With return ratios of this magnitude one does not have to worry about the interviewer problem raised by Mr. Scammon. Furthermore, the Census Bureau has already worked out procedures for collecting information in circumstances where it is believed that the respondents would not co operate with the local census officials. Thus, at the time, of the 1940 population census, when a question on income Affidavit Affidavit was first introduced, it was felt that many people might refuse to answer the question; it was thought that many respondents would not care to divulge such information to the enumerator who might be their next door neighbor. Accordingly, the Census Bureau printed forms in which the respondent could enter his income, together with neces sary identification, and then mail the form directly to the Census Bureau in Washington, D. C. In this way the potentially prying eyes of the locally recruited enumerators could be circumvented. In my opinion similar procedures could be used, if necessary, for ascertaining disfranchise ment. 5. In his affidavit Mr. Scammon asserts that: It would not be possible, within the present opera tions of the Bureau of the Census, for the Bureau to ascertain accurately the number of citizens over 21 in each state whose right to vote “at any election for the choice of electors for President and Vice President of the United States, representatives in Congress, the Executive and Judicial officers of a state, or the members of the Legislature thereof,” has been denied or abridged “ except for participation in rebellion or other crime.” This inquiry would involve the Bureau of the Census in intermingled questions of psychology, law and statistics different from those faced in any of its present inquiries. Putting aside what is meant by the phrase “within the present operations of the Bureau of the Census,” it is my belief that in the past the Census Bureau has tackled, and overcome, at least one other problem no less difficult or complex than may be measurement of the denial and 41a abridgment of the franchise. This is the measurement of unemployment. Counting the unemployed also involves “ intermingled questions of psychology, law and statistics.” The partic ular mix may be somewhat different from that involved in measuring denial and abridgment of the right to vote, but the problems in measuring unemployment are no less complex. Exhibit VI (Appendix E in Manpower Resources and Utilization; Jaffe and Stewart, Wiley & Sons, 1951) demon strates the fact that psychology and statistics are all inter mixed in measuring unemployment. We summarized by saying (at pp. 461-462) : We thus see that there are no clear lines cleanly demarcating the population 14 years ago and over into three mutually exclusive groups: those employed, those unemployed, and those not in the labor force. The labor force is an artifact—a concept created by man in accordance with the characteristics of the culture in which he finds himself. Being an artifact, it is influenced by the way man thinks and the way in which he verbalizes his feelings and hopes. As far as this is the fact, there will always be “fuzzy” groups— “borderline” cases. However, this situation does not mean that the resulting statistics are useless and meaningless. On the contrary, the taxonomic system and the statistics emanating therefrom can be highly useful and, rela tively speaking, quite accurate. With regard to the legal aspects we must remember that each state has its own unemployment insurance law, and defines differently that type of behavior for which it will Affidavit 42a pay benefits, i.e., unemployment insurance. Persons who receive such benefits are to be included in the Census Bureau’s count of the unemployed. (The only exceptions are those persons who both received benefits and also worked for pay or profit during the specified reference week and who, therefore, are counted by the Census as employed.) The Census Bureau has not been overcome by the legal problems of ascertaining beyond a show of a doubt whether or not a person who reported that he legally qualified in his state for unemployment insurance benefits and received them, had actually qualified and was actually unemployed. The Census accepts without question the re spondents’ answers. As demonstrated by history, the Census Bureau finally overcame the very difficult task of counting the unemployed by persistency and by the expenditure of thought, effort and money. The Census first inquired about unemployment—or “non employment” as it was sometimes referred to in the earlier censuses—in 1880. The results were not tabulated. “This was due partly to the fact that the amount of labor re quired to tabulate the results of the main inquiries of that census without mechanical assistance involved so much expense and delay that the returns for several important subjects were either tabulated in part only or not at all; but another reason for not tabulating the returns of months unemployed was the existence of grave doubt as to the reliability of the information which had been secured.” Exhibit VII, at p. ccxxv (Excerpts from Report of the Twelfth Census: Occupations). The Census Superintendent did not despair and tried again in the 1890 census of population (as was not done following the results of the inquiries on disfranchisement Affidavit 43a in the 1870 census). That these data were not of good quality was attested to by the census officials: “ In present ing the results, however, attention was called to the fact that they were the first published statistics upon this subject and should be regarded as approximate. Even with this conservative position many eminent authorities disagreed, declining to accept, even with qualifications, the Eleventh Census returns concerning persons out of em ployment.” (Exhibit VII, at p. ccxxv.) In particular, Census officials seemed worried by the poor quality of the data obtained in the 1890 census with respect to number of months unemployed: It should be stated further that these figures only show the number and approximate length of time unemployed with regard to the principal occupation in which persons so reported were usually engaged and upon which they depended chiefly for a livelihood. They do not show, therefore, the actual length of time for which they were unemployed in any form of remunerative labor, that is, the net period, after making allowance for the time when not engaged at their principal or usual occupation, during which their services may have been utilized at some other kind of work. Although the census enumerators were fully instructed on this point, the returns were not con sidered complete enough to warrant their compilation. Exhibit V III at p. cxxxvi (Excerpts from Report of the Eleventh Census). In 1900 the Census Bureau again tried to collect in formation on unemployment. Between the censuses of 1880 and 1900 a number of improvements were made in the census procedures in an ofifert to improve the quality of Affidavit 44a the returns, see Exhibit V II; each time it was felt that some improvement had been achieved and that the 1900 results were the best up to that time. Again in 1910 the Census Bureau tried to collect statistics on unemployment. E. Dana Durand, Director of the Bureau of the Census, was not very sanguine about the value of the questions included and thought that they would produce data of only partial usefulness: The last change in the population schedule which calls for mention is the insertion of the question, as required by the new Census Act: “Whether out of work on April 15, 1910.” This new question is in addi tion to the question, “ Number of weeks out of work during the preceding year,” which corresponds to the old question, “Number of months unemployed,” being designed to emphasize what we consider the proper meaning of the inquiry. It cannot be hoped that any very considerable degree of accuracy will be secured in the replies to either of these questions, as it is ob viously difficult to define the phrase “ out of work.” Our instructions are that persons are to be reported as out of work only where they want work and cannot find it, and that persons who are sick, on