US Department of Commerce v. US House of Representatives Brief Amicus Curiae in Support of Appellants

    No. 98-404

IN THE

Supreme Court of tfje fintteb H>tate£
October Term, 1998

United States Department of Commerce, et al. ,

Appellants,

v.

United States House of Representatives, et al. ,

Appellees.

On Appeal from the United States District Court 
for the District of Columbia

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF APPELLANTS

Elaine R. Jones 
Director-Counsel

THEODORE M. SHAW 
Norman J. Chachkin 
Jacqueline a . Berrien 
David T. Goldberg 
NAACP Legal Defense 

& EDUCATIONAL FUND, INC.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900
Todd A. Cox*
NAACP Legal Defense 
& Educational Fund, Inc. 

1444 Eye Street, NW, 10th Floor 
Washington, DC 20005 
(202) 682-1300

* Corns el of Record

Counsel fo r  Amicus Curiae_______________



1

TABLE OF CONTENTS

Table of Authorities................................................................  ii

Statement of Interest o f Amicus C uriae ...............................  1

Introduction ...........................................................................  2

a. The Differential Undercount and
Its Consequences ..........................................  3

b. The Governmental Response ......................  5

Summary of Argument .........................................................  6

ARGUMENT

I. Straightforward Principles of Statutory 
Construction Foreclose the Interpretation 
Given the Census Act by the Court B e lo w ............  10

A. The Plain Terms of the Statute Authorize
the Use of Statistical Sampling to Correct 
the Inaccuracies in the Apportionment 
C en su s.........................................................  11

B. The Secretary’s Determination Is Owed
Deference.....................................................  12

C. The Decision Below Erred in Giving 
Dispositive Weight to (Relative)
Legislative Silence .....................................  16

Page



11

T ab le  o f  C o n te n ts  (co n tin u ed )
Page

ARGUMENT (continued)

D. A Complete Prohibition on the “Statistical 
Method Known as ‘Sampling’” — and Only
that Method — Would Make No Sense . . .  20

E. The Constitutional Argument Against
the Planned Census is Insubstantial...........  22

II. The Census Act May Not be Interpreted in
Isolation from its Constitutional and Statutory 
C o n te x t..................................................................... 24

A. The Executive Branch has Distinct
Power and Responsibility to Assure 
Political Equality ........................................  24

B. An Inaccurate Census Would Raise
Serious Constitutional Questions .............  27

Conclusion .............................................................    28

TABLE OF AUTHORITIES

Cases'.

Bob Jones University v. United States,
461 U.S. 574(1983) ...................................  1 ,9 ,27

Bush v. Vera,
116 S. Ct. 1941 (1996) ..........................................  27



California State Senate v. Mosbacher,
968 F.2d 974 (9th Cir. 1 9 9 2 )............................... . 26

Carey v. Klutznick,
508 F. Supp. 404 (S.D.N.Y. 1980)........................  14

Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc.,
467 U.S. 837 (1984) .................... 7, 8, 12, 13, 14, 16

Chicago v. Environmental Defense Fund,
511 U.S. 328 (1994) ...............................................  17

Chisom v. Roemer,
501 U.S. 380(1991) ........................................ 17,18

City o f  Detroit v. Franklin,
4 F.3d 1367 (6th Cir. 1 9 9 3 ).....................................  3

City o f  New York v. U.S. Department o f Commerce,
739 F. Supp. 761 (E.D.N.Y. 1990), rev'don  
other grounds, 34 F.3d 1114 (2d Cir. 1994), 
rev'd on other grounds sub nom. State o f  
Wisconsin v. New York City, 517 U.S. 1 (1996) . . 14

City o f  Philadelphia v. Klutznick,
503 F. Supp. 663 (E.D. Pa. 1980) ........................  14

City o f Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ..............................................  26

iii

T ab le  o f  A u th o ritie s  (co n tin u ed )
Page

Cases (co n tin u ed ):



