Lampkin v. Connor Joint Appendix

    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.