strike, or voluntarily idle are not to be reported as out of work. Of course, it would be interesting to know also how many working people are out on strike at the time of the census, or how long they were out of employ ment because of strikes during 1909. It would be in teresting, too, to have some information as to the loss of earning power through sickness. To combine, how ever, all forms of unemployment in one return, without distinguishing the causes, which would be imprac ticable, would obscure the answer to the question Affidavit 45a which, after all, interests the greatest number of people; namely, how far work is lacking for those who are willing and able to work. Exhibit IX (“ Changes in Census Methods for the Census of 1910,” 12 American Statistical Association 52, 58, 59, 1910- 1911). The results of the census of 1910 were not published at that time. Finally, in 1948, the Census Bureau made avail able upon request photostat copies of selected tables from the 1910 unemployment count, with the note: “ These data should be interpreted with caution since they may be subject to relatively large enumerative and tabulating er rors.” Questions on unemployment were dropped at the time of the 1920 population census. With the onset of the Great Depression in 1929, the Census Bureau reinstated questions on unemployment in the 1930 census, taken in April of that year. Exhibit X (Excerpt from Report of the Fifteenth Census, Vol. 1: Unemployment). This was followed by a special census of unemployment in January of 1931. The data provided by these enumerations turned out to be quite unsatisfactory for the purposes of public policy formation as is described by John D. Durand in Exhibit X I (Durand, “Development of the Labor Force Concept,” in Labor Force Definition and Measurement, Social Science Research Council, 1947). The need for unemployment statistics which could be used in setting public policy was so great during the 1930s that there followed a great flurry of statistical activity among statisticians both in and out of the Census Bureau. “A great many labor market surveys were made in various cities and rural areas during the decade and several states took population censuses which gave opportunities to test Affidavit 46a different techniques of enumerating employment and un employment. It was on the basis of experience gained in these surveys and censuses that the ‘labor force’ concept was developed.” Exhibit X I at p. 83. It would appear that more testing and experimentation was carried out during this decade than in all the previous five decades (1880 to 1930) during which the Census Bu reau had made largely ineffectual attempts at the times of the decennial censuses. The result of this vast volume of statistical activity dur ing the 1930s was the formation of the present system for obtaining labor force statistics. This set of procedures was initiated at the time of the 1940 census and continued monthly by the Census Bureau ever since. The resulting statistics have turned out to be highly useful both to gov ernment and private statisticians and policy makers. The labor statisticians, with the Census Bureau experts in the van, continued testing and improving these labor force procedures. The Employment Act of 1946 gave added impetus to the improvement of statistics on employment and unemployment. The President’s Committee to Ap praise Employment and Unemployment Statistics in Ex hibit X II (Measuring Employment and Unemployment, at p. 32, 1962) wrote: As a matter of fact, the employment and unemploy ment statistics have probably had as continuous, ex pert, and careful review as any other economic series published by the Federal Government. An interagency committee, under the chairmanship of an official of the Bureau of the Budget, keeps the series under fairly continuous scrutiny, and this review has been supplemented from time to time by special investiga tions. Affidavit 47a Indeed, this 1962 review by labor experts—both in and out of the Federal Government— of the Federal Govern ment’s program for collecting data on the employed and unemployed was the second large-scale interagency investi gation, the first having been started in 1955. Altogether, the Census Bureau reports 19 “major im provements made in the Current Population Survey” (the survey by means of which the employment and unemploy ment statistics are collected monthly) since the series was begun and the procedures incorporated into the 1940 popu lation census. See Exhibit X III ( “ Concepts and Methods Used in the Household Statistics on Employment and Un employment From The Current Population Survey,” Cur rent Regulation Reports, Series P-23, No. 13, June, 1964). The relevancy of this historical account is that it empha sizes the large amount of work, testing, and experimenta tion needed to develop workable procedures for obtaining useful data. Statisticians must keep working at the problem, trying out new approaches, following new sug gestions, etc. Finally, a workable solution will be obtained. If the Census Bureau had adopted the same attitude toward the measurement of unemployment which was adopted toward the measurement of disfranchisement fol lowing the 1870 Census of Population, we still would not have usable data on employment and unemployment. Hence, as the Bureau of the Census has no experience in collecting statistics on denial or abridgment of the franchise under modern conditions, it is premature and unrealistic to conclude that accurate results cannot be obtained. 6. Title V III of the Civil Rights Act of 1964 appears to authorize collection of some of the statistics necessary Affidavit 48a to measure denial and abridgment of the franchise in accordance with the requirements of Section 2 of the Fourteenth Amendment. Therefore, the Census Bureau should undertake those first steps immediately, as I under stand it is now contemplating doing. At the time he testi fied before the Subcommittee on the House of Represen tatives, 88th Cong., 1st Sess., considering this Title, Mr. Scammon indicated that the Bureau could comply with the provisions of the Title for collection of registration and voting statistics. If the Census Bureau feels that it can comply with Title VIII, and such data as provided by Title V III is collected on a uniform basis for all the states, these statistics will provide a basis for subsequent work which can lead to accurate measurement of denial and abridgment of the franchise. At the time of the decennial census, Mr. Scammon testi fied, “ The cost of getting these data as part of the decennial census would be much less. The registration and voting would be tacked on with a series of other questions in that census.” Exhibit X IV at p. 1029 (Hearings Before Subcommittee No. 5 of the Committee on the Judiciary, House of Representatives, 88th Cong., 1st Sess.). Appar ently, Mr. Scammon is optimistic that the data can be col lected and that the major problems remaining center about the availability of money. The following exchange between Mr. McCulloch and Mr. Scammon make this clear: Mr. McCulloch. I understand all that. All I am trying to get is the ability of your Bureau to get the facts if we determine it is worth a million or $5 million to get the facts. Mr. Scammon. This the Bureau could do. Mr. McCulloch. I f it is necessary in our opinion Affidavit 49a to get the facts to save a Birmingham by spending $10 million, it will have been cheap even for a Scotsman. Mr. Scammon. This could be done. The facts could be ascertained either by direct count or by sample at a cost of X dollars. Mr. McCulloch. On the other hand it would be quite difficult if we wanted to do that frequently and make the figures available for both municipal elec tions and congressional elections. Mr. Scammon. The cost would increase in direct proportion to the magnitude and depth of the study desired. Mr. McCulloch. So summarizing, you can do this if we wish to have it done and are willing to accept the responsibility for the cost thereof. Mr. Sammon. Exactly. (Exhibit X IV at p. 1030). In addition to the data specified in Title VIII, the Cen sus Bureau should compile statistics on the number of citizens aged 