IV

T ab le  o f  A u th o ritie s  (co n tin u ed )
Page

Cases (co n tin u ed ):

Conroy v. Aniskoff,
507 U.S. 511 (1993) ............................................... 17

44 Liquormart v. Rhode Island'
517 U.S. 484(1996) ............................................... 23

Franklin v. Massachusetts,
505 U.S. 788 (1992) ..........................................  8,12

Harrison v. PPG Industries, Inc.,
446 U.S. 578 (1980) ..............................................  17

KM artCorp. v. Cartier, Inc.,
486 U.S. 281 (1988) ............................................... 11

Karcher v. Daggett,
462 U.S. 725 (1983) .................................  2 ,25,26

Kirkpatrick v. Preisler,
394 U.S. 526(1969) ............................................... 25

Miller v. Johnson,
115 S. Ct. 2475 (1995) ..........................................  27

Moore Ice Cream Co. v. Rose,
289 U.S. 373 (1933) ............................................... 22

Morales v. Trans World Airlines, Inc.,
504 U.S. 374(1992) ............................................... 17



Morton v. Mancari,
417 U.S. 535 (1974) ..............................................  u

Motor Vehicle Manufacturers Assn v. State Farm 
Mutual Automobile Insurance Co.,
463 U.S. 29(1983) ..................’ ..........................  13

N.A.A.C.P. v. Button,
371 U.S. 415 (1963) ................................................. j

Perez v. United States,
402 U.S. 146(1971) ........................................ 17 ]8

Pittsburgh &L. E. R. Co. v. Railway Labor 
Executives Assn,
491 U.S. 490 (1989) ..............................................  12

Reynolds v. Sims,
377 U.S. 533 (1964) ........................................ i 2, 5

Rust v. Sullivan,
500 U.S. 173 (1991) ........................  8 ,13 ,14 ,16 ,22

Sedima S.P.R.L. v. Imrex Co., Inc.,
473 U.S. 479 (1995) . . . . '.....................................  17

Shannon v. United States,
512 U.S. 573 (1994) ..............................................  17

T ab le  o f  A u th o ritie s  (co n tin u ed )

Page

Cases (co n tin u ed ):



VI

Shaw v. Reno,
509 U.S. 630(1993) ............................................... 27

Smiley v. Citibank,
517 U.S. 735 (1996) ........................................  13,14

South Carolina v. Kalzenbach,
383 U.S. 301 (1966) ..............................................  26

State o f  Wisconsin v. New York City,
517 U.S. 1 (1996) ..............................................passim

Stone v. Internal Revenue Service,
514 U.S. 386(1995) ........................................  12, 17

Sullivan v. Stroop,
496 U.S. 478 (1990) ................................................. 7

Thornburg v. Gingles,
478 U.S. 30 (1986) ................................................. 26

Tucker v. Department o f  Commerce,
958 F.2d 1411 (7th Cir. 1 9 9 2 ).................................  3

United States Department o f  Commerce v. Montana,
503 U.S. 442 (1992) ..............................................  28

T ab le  o f  A u th o ritie s  (co n tin u ed )
Page

Cases (co n tin u ed ):



Table of Authorities (continued) 

Cases (continued):

United States House o f Representatives v. United 
States Department o f  Commerce,
1998 U.S. Dist. LEXIS 13133

vii

Page

United States v. Nordic Village, Inc.,
503 U.S. 30(1992) ................................................  11

Voinovich v. Ouilter,
507 U.S. 146(1993) ..........................................  5,27

Wells v. Rockefeller,
394 U.S. 542(1969) ..............................................  25

Wesberry v. Sanders,
376 U.S. 1 (1964) ................................................  2 ,9

White v. Weiser,
412 U.S. 783 (1973) ..............................................  25

Young v. Klutznick,
497 F. Supp. 1318 (E.D. Mich 1980), rev'don 
other grounds, 652 F.2d 617 (6th Cir. 1981) . . . .  14

Constitution and Statutes:

U.S. Const, art. I, § 2 .......................................................  2, 9

U.S. Const, art. I, § 7 17



Constitution and Statutes (continued):

2 U.S.C. § 2 a .............................................................. 2,24,25

13 U.S.C. § 141..............................................................passim

13 U.S.C. § 195............................................ .. 7, 10, 14, 18, 20

16 U.S.C. § 460w -4........................................................  1}

Pub. L. No. 88-530, 78 Stat. 737 (1964) ...........................  19

Census Act,
13 U.S.C. §§ 1 etseq. ........................................  6, 28

Decennial Census Improvement Act of 1991,
Pub. L. No. 102-135, 105 Stat. 635 (1991) . . .  5,16

1998 Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies 
Appropriations Act,
Pub. L. No. 105-119, 111 Stat. 2440 (1997) ......... 6

Voting Rights Act of 1965,
42 U.S.C. §§ 1971 etseq. .....................................  26

Regulations and Court Rules:

56 Fed. Reg. 33,582 (July 22, 1991) ............................  5,14

S. Ct. Rule 3 7 (6 ) ....................................................................  \

viii

T ab le  o f  A u th o ritie s  (co n tin u ed )
Page



IX

Legislative and Other Materials:

Mark Girsh and Ken Strasma, 1990 Census
Undercount by Congressional District,
September 20, 1998 (National Committee
for an Effective Congress) .......................................  5

Hearings before the Subcommittee on Census and 
Statistics o f  the Committee on Post Office 
and Civil Service, 91st Cong., 2d Sess. (1970) . . .  19

H.R. Rep. No. 94-944, 94th Cong., 2d Sess. (1976) . . . .  16

Programs to Reduce the Decennial Census 
Undercount: Report to the House of 
Representatives Committee on Post 
Office and Civil Service by the Comptroller 
General of the United States, GAO Rep. No. 
GGD-76-72 (1976) ................................................  19

Report on Accuracy of the 1970 Census Enumeration,
H.R. Rep. No. 91-1777, 91st Cong.,
2d Sess. (1971) .......................................................  20

S. Rep. No. 94-1256, 94th Cong., 2d Sess. (1976)...........  16

The Challenge o f the Count: Hearing before the 
House Committee on Government Reform 
and Oversight, 104th Cong., 2d Sess. (1 9 9 6 )......... 4

T ab le  o f  A u th o ritie s  (co n tin u ed )
Page



X

T ab le  o f  A u th o ritie s  (co n tin u ed )

Page

Legislative and Other Materials (continued):

United States Department of Commerce, Bureau of 
the Census, Report to Congress — The Plan 
fo r  Census 2000 (revised August, 1997) . . . .  4, 14, 1



1

Statement of Interest of Amicus Curiae

TheNAACP Legal Defense and Educational Fund, Inc. 
(LDF) was incorporated in 1939 for the purpose, inter alia, of 
rendering legal aid free of charge to indigent "Negroes suffering 
injustices by reason of race or color." Its first Director-Counsel 
was Thurgood Marshall. The Legal Defense Fund has 
participated, either as counsel to a party or amicus curiae, in 
numerous cases in this Court involving the right of African 
Americans and other racial minorities to vote and participate in 
the political process on an equal and nondiscriminatory basis, 
see, e.g., Reynolds v. Sims, 377 U.S. 533 (1964); Thornburg v. 
Gingles, 478 U.S. 30 (1986), and in cases involving the 
authority of government officials to take action against 
discrimination and its effects, see, e.g., Bob Jones University v. 
United States, 461 U.S. 574 (1983); see generally N.A.A.C.P. 
v. Button, 371 U.S. 415, 422 (1963) (describing Legal Defense 
Fund as a “‘firm’ . . . which has a corporate reputation for 
expertness in presenting and arguing the difficult questions of 
law that frequently arise in civil rights litigation”).

This case implicates both of those longstanding 
concerns. The right to be counted in the decennial census is 
inextricably intertwined with the right to equal representation. 
Moreover, the eradication of discrimination depends critically on 
recognizing both the authority and the responsibility of 
government officials, like the Secretary of Commerce here, to 
take actions that advance fairness and equality.

"Pursuant to the Court’s Rule 37.6, Amicus certifies that no portion 
of this bnef has been authored by counsel for any of the parties and that no 
monetary contribution toward the preparation or submission of this bnef has 
been made by any person or entity other than the Amicus Curiae. The parties’ 
letters of consent to the filing of this Brief have been lodged with the Clerk.



2

Introduction

The centerpiece of the Nation's democratic process is the 
right to equal representation. Article I, § 2 of the United States 
Constitution, as amended, provides that States be represented in 
Congress “according to their respective numbers,” and this 
Court has long recognized a personal, Fourteenth Amendment 
right to an “equally effective voice” in the election of the 
government. Reynolds v. Sims, 377 U.S. 533, 565 (1964).

Recognizing that the constitutional mandate of “equal 
representation for equal numbers of people,” Wesberry v. 
Sanders, 376 U.S. 1, 18 (1964), could only be realized if those 
people are accurately counted, the Framers made provision for 
a decennial census, U.S. Const, art. I, § 2, to be taken “in such 
Manner as [Congress] shall by Law Direct,” id. Congress, in 
turn, has conferred broad power on the Secretary of Commerce, 
13 U.S.C. § 141, who has the authority to take the decennial 
apportionment census “in such form and content as he shall 
determine,” id., § 141(a).

Census data supply the basis for reapportionment of the 
House of Representatives, see 2 U.S.C. § 2a, for drawing new 
congressional districts, see Karcher v. Daggett, 462 U.S. 725, 
738 (1983) (the census count “is the only basis for good faith 
attempts to achieve population equality”); id. at 731 (“Adopting 
any standard other than population equality, using the best 
census data available, would subtly erode the Constitution's 
ideal of equal representation”) (emphasis supplied), and, as a 
practical matter, for State and local redistricting decisions, as 
well, see 13 U.S.C. § 141(c). And just as an accurate census is 
critical to achieving the constitutional ideal, deviations from 
accuracy, as the District Court in this case acknowledged, risk 
malapportionment and vote dilution. See United States House 
o f Representatives v. United States Department o f Commerce,



3

1998 U.S. Dist. LEXIS 13133, at *4 (D.D.C. 1998) (three- 
judge court) (hereinafter cited as “U.S. House”).

a. The Differential Undercount and Its Consequences

There is no dispute that the census has, consistently, 
fallen short of its goal of providing an accurate, actual 
enumeration of the United States population. Rather, “[i]t is 
thought that [there has been] . . .  a net ‘undercount’ of the 
actual American population in every decennial census.” State o f  
Wisconsin v. New York City, 517 U.S. 1,6 (1996).

Moreover, these shortfalls have not been evenly 
distributed: groups that have historically been denied access to 
the political process — African Americans, Latinos, and Native 
Americans among them — have been found to suffer the highest 
rates of undercount. As the decision of the court below in this 
case recognized, this differential undercount (with its 
concomitant threats to equal representation) is “among the most 
troubling aspects of the census in the late 20th century,” 1998 
U.S. Dist. LEXIS 13133, at *4 n.2; see also Wisconsin, 517 
U.S. at 7 (acknowledging differential undercount of African- 
Americans in 1980 census); City o f Detroit v. Franklin, 4 F.3d 
1367, 1371 (6th Cir. 1993) (noting that in the 1990 Census 
African Americans and other minorities were undercounted to 
a greater degree than non-Hispamc whites); Tucker v. 
Department o f Commerce, 958 F.2d 1411, 1412-13 (7th Cir. 
1992) (same).