21 and over in order to provide additional information which is needed for subsequently calculating apportionment in accordance with the requirements of Section 2 of the Fourteenth Amendment. In previous censuses (1930 being the last) the Census Bureau asked the foreign-born for their citizenship. When combined with the information on age, they were able to tabulate the number of citizens of voting age in each geographic area. Since the 1960 Census provided data only for the population of voting age, the alien population is included in these data. (See, also, Bureau of the Census, Current Population Reports, “ Population Estimates,” P-25, No. 221, Oct. 7, 1960; P-25, No. 255, Oct. 12, 1962). An alternative procedure (to asking the foreign born Affidavit 50a about their U.S. citizenship) consists of tabulating the alien registration cards by age. Subtracting off the num ber of aliens aged 21 and over in each, geographic area from the total population 21 and over, will then provide information on the number of citizens. The Immigration and Naturalization Service of the United States Depart ment of Justice has been collecting the alien registration cards annually for a number of years but does not tabu late them by age. Exhibit X V (Letter from E. A. Loughran, Associate Commissioner, U.S. Immigration and Naturali zation Service). Finally, serious efforts to measure disfranchisement must he made. Obvious forms of disfranchisement are poll tax laws and literacy requirements. Other forms of dis franchisement include some residence requirements, ad ministrative requirements for registration with which po tential voters may or may not be able to cope, the use of fear and intimidation, deliberate slowdowns in registra tion, and overt racial discrimination. As Mr. Scammon states, “ There has certainly been much improvement in this area in the years since the end of the Second World War, but even the most casual witness will testify as to the institutional disfranchisement of hundreds of thou sands of colored Americans in the South.” Scammon, “ The Electoral Process,” X X V II Law and Contemporary Prob lems, p. 299, 305 (Spring, 1962). Efforts must be made to measure these forms of disfranchisement directly by means of questioning citizens aged 21 and over. Such question ing can be done by means of mail questionnaire or via personal interviewing. When this is accomplished, we can relate the number of citizens aged 21 and over to the numbers disfranchised as per the above and obtain a ratio of disfranchisement; this will permit calculating appor tionment as per Amendment XIV. Affidavit 51a To recapitulate, if the Census Bureau is to calculate congressional apportionment in accordance with Section 2 of the Fourteenth Amendment, it must first (a) collect statistics on voter registration in all states, and (b) pro vide a count of the number of citizens aged 21 and over in each state; (c) the Census Bureau must then determine reasons for non-registration among citizens aged 21 and over. This last step is the heart of the procedures leading to compliance with the Fourteenth Amendment. Efforts must be made to ascertain the extent of disfranchisement. If the Census Bureau were to devote to this end even a fraction of the amount of energy which it devoted to per fecting the statistics on unemployment, I feel confident that statistics could be generated which would be suitable for effecting the provisions of the Fourteenth Amendment. In this connection, of course, the Census Bureau is free to call upon outside experts, including the technicians in private survey firms who are engaged in surveys of politi cal behavior. It is my understanding that these firms have had some experience in trying to ascertain why people do not register. Other technical consultation can be ob tained via the American Statistical Association, the Ameri can Association for Public Opinion Research, and, perhaps, other professional associations. The Census Bureau now makes very extensive use of committees of such outside experts, and the formation of a new committee to work on the problems of data collection for purposes of imple menting the Fourteenth Amendment would be directly in line with their present activities. 7. Research on the measurement of disfranchisement might result in the finding that it is easier to measure apathy rather than disfranchisement per se. Together, Affidavit 52a apathy and disfranchisement account for all nonregistra tion and nonvoting. I f this should turn out to he the case, then Section 2 of the Fourteenth Amendment can still be implemented in the manner described below. Using the only data available to me on apathy, by edu cational level of the voters, I estimated the numbers of persons in each state who should have registered. The difference between the number who should have registered and the number who did is, then, a measure of disfran chisement. This information permitted me to make the necessary statistical calculations as prescribed in Section 2 of the Fourteenth Amendment, namely, to reduce “ in the proportion which the number of such [citizens 21 years of age and over whose right to vote had been denied or abridged] /m ale/ citizens shall bear to the whole number of /m ale/ citizens twenty-one years of age in such State.” * The calculations for congressional apportionment were made in accordance with the procedures as described in the Census Bureau’s sheet, Steps in Computing an Appor tionment, dated July 24, 1950. The illustrative results of these calculations are shown in the table. In the first column are shown the actual num bers of Congressmen (taken from U.S. Census of Popula tion, 1960, United States Summary, “ Number of Inhabi tants,” PC(1)1A, U.S., Table 13) and in the second col umn the numbers of Congressmen in each state if Section 2 of the Fourteenth Amendment had been followed. Affidavit * Section 2 of the Fourteenth Amendment speaks only of' “ male” citi zens. The 19th Amendment to the Constitution states, however, that “ The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.” In making this calculation, therefore, I ignored the restriction by sex of Section 2. 53a The calculations in the second column are based on an assumption of apathy derived from the registration data provided in Roper’s survey (see following) and the data on registration. We reasoned as follows. The citizens of each state are as equally patriotic and good Americans as are the citizens of any other state. The great majority of American citizens living in those states where there are but a minimum of blocks to voter registration, do register; those who do not register are probably apathetic. There fore, we can assume that there must be disfranchisement in any state in which a smaller proportion of the citizenry is registered, and particularly in those states in which the IT.S. Civil Rights Commission has raised doubts about the extent of freedom to register. Now we obtained the proportions registered according to the estimates in the Roper survey, by educational level, for the citizens aged 21 and over and living in the New England, Middle Atlantic, East and West North Central, Mountain and Pacific States. In these states there are very few bars to voter registration. Therefore, the proportion in these states who did not register is a measure of apathy. For example, among persons with no schooling we esti mate that 32 per cent were apathetic (68 per cent were registered); among persons who had attended college only 9 per cent were apathetic (91 per cent were registered). Therefore, we assume that in all other states, about equal proportions would be apathetic, and equal proportions would have registered at each educational level if there were no disfranchisement. Next, we multiply the proportions registered at each educational level, for the above block of states (as ob tained from the Roper survey) by the estimated number of citizens aged 21 and over in each educational level in Affidavit 54a each state, in accordance with the basic data provided in the 1960 Census of Population. These calculations pro vide the expected numbers who would have registered in each state if the only block to voter