Finally, both the general undercount and the disparate 
undercounting of racial and ethnic minorities persist. In fact, 
both problems were found to have been of greater magnitude in 
the most recent census than they had been in its predecessor: 
‘“For the first time since the Census Bureau began conducting 
post-census evaluations in 1940, the decennial census was less 
accurate than its predecessor.’” U.S. House, 1998 U.S. Dist. 
LEXIS 13133, at *3 (quoting United States Department of



4

Commerce, Bureau of the Census, Report to the Congress — 
The Plan fo r  Census 2000 (revised August 1997) (“Census 
Report”) at 2); The Challenge o f the Count: Hearing before the 
House Committee on Government Reform and Oversight, 104th 
Cong., 2d Sess. 4 (June 6, 1996) (Statement of Rep. Collins) 
(“For the first time in 50 years, the differential between the 
African-American undercount and the white undercount went 
up”). The Bureau has found that the 1990 Census excluded 4.4 
percent of African Americans, 5.0 percent of Hispanics, and 
12.2 percent of Native Americans living on reservations, as 
against only 0.7% of the non-Hispanic white population. See 
Census Report at 3-4 Indeed, each of the ten congressional 
districts most affected by the 1990 undercount has a minority 
population in excess of 62%:

District
Net Undercount %

African-
American

%
Hispanic

Number Rank

NY 16 40,245 1 33.6 60.2

NY 11 36,123 2 70.4 11.6

NY 15 35,705 3 37.1 46.9

CA 35 35,604 4 41.3 43.0

CA 37 31,201 5 33.1 45.1

NY 12 30,561 6 8.9 58.6

NY 10 30,471 7 57.4 19.9

CA 32 30,174 8 39.1 30.4

CA 33 28,678 9 3.8 84.1

CA 20 27,982 10 6.1 56.3



5

Mark Girsh and Ken Strasma, 1990 Census Under count by 
Congressional District, September 20, 1998 (National
Committee for an Effective Congress).

In these districts, the votes of minority citizens were 
given less weight as compared to districts in which residents 
were accurately counted, a result that this Court has held is 
tantamount to a direct barrier to the right to cast a ballot: “[The] 
right of suffrage can be denied by . . . dilution of the weight of 
a citizen's vote just as effectively as by wholly prohibiting the 
free exercise of the franchise.” Reynolds, 377 U.S. at 555; cf. 
Voinovich v. Quilter, 507 U.S. 146, 153-54 (1993) (noting 
danger of vote dilution that arises from “packing” minority 
voters in single district).

b. The Governmental Response

The undercount problem has been the subject of 
intensive study, both inside and outside the Census Bureau, for 
nearly three decades. In the years leading up to and immediately 
following the 1990 Census, serious consideration was given to 
using statistical methods to yield a more accurate population 
count, see Wisconsin, 517 U.S. at 7-12; 56 Fed. Reg. 33,582 
(July 22, 1991), and official concern intensified as the troubling 
aspects o f the 1990 count became known. Consequently, in 
1991, Congress directed that the National Academy of Sciences 
be commissioned to study ways in which the government could 
achieve the most accurate census possible. See Decennial 
Census Improvement Act of 1991, Pub. L. No. 102-135, 105 
Stat. 635 (1991), codified at 13 U.S.C. § 141 (note).

In addition to offering numerous other recommendations 
aimed at improving the quality of the census, the three panels 
convened by the Academy were unanimous on one point: that 
proper use of statistical sampling techniques would improve the 
accuracy of the Census. See U.S. House, 1998 U.S. Dist. LEXIS 
13133, at *5. In light of these studies, as well as its “ninety



6

years o f census-taking experience, meetings with the public in 
thirty cities, congressional input, and advice from no fewer than 
six advisory committees,” id. at *5-*6, the Census Bureau 
developed its design for conducting the 2000 Census. In 
addition to its many planned efforts to improve the efficacy of 
conventional census-taking techniques, see id. at *6 n.3, the 
Bureau has indicated its intention to make use of statistical 
sampling methods that will make the census more accurate.

Pursuant to a statutory provision enacted into the 1998 
Departments of Commerce, Justice, and State, the Judiciary, and 
Related Agencies Appropriations Act, Pub. L. No. 105-119, 111 
Stat. 2440, 2480-87 (1997), plaintiff-appellee United States 
House of Representatives brought suit challenging the legality 
(on both constitutional and statutory grounds) of the Bureau’s 
planned course. Without reaching the House’s constitutional 
arguments, the court below accepted the House’s argument that 
any use of statistical sampling in connection with apportionment 
was irreconcilable with the strictures of the Census Act, 13 
U.S.C. §§ 1 etseq.

As we demonstrate below, that decision was incorrect as 
a matter of statutory interpretation, is especially troubling in 
light of the constitutional purposes the census must serve and 
threatens to result in a decade of unequal representation and 
minority vote dilution that the Apportionment Clause, the 
Fourteenth and Fifteenth Amendments and the Due Process 
Clause of the Fifth Amendment proscribe.

Summary of Argument

The question this case presents is whether the Census 
Act, 13 U.S.C. § 1 et seq., must be read as requiring that the 
Secretary of Commerce conduct a census that (1) in the expert 
judgment of the Census Bureau, would not be accurate; (2) 
would result in the abridgement of the votes of minority citizens; 
and (3) would lead to inevitable and wholly unjustifiable



7

inequalities in apportionment. The court below, relying on 
isolated and concededly ambiguous language in one statutory 
section, ruled that Congress had, in fact, compelled such an 
extraordinary result. That decision reflects two critical errors.

First, ordinary rules of statutory interpretation establish 
that the statute that the Court is called upon to construe includes 
no such troubling limitation on the Secretary's ability to conduct 
a fair and accurate census. Rather, the provision specifically 
conferring authority on the Secretary to “take a decennial census 
of the population,” 13 U.S.C. § 141(a), also includes express 
and clear provision for the Secretary to use “sampling 
procedures” — a grant of power that would be a nullity if the 
reading adopted below were correct. It is in light of this 
provision (and § 141(b), which further clarifies that the 
“tabulation” made under subsection (a) is the one to be used for 
“apportionment of Representatives in Congress”) that the 
“except for . . ” clause that so troubled the court below, see 13 
U.S.C. § 195, may properly be understood: not as a bar on all 
apportionment-related use of statistical sampling, but as an 
exemption from an otherwise mandatory obligation to use such 
methods ~  and as evidence of Congress's longstanding 
commitment to census accuracy.

Because this is the only interpretation that is fully 
consistent with the statutory text, this Court’s statutory 
interpretation cases teach that the judicial inquiry “is at an end.” 
See, e.g., Sullivan v. Stroop, 496 U.S. 478, 485 (1990). But 
even if the statute as a whole could be said to be ambiguous 
with respect to apportionment-related sampling (as opposed to 
§195, which, standing by itself, undeniably is ambiguous), the 
principles announced in Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837 (1984), would 
oblige the Court to accept the Secretary’s interpretation. 
Chevron requires that “substantial deference [be] accorded to



the interpretation of the authorizing statute by the agency 
authorized with administering it,” Rust v. Sullivan, 500 U.S. 
173, 184 (1991) (citing Chevron, 467 U.S. at 844), a rule that 
applies even when “[t]he cour t . . . conclude^] that the agency 
construction was not the only one it could permissibly have 
adopted . . .  or even the reading the court would have reached” 
as a matter of first impression, Chevron, 467 U.S. at 843 n. 11. 
This obligation applies with special force here, because the 
statute at issue has been read by this Court to confer Congress’s 
“virtually unlimited discretion” on the Secretary, see Wisconsin, 
517 U.S. at 19; see also id. at 20 (Secretary’s decision “need 
bear only a reasonable relationship to the accomplishment of an 
actual enumeration of the population, keeping in mind the 
constitutional purpose of the census”). The court below erred 
seriously in refusing to give effect to this principle.

Indeed, even absent deference, the interpretation 
accepted below ~  whereby Congress uniquely and categorically 
withheld authority to use of “the statistical method known as 
‘sampling’” in conjunction with apportionment — would make 
scant sense. So long as the Secretary is authorized to use other 
statistical techniques (which have precisely the same alleged 
“vices” attributed to the “method known as ‘sampling,’” see 
infra) and is otherwise vested with broad discretion to adjust the 
census as he sees fit, see generally Franklin v. Massachusetts, 
505 U.S. 788 (1992), the prohibition read into the statute by the 
court below serves no purpose other than to hamper the taking 
of a census that — in the judgment of the Census Bureau and of 
an extraordinary array of outside statistical experts -  would be 
both more accurate and more fair. See Wisconsin, 517 U.S. at 
19-20 (review under the Apportionment Clause must not lose 
sight of ‘“ the constitutional goal of equal representation’”) 
(quotingFranklin, 505 U.S. at 804).

Nor is the result reached below compelled by the 
language — or the lacunae — of the pertinent legislative history



9

or by the need to steer clear of any serious constitutional 
question. To the contrary, the committee reports explaining the 
1976 amendments to the Census Act are fully supportive of the 
Secretary’s authority, and familiarity with events leading up to 
those amendments make the construction given below seem that 
much more strained. As for “constitutional avoidance,” the 
argument that the Constitution’s reference to an “actual 
Enumeration,” U.S. Const, art. I, § 2, rules out use of reliable 
and valid statistical methods of ascertaining the population 
proves to be insubstantial — and therefore provides no basis for 
giving the Act an unnatural and illogical construction.

In fact, the serious constitutional considerations are all 
on the other side o f the argument, and that is the second error 
of the decision below: failure to “keep[] in mind the 
constitutional purposes of the census,” Wisconsin, 517 U.S. at 
20, in construing the Act. See Wesberry, 376 U.S. at 18 (there 
“is no excuse for ignoring our Constitution’s plain objective of 
making equal representation for equal numbers of people the 
fundamental goal for the House of Representatives”). The court 
below treated as irrelevant the fact that the census planned by 
the Commerce Department has been determined to be more fair 
and more accurate in all constitutionally relevant respects, and 
less likely to yield discriminatory results than any alternative. In 
light of the purpose of the census, it would be extraordinary to 
construe the Secretary’s authority to conduct an accurate census 
more narrowly than his discretion not to do so, see Wisconsin, 
especially because the former course implicates the Executive’s 
independent responsibility to advance equality and 
nondiscrimination. See Bob Jones University v. United States, 
461 U.S. 574 (1983). Indeed, a census conducted with 
unjustified disregard for expert and administrative judgments 
concerning accuracy would raise serious constitutional 
questions, even under the forgiving standard announced in 
Wisconsin.



10

ARGUMENT

I. Straightforward Principles of Statutory
Construction Foreclose the Interpretation
Given the Census Act by the Court Below

The decision below took an extremely unorthodox and 
circuitous approach to construing the pertinent statute. Even 
while professing to be giving effect to the unambiguous “plain 
meaning” of the statutory text, U.S. House, 1998 U.S. Dist. 
LEXIS 13133, at *68 n.11, the District Court in fact conceded 
that the language of the lone clause supporting its interpretation, 
13 U.S.C. § 195, is susceptible to two critically different 
readings: one, authorizing (but not requiring) sampling 
techniques in conjunction with apportionment and the other 
prohibiting them. See id. at *75-76 (noting that permissive 
reading is correct in “some instances,” but that prohibitory one 
is right “more often than not”). To resolve that ambiguity, the 
court turned not to the text of other provisions of the same 
statute or to the interpretation of the executive agency charged 
with administering it, see infra, but rather to the text and 
legislative history of an earlier version of the provision. 
Interpreting that history as ruling out use of statistical sampling 
in conducting (or correcting) the decennial census, the court 
then returned to the current, amended version of the provision, 
holding that while its text had been changed, there was 
insufficient clamor evident in the legislative history of the