registration was apathy. The difference between the expected number registered and the actual number registered, in each state, is a mea sure of disfranchisement. Where appropriate, then, the total population of each state was reduced by the propor tion of its citizens who had been disfranchised, and con gressional apportionment calculated. The sources of my information are as follows: Total population, number of persons aged 21 and over, and number aged 21 and over by educational level in each state were obtained from the 1960 Decennial Census of Popu lation. The number of aliens in each state in 1960 was obtained from the 1963 Annual Report of the U. S. Immi gration and Naturalization Service. In order to estimate the number of aliens aged 21 and over in each state, the total number of aliens was multiplied by the constant pro portion of .9325. This figure was obtained by dividing the Census Bureau’s reported number of aliens aged 21 and over in total United States—two and three-quarter million —by the total alien population—2,948,973. (U.S. Bureau of the Census, Current Population Reports, “Population Esti mates,” Series P-25, No. 221, October 7, 1960). Registration statistics as of 1960 wTere obtained from Book of the States, 1962-1963 and 1964-1965 editions, the Council of State Governments, Chicago, Illinois. For several states no registration data were available; how ever, statistics on the numbers of votes cast in the 1960 Presidential Election were available for all states. Using the ratio of numbers registered to numbers of votes cast Affidavit Affidavit for those states which had both series of data, we calcu lated the numbers registered for the missing states. For several other states registration data were available only for periods prior to and following 1960; for these states we obtained 1960 estimates by interpolation. At this point it should be noted that if the Census Bureau extends its statistical gathering activities along the lines previously suggested, it will have assembled all of the above data, some of which we were forced to estimate. Information on the proportions of citizens registered for voting purposes, by educational level, color, and for those living in the South versus the other regions of the country, were obtained from a special tabulation of an Elmo Roper survey made in October, 1960. The proportions who re ported being registered in each group are as follows: Educational Level White Non-White Total New England, Middle Atlantic, East and West North Central, Mountain, and Pacific States No Schooling ............. 68% 67% 68% Grade School ............. 81% 84% 81% High School ............... 85% 89% 85% College ___________ 91% 90% 91% South Atlantic, East and West South Central States No Schooling ............... * * 13% Grade School ......—~ 58% 31% 49% High School ............... 62% 56% 61% College ...... .......... - 73% 54% 71% * Too few eases in sample to show separately. Presumably, we can look forward to the time when the Census Bureau will have collected more complete statistics Affidavit on the subject of voter registration than we were able to obtain for the purpose of our illustrative examples. Such data together with information on disfranchisement or apathy will permit complying with Section 2 of the E ôur- teenth Amendment. MEMBERSHIP OF THE U. S. HOUSE OF REPRESENTATIVES 1960 Actual and 1960 Hypothetical Actual Hypo thetical V. S. Total 435 435 Regions Northeast 108 114 North Central 125 135 South 133 112 West 69 74 Divisions Northeast New England 25 29 Mid-Atlantic 83 85 North Central E. No. Central 88 95 W. No. Central 37 40 South So. Atlantic 63 54 E. So. Central 29 25 W. So. Central 41 33 West Mountain 17 18 Pacific 52 56 States New England Maine 2 3 New Hampshire■ 2 2 Vermont 1 1 Massachusetts 12 14 Actual Hypo thetical New England (cont’d) Rhode Island 2 2 Connecticut 6 7 Mid-Atlantic New York 41 42 New Jersey 15 15 Pennsylvania 27 28 East No. Central Ohio 24 25 Indiana 11 12 Illinois 24 27 Michigan 19 21 Wisconsin 10 10 West No. Central Minnesota 8 9 Iowa 7 7 Missouri 10 11 North Dakota 2 2 South Dakota 2 2 Nebraska 3 4 Kansas 5 5 South Atlantic Delaware 1 1 Maryland 8 7 Virginia 10 6 West Virginia 5 5 North Carolina 11 12 South Carolina 6 4 Georgia 10 8 Florida 12 11 57a Affidavit Hypo- Actual thetical East So. Central Kentucky 7 8 Tennessee 9 9 Alabama 8 5 Mississippi 5 3 West So. Central Arkansas 4 4 Louisiana 8 7 Oklahoma 6 5 Texas 23 17 Mountain Montana 2 2 Idaho 2 2 /* / Actual Hypo thetical Mountain ( cont’d) Wyoming 1 1 Colorado 4 5 New Mexico 2 2 Arizona 3 3 Utah 2 2 Nevada i i Pacific Washington 7 8 Oregon 4 5 California 38 41 Alaska 1 1 Hawaii 2 1 A b r a m J . J a f p e Sworn to before me this ....... day of November, 1964. N otary P ublic 58a (Filed: March 29, 1965) Two groups of plaintiffs joined in filing the complaint in this action. Group 1 consists of fifteen persons who assert that they are citizens of the United States, over 21 years of age, and that they are and have been duly reg istered voters for all general elections in their respective States. One is a citizen of the State of Pennsylvania; two are citizens of the State of Massachusetts; six are citizens of the State of Missouri; two are citizens of the State of Illinois; two are citizens of the State of Ohio; and two are citizens of the State of California. Group 2 plaintiffs consist of ten persons who allege that they are citizens of the United States, over 21 years of age, and that they are eligible to vote in their respective States but that they are unable to vote because of their failure to meet one or more of the following requirements: (1) The State of Virginia requirement that an applica tion to register to vote must be in one’s own handwriting; (2) the requirement of the State of Virginia and of the State of Mississippi of the payment of poll taxes; (3) the State of Mississippi requirement that a voter pass a con stitutional interpretation test administered in a different manner to Negroes than to white persons;1 and (4) the State of Louisiana requirement that a voter answer ques tions on a registration form without error of any kind.1 2 1 For a recent consideration of the constitutional interpretation test administered in Mississippi, see United States v. Mississippi, ------ U.S. ------ , 33 U.S.L. Week 4258 (Mar. 8, 1965). 2 Recently the Supreme Court has affirmed a decision of a United States District Court that Louisiana’s pre-1962 constitutional interpretation voter-qualification test violated the Federal Constitution. Louisiana v. United States, ------ U.S. ------ , 33 U.S.L. Week 4262 (Mar. 8, 1965). It is not clear from the complaint in this action whether it is that now void test about which plaintiffs complain here. For the purpose of this opinion it will be assumed that it is a different discriminatory test. Opinion 59a Five of these Group 2 plaintiffs are Negro citizens of the State of Virginia; four are Negro citizens of the State of Mississippi; and one of the Group 2 plaintiffs is a Negro citizen of the State of Louisiana. All Group 2 plaintiffs assert that the voter-qualification tests and conditions as applied to them by their respective States constitute a denial or abridgment of their right to vote. All plaintiffs joined in bringing this action on their own behalf and on behalf of all other persons similarly situ ated. They seek a declaratory judgment against the Sec retary of Commerce and the Director of the Bureau of the Census, Department of Commerce.3 Plaintiffs’ complaint asserts that section 2 of the Four teenth Amendment to the Constitution; the equal protec tion clause of the Fourteenth Amendment and due process clause of the Fifth Amendment to the Constitution; 2 U.S.C. §6 (1958); 2 U.S.C. § 2a (1958); 13 U.S.C. §§ 4, 5, 11, 21 and 141 (1958) require the defendants, in connec tion with each decennial census, to take necessary steps to prepare and to transmit to the President of the United States a statement showing the number of Representatives to which each State is entitled under section 2 of the Fourteenth Amendment, which provides as follows: Section 2. Representatives shall be apportioned among the several States according to their respec tive numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of 8 At the time this action was instituted Luther Hodges was Secretary of Commerce and Richard M. Scammon was Director, Bureau of the Census. Since that time John T. Connor has succeeded Hodges and A. Ross Eckler has succeeded Scammon in those offices. A substitution order has been entered. Fed. R. Civ. P. 25 (d )(1 ). Opinion 60a electors for President and Vice President of the United States, Representatives in Congress, the Ex ecutive and Judicial officers of a State, or the mem bers of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. According to the plaintiffs’ complaint the defendants are required by existing law to take a decennial census of the population of the United States for the purpose of appor tioning Representatives in Congress among the several States and to report the tabulation of population for that purpose to the President of the United States, whose sole duty is to transmit to the Congress a statement of the number of Representatives to which each State is entitled. And upon receipt of such statement by Congress the House of Representatives is to be apportioned as reported there in. Plaintiffs assert that it is readily possible for defen dants as well as their obligation to take steps at the next decennial census to compile figures as to denial and abridg ment of the right to vote and to prepare and transmit a statement showing the number of Representatives to which each State is entitled on the basis of such figures. But, according to plaintiffs, the defendants do not intend at the next decennial census to compile such figures and make and transmit such statement. It is further claimed by plaintiffs that, if upon the tak ing of the next decennial census figures were compiled as Opinion 61a to the denial and abridgment of the right to vote, it is likely and probable that the resulting reapportionment would give to each of the States in which the Group 1 plaintiffs reside at least one additional Representative in Congress while various other States, including the States in which Group 2 plaintiffs reside, would each lose at least one Representative in Congress. Group 1 plaintiffs allege that refusal by the defendants to compile and make available the above described re apportionment data in connection with the next decennial census will violate their Constitutional rights. They claim that such reapportionment data is necessary to effectuate the reduction in the number of Representatives in Con gress from those States which deny and abridge the right to vote and that unless such reduction is accomplished their votes will be debased and diluted to the extent that they will be of less value than the votes of the voters in the States which deny and abridge the right to vote. And Group 2 plaintiffs assert that unless the defendants compile and make available such reapportionment data in connection with the next decennial census their Consti tutional rights will be violated. They claim that without that reapportionment data there will be no reduction in the number of Representatives from their respective States and that such reduction or threat thereof is a pro tection to them in that it will serve as a means of redress ing and deterring the denial or abridgement of their right to vote. All plaintiffs join in requesting this Court to enter a declaratory judgment that, pursuant to the above men tioned Constitutional provisions and statutes, the defen dants are required at the next decennial census to compile figures as to the denial and abridgement of the right to Opinion 62a vote and to prepare, compile and compute for transmittal to Congress an apportionment of the House of Representa tives based on such figures. And, alternatively, all plain tiffs request the Court that, if it should be determined that any one or more existing statutes provide for the preparation, compilation, computation and transmittal of an apportionment in any other manner, such statutes be declared unconstitutional to the extent that they do not require defendants to comply with the provisions of sec tion 2 of the Fourteenth Amendment to the Constitution and 2 U.S.C. § 6 (1958).4 Defendants have moved to dismiss the complaint or, in the alternative, for summary judgment on the grounds that: (1) plaintiffs lack standing to sue; (2) the complaint fails to state a justiciable controversy; and (3) the complaint should be dismissed for want of equity. Both plaintiffs and defendants have filed memoranda briefs and the Court has heard oral argument by counsel. I In considering plaintiffs’ complaint and the relief they seek, it is well to again recall the words of Justice Frank furter in his concurring opinion in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150 (1951): Limitation on “the judicial Power of the United States” is expressed by the requirement that a litigant must have “ standing to sue” or, more comprehensively, that a federal court may entertain a controversy only Opinion 4 Since plaintiffs do not seek an injunction to restrain the enforcement, operation or execution of any Act of Congress, a three-judge District Court need not be convened. 28 U.S.C. §§2282 (1958), 2284 (Supp. V, 1964). 63a if it is “justiciable.” Both characterizations mean that a Court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitutes a “ case or contro versy.” The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously. Unless the plaintiffs have standing to sue “ or, more comprehensively” , unless their complaint states a justici able case or controversy, this Court cannot entertain their plea for assistance. An examination of the rights claimed by the plaintiffs, and of the asserted effect upon those rights because of the refusal of defendants at the time of the next decennial census to compile and make available reapportionment data in the manner demanded by plain tiffs, leads to but one conclusion: the complaint must be dismissed. Group 1 plaintiffs assert that there has been and, unless the relief sought here is obtained, there will continue to be apportioned to States, of which they are not citizens, seats in the House of Representatives to which those States are not entitled because they abridge and deny the right to vote of large numbers of citizens. According to these Group 1 plaintiffs, such malapportionment results in de basing and diluting their right to vote. To rectify this Opinion 64a condition and to restore true value to their votes they would have the illegally-apportioned House seats reappor tioned as required by section 2 of the Fourteenth Amend ment to the Constitution. But assuming that this Court were to construe the census-taking statutes as requiring defendants to compile and transmit the reapportionment data requested by plain tiffs, it would be sheer speculation that such data would result in the acquisition of one or more House seats by any one, let alone all of the States in which Group 1 plain tiffs reside. While 13 U.S.C. § 141(b) (1958) directs the Secretary of Commerce to report the census tabulation of total population by States as required for the apportion ment of Representatives, section 2a(a) of Title 2 IT.S.C. (1958) provides that the President shall transmit to Con gress a statement evidencing such population “ and the number of Representatives to which each State would be entitled under an apportionment * * * by the method known as the method of equal proportions * * # .” Until the population of each State was computed in the manner plaintiffs request, the “method of equal proportions” could not be applied to the population figures of each of the fifty states. Through the application of that formula there would be determined the parity or disparity of each State with every other State with respect to representation per population. The resulting reapportionment could add to, take away from, or even leave unaffected the number of House seats presently apportioned to the States in which Group 1 plaintiffs reside.5 6 For one explanation of the method o f equal proportions by ail au thority, see Huntington, Memorandum on the Method of Equal Propor tions, 70 Cong. Rec. 4965-66 (1929). See also Report to the President of the National Academy o f Sciences, id. at 4966-67; Chafee, Congres sional Reapportionment, 42 Harv. L. Rev. 1015, 1032-35 (1929). Opinion 65a And while Group 1 plaintiffs allege that defendants know or should know that it is “ likely and probable” that the States in which Group 1 plaintiffs reside would each re ceive “at least one additional Representative in Congress” through the reapportionment method they desire, they recognize in their Memorandum in Opposition to Defen dants’ Motion that such a result is speculative. There they state (p. 9 ): The results of an apportionment in accordance with the provisions of § 2 [Fourteenth Amendment] are dependent totally on patterns of denial and abridge ment of the franchise throughout the country. An ap portionment consistent with §2 may result in a small number of states gaining Representatives, a small number losing, and a large number remaining the same; or a small number of states may lose a large number of Representatives each and a large number of states may gain a small number of Representatives each. It may or may not be limited to inhabitants of a “few thinly populated states” (Defendants’ Memo, p. 7) depending on whether and to what extent such states deny or abridge the right to vote and whether and to what extent other, more populous, states deny or abridge the right to vote. The complaint of Group 1 plaintiffs that their votes are debased and diluted in value is a condition they share in common with citizens of all States where the right to vote is neither abridged nor denied. Thus what the Group 1 plaintiffs would have this Court do is to decide a question and afford a remedy as to which their interest is remote and speculative and shared by millions of others. They are not personally aggrieved or affected in a legal sense by Opinion 66a defendants’ refusal to take future action in connection with the 1970 census in the manner these plaintiffs demand. They lack standing to sue. Massachusetts v. Mellon, 262 U.S. 447 (1923); Frothingham v. Mellon, 262 U.S. 447 (1923); Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Pennsylvania R.R. v. Dillon,------ U.S. App. D .C .------- , 335 F.2d 292 (1964); United States v. Stewart, 234 F. Supp. 94 (D.D.C. 1964). Nor are the Group 2 plaintiffs in any better legal posi tion than those of Group 1. They assert that they, as well as others in their States, have suffered and will continue to suffer the denial or abridgement of their rights to vote for reasons other than participation in rebellion or other crime. Because of this condition they seek the assistance of this Court to require defendants to so compile census data that their respective States would lose seats in the House of Representatives. But assuming that defendants were compelled to take such action and that a reapportion ment gave existing House seats to other States, that result would not vindicate their right to vote. They would find themselves in the same position that they are in at this time. But Group 2 plaintiffs argue that granting the relief sought here would bring about a change in existing condi tions. They claim that a reduction in the number of Rep resentatives from their respective States, or even the threat thereof, would serve as a means of redressing and deterring the denial or abridgement of their right to vote. But such a possibility is both remote and speculative. These plaintiffs do not and could not assert that it is the Secre tary of Commerce and the Director of the Bureau of the Census—the defendants here—who have barred them from exercising their right to vote. Insofar as that right has Opinion 67a been denied or abridged, it resulted from the alleged action of state officials; but they are not parties to this suit. Whether those States, faced with the loss of Representa tives, would remove the asserted barriers to voting is problematical. Poll taxes and voter-qualification tests are long standing conditions to voting in certain States, in cluding those in which Group 2 plaintiffs reside. To con sider whether those conditions would be removed if the relief sought here were granted would be to engage in a conjectural exercise that could not bring about that cer tainty required for standing to sue. In short, the interest of Group 2 plaintiffs is not so “direct and immediate” as to justify the relief they seek. Massachusetts v. Mellon, 262 U.S. 447, 487 (1923). Both Group 1 and Group 2 plaintiffs argue that the conclusion reached here—that they have no standing to sue—is contrary to recent Supreme Court decisions. Baker v. Carr, 369 U.S. 186 (1962); Gray v. Sanders, 372 U.S. 368 (1963); Wesberry v. Sanders, 376 U.S. 1 (1964); Rey nolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Comm, for Fair Repre sentation v. Tawes, 377 U.S. 656 (1964); Davis v. Maim, 377 U.S. 678 (1964); Romany. Sincock, 377 U.S. 695 (1964); Lucas v. 4.4th General Assembly of Colorado, 377 U.S. 713 (1964). In each of these cases plaintiffs had standing to sue. In Wesberry alone was the Court treating with a seat in the House of Representatives. There the plaintiffs were voters in the State of Georgia. Their suit was against State election officials. Their claim was that a Georgia statute so malapportioned the Congressional districts in Georgia that the district in which they resided was propor tionately so much larger in population than the other Opinion 68a districts that their votes were debased and diluted in value. No question was raised as to the proper apportionment of Representatives between the several States. The issue did not include a determination of whether Georgia would gain or lose House seats. The plaintiffs asked the Court to declare the state statute invalid and enjoin the state officials from conducting elections under it. There was, in other words, nothing remote or speculative about the action brought by Wesberry and his fellow plaintiffs. In Gray v. Sanders, again the plaintiffs were voters of the State of Georgia and the defendants were state officials. At issue was the constitutionality of a state statute making the county unit system applicable to statewide primary elections. That system according to plaintiffs diluted the value of votes of some voters solely because of their place of residence in the State of Georgia. Here again there was nothing remote or speculative about the rights asserted nor in the ruling sought. The other above cited cases involved the constitutionality of the apportionment of state legislatures—in some in stances only one house of a bicameral legislature; in other cases, both houses. Again the plaintiffs were directly af fected voters suing officials of their States and claiming that their votes had been diluted in value because of mal apportionment of state legislatures under state statutes. There wras nothing remote or speculative about either the rights they asserted or the relief they sought. Nor are Smiley v. Holm, 285 U.8. 355 (1932), Koenig v. Flynn, 285 U.S. 375 (1932), Ohio ex rel. Davis v. Hilde brand, 241 U.S. 565 (1916), Carroll v. Becker, 285 U.S. 380 (1932), and Wood v. Broom, 287 U.S. 1 (1932) authorities for holding that plaintiffs here have standing to sue. Those actions were brought by voters of the particular States Opinion 69a against state officials attacking state action relating to congressional districts within the respective states. It can be said that in each of the cases cited by plaintiffs there was present “ that concrete adverseness which sharp ens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions” and that therefore, there was standing to sue. Baker v. Carr, 369 U.S. 186, 204 (1962). But such is not the case here. Finally, plaintiffs assert that Frothingham v. Mellon, 262 U.S. 447 (1923) does not sustain a holding that plain tiffs here have no standing to sue. Plaintiffs would dis tinguish plaintiff Frothingham from themselves in that she sued as a taxpayer while they bring this action as voters. However, the Supreme Court held Frothingham as lacking standing to sue not because she was a taxpayer but rather that the interest she asserted was shared by millions of others, was comparatively minute and indeter minable and “ so remote, fluctuating and uncertain, that no basis [was] afforded for an appeal to the preventive powers of a court of equity.” 262 U.S. at 487. Plaintiffs’ interest here is no less “ remote, fluctuating and uncertain.” They lack standing to sue. Opinion II But even if plaintiffs had standing to sue they could not obtain the relief they seek. Instead, summary judgment would be entered in favor of defendants. This case pre sents no genuine issue of material facts. Plaintiffs assert that the defendants do not intend at the next (1970) de cennial census to compile figures as to denial and abridge ment in the several States of the right to vote for other than criminal activities and to prepare and transmit to 70a the President a statement showing the number of Repre sentatives to which each State is entitled when the dis franchised are excluded from the State’s total population. Defendants do not deny this assertion, but rather they claim that they have been neither directed nor authorized to compile such figures and prepare such statement. Plain tiffs contend that there is legislation that makes such activ ity the duty of defendants. Thus, the controversy here concerns only the question of legal authority without in volving a factual dispute. Assuming jurisdiction, this would be a proper case to be disposed of by summary judgment. Dewey v. Clark, 86 U.8. App. D.C. 137, 180 F.2d 766 (1950).6 According to plaintiffs’ complaint, section 2a of Title 2 U.S.C. (1958) and sections 4, 5, 11, 21 and 141 of Title 13 IJ.S.C. (1958) impose upon the defendants the duty to take the census and compute Congressional apportionment in the manner contended for by the plaintiffs. But an exam ination of those sections of the Code reveals that they neither separately nor collectively authorize, let alone di rect, the defendants to take the action which plaintiffs re quest this Court declare defendants must take. Sections 4, 5, 6, 11 and 21 of Title 13 U.S.C. (1958) pro vide appropriation authority and authorize the Secretary to Commerce (with power to delegate his duties to the Director of the Census) to prepare schedules and forms 6 Plaintiffs contend that the affidavit o f defendant Seammon, attached to defendants’ motion, and the reply affidavit of Abram J. Jaffe, tiled herein by plaintiffs, raise a genuine issue of material fact which precludes the granting of summary judgment. But those affidavits treat with the question of whether procedures could be developed by the Census Bureau which would accomplish the objectives for which plaintiffs contend; they do not relate to whether defendants have authority to determine what voters have had their votes abridged or denied them and to compute Con gressional apportionment on the basis of such facts. Opinion 71a for recording statistics and census data; to call upon other Federal government agencies for information; to obtain information by purchase or otherwise from State and local governments, private persons and agencies.7 Section 141 of Title 13 IT.S.C. (1958), after providing that the Secretary of Commerce shall in 1960 and every ten years thereafter take a “census of population” , states: “The tabulation of total population by States as required for the apportionment of Representatives shall be com pleted within eight months of the census date [April 1] and reported by the Secretary to the President of the United States.” The limitation upon the Secretary’s authority in making the “ tabulation of total population” is determined by the use made of that work as provided in subsection (a) of section 2a of Title 2 U.S.C. (1958): (a) On the first day, or within one week thereafter, of the first regular session of the Eighty-second Con gress and of each fifth Congress thereafter, the Presi dent shall transmit to the Congress a statement show ing the whole number of persons in each State, excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State would be entitled under an appor Opinion 7 While not specifically referred to in their complaint, plaintiffs cite in their Memorandum in Opposition to Defendants’ Motion 13 U.S.C. §13 (1958) and 13 U.S.C.A. §§23-25 (1964 Supp.). Those provisions merely authorize the Secretary to contract with educational and other research or ganizations for the preparation of reports and materials; to employ per sonnel necessary to carry out the survey and census authorized in Title 13, the employees being obligated to carry out their duties in keeping with the Secretary’s instructions including the collection of facts and statistics called for on the schedules prepared or approved by the Secretary. Opinion tionment of the then existing number of Representa tives by the method known as the method of equal proportions, no State to receive less than one Member.8 It is to be noted that the President is required to report to Congress the “whole number of persons in each State” with only non-taxed Indians being excluded. Necessarily, the “whole number” includes the disfranchised citizens of the State. Such population figure is “ascertained under the # * * decennial census of the population,” that is, the tabulation of total population by States transmitted by the Secretary of Commerce to the President. If the Sec retary’s tabulation excluded the disfranchised, as plain tiffs contend it must, then the President’s “whole number” statement to Congress would also exclude them. This would be contrary to the direction of Congress as set forth in section 2a of Title 2 U.S.C. (1958). Moreover, neither section 141 of Title 13 U.S.C. (1958), nor any other statutory provision cited by plaintiffs makes any reference to, let alone imposes a duty upon, either of the defendants with respect to computing the apportion ment of Representatives. The responsibility for stating to Congress the number of Representatives to which each State would be entitled under an apportionment is placed upon the President alone. 2 U.S.C. § 2a (1958).9 8 Section 141 of Title 13 U.S.C. (1958) and §2a of Title 2 U.S.C. (1958) were derived from the Census and Reapportionment Act of 1929, 46 Stat. 21. See §2 o f the 1929 Act, 46 Stat. 21, for the origin of §141 of Title 13 U.S.C. (1958) ; see §22(a) o f the 1929 Act, 46 Stat. 26, for the origin of §2a of Title 2 U.S.C. (1958). While there have been some amendments to the 1929 Act, they are not material here. 9 2 U.S.C. §2a (1958) in none o f its subsections even refers to the Sec retary of Commerce or the Director of the Bureau of the Census. Subsec tion (b) of that section makes it the duty of the Clerk of the House of Representatives (or under certain circumstances the Sergeant at Arms or 73a The Congress in enacting the Census and Reapportion ment Act of 1929 expressed the intention that the Secre tary of Commerce and the Bureau of the Census should “ count * * * people” while the President, “with [their] figures in hand” , would report the census figures together with a table showing “how, under these figures, the House would be apportioned * * * S. Rep. No. 2, 71st Cong., 1st Sess. 4 (1929). When the legislation (S. 312) was before the House of Representatives for consideration. Congressman Tinkham of Massachusetts offered several amendments. One of those amendments would have required the Director of the Census to include in each decennial census “the num ber of inhabitants in each State being 21 years of age and citizens of the United States, whose right to vote at the election next preceding such census for the choice of elec tors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof has been denied or abridged except for rebellion or other crime.” 71 Cong. Rec. 2271 (1929). A second Tinkham amendment would have included within the restricted census inquiries one relating “to the denial or abridgement of the right to vote.” Id. And the third Tinkham amendment would have the President’s statement to Congress exclude from the whole number of persons in each state not only untaxed Indians but also “ the number of inhabitants in each State whose right to vote has been denied or abridged.” Id. Opinion the Doorkeeper of the House) to send to the executive of each State a certificate of the number of Representatives to which such State is en titled. 74a In giving notice of offering the amendments, Congress man Tinkham stated that they provided “ for the carrying out of the provisions of the constitutional amendment [section 2, Fourteenth Amendment] in full in the most practicable way possible, namely, the collection of statistics to ascertain as nearly as can be the number of persons who are disfranchised.” 71 Cong. Rec. 2271 (1929). At one time during the consideration of the legislation, one of Congressman Tinkham’s amendments was adopted by the House. Id. at 2364. But before final passage the amend ment was eliminated. Id. at 2483. Thus, Congress in 1929 denied defendants the authority plaintiffs now claim for those officials. And Congress has not since changed its position. In enacting the Civil Rights Act of 1964, Congress did grant the Secretary of Commerce authority to collect and compile limited registration and voting statistics. Section 801, Title V III of the Civil Rights Act of 1964 (78 Stat. 266, 42 U.S.C.A. 2000f). However, the Secretary may not com pel any person to furnish any pertinent information as he can when taking the census. 13 U.S.C. §§221-225 (1958). The Civil Rights Act of 1964 does not implement section 2 of the Fourteenth Amendment. When under considera tion in both the House and the Senate this was made clear, Congressman Stratton expressed this understanding when he stated (110 Cong. Rec. 2768 (1964)) : Title V III as it now stands is at least a step in the direction I have proposed that we go, that is, toward the full enforcement of the second section of the 14th Amendment. It does not, however, require an immedi ate new census nor does it give the Bureau of the Census the authority, as I personally believe it should Opinion 75a be given to determine not only the extent of the abridgement of voting rights in this country but also the extent to which the representation of various States must be correspondingly reduced by reason of this voting abridgement.10 11 Both before and since the enactment of the Civil Rights Act of 1964, attempts have been made to implement sec tion 2 of the Fourteenth Amendment. Thus far none has succeeded. As recently as February 17, 1965, Senator McNamara renewed his attempt to enact legislation which would achieve the purpose of section 2. In introducing his bill— S. 1101, 89th Congress, 1st Session—he said, “ Congress has shirked its responsibility for enforcing this provision [section 2, 14th Amendment] with the legislative machiner.” 11 The courts also have recognized that Congress has never implemented section 2 of the Fourteenth Amendment. In Saunders v. Wilkins, 152 F.2d 235, 237-38 (4th Cir. 1945), cert, denied, 328 U.S. 870 (1946), it was said: “ It is well known that the elective franchise has been limited or denied to citizens in various States of the union in past years, but no serious attempt has been made by Congress to enforce the mandate of the second section of the Fourteenth Amendment, * * * .” See also United States v. Sharrow, 309 F.2d 77 (2d Cir. 1962), cert, denied, 372 U.S. 949 Opinion 10 For other statements to the same effect, see: (1) in the House, 110 Cong. Rec. 1643-1644, 1904, 2754, 2759 (1964) ; (2) in the Senate, 110 Cong. Rec. 6564, 6954 (1964). 11 For earlier attempts by Senator McNamara as well as other mem bers of Congress to implement §2, see Zuekerman, A Consideration of the History and Present Status of Section 2 of the Fourteenth Amend ment, 30 Fordham L. Rev. 93 (1961). 76a (1963); Dennis v. United States, 84 U.S. App. D.C. 51, 171 F. 2d 986 (1948), aff’d, 339 U.S. 162 (1950).12 If plaintiffs had standing to sue I would rule that the Code sections relied on by them do not direct or authorize the defendants to exclude disfranchised citizens in taking the census and to compute a statement showing a reappor tionment of Representatives on the basis of such exclu sion. But plaintiffs contend that to so hold would require 2 U.S.C. § 2a (1958) and 13 U.S.C. §§ 4, 5, 11, 21 and 141 (1958) to be declared unconstitutional, null and void. Plaintiffs cite no authority for that contention.13 I have found none. On the other hand, United States v. Sharrow, 309 F.2d 77, 79-80 (2d Cir. 1962), cert, denied, 372 U.S. 949 (1963), held: “Irrespective of the Fourteenth Amend ment’s mandate the Congress, in the present state of the law is not required to prescribe that census-takers ascer tain information relative to disfranchisement. * * * There was nothing unconstitutional in the omission from the cen sus form of a question relating to disfranchisement.” And Chief Judge Lumbard stated in his concurring opinion: Opinion 12 Baker v. Carr, 369 U.S. 186 (1962); Gray v. Sanders, 372 U.S. 368 (1963) ; Wesberry v. Sanders, 376 U.S. 1 (1964) ; Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964) ; Mary land Comm, for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964) ; Roman v. Sincock, 377 U.S. 695 (1964) ; Lucas v. 44th General Assembly of Colorado, 377 U.S. 713 (1964) are not pertinent to the question here. They involved actions against state officials. They did not treat with the manner and by whom the United States decennial census should be taken and whether the Sec retary of Commerce and Director of the Bureau of the Census had any duties concerning the apportionment of the House of Representatives. 13 In their complaint as well as in their Memorandum in Opposition to Defendants’ Motion, plaintiffs cite 2 U.S.C. §6 (1958). This section is merely declaratory of §2 of the Fourteenth Amendment. It does not im plement that constitutional provision. Nor does it supply support for plaintiffs’ constitutional argument. 77a “ There is no language in the Constitution which directs that the Congress designate the census questionnaire as the means to determine disfranchisement. Although the 1960 census may have provided an occasion to make that factual determination, * # # it cannot he said to be the constitutionally required means.” If plaintiffs had standing to sue I would grant defen dants’ motion for summary judgment.14 But since they do not I grant defendants’ alternative motion to dismiss. March 29, 1965 Opinion s / W m. B. J ones Judge Attorneys: W illiam B. B ry an t , Esq. J ack G reenberg, Esq. M ich ael M eltsner , Esq. For Plaintiffs J ohn W. D ouglas, Esq. Assistant Attorney General D avid C. A cheson , Esq. United States Attorney W illiam J. D oolittle, Esq. Attorney, Department of Justice For Defendants 14 Kosty v. Lewis, 115 U.S. App. D.C. 343, 348, 319 F.2d 744, 749 (1963). 78a Order (Filed: March 29, 1965) Defendants’ motion to dismiss or, in the alternative, for summary judgment having come on to be heard and the Court having considered defendants’ memoranda in support thereof and plaintiffs’ memoranda in opposition thereto and having heard argument of counsel, it is this 29th day of March, 1965 Ordered that d e fen d an ts ’ m otion to d ism iss be and the sam e is h ereby granted . s / W m . B. J ones Judge Attorneys: W illiam B. B ry a n t , Esq. J ack Greenberg, Esq. M ichael M eltsner , Esq. For Plaintiffs J o h n W . D ouglas, Esq. Assistant Attorney General D avid C. A cheson , Esq. United States Attorney W illiam J. D oolittle, Esq. Attorney, Department of Justice For Defendants 79a Notice of Appeal (Filed: April 19, 1965) Notice is hereby given that Nathaniel Denman, Lucille Denman, R. Sims Allison, E. Davis Allen, William A. Ross, Ina Boon, Arthur Kennedy, Pearlie Evans, Maurice Rosen- field, W. M. Daniel, Charles Lucas, Theodore M. Berry, J. Edward Atkinson, James H. Garrott, John Lundy, Ray mond Harris, Henry Franklin Mason, Nephus Homus Banks, Dennis Gillus, Laura McGee, Clarence A. Robin son, William McGee, Milton H. Hancock and Carole L. Tureaud, plaintiffs in the above named action, hereby ap peal to the United States Court of Appeals for the Dis trict of Columbia from the order of the United States District Court of the District of Columbia, granting defen dants’ motion to dismiss entered in this action on March 29, 1965. W illiam B . B byant 615 F. Street, N.W. Washington, D. C. Attorney for Plaintiffs Dated: April 19, 1965 MEIIEN PRESS INC. — N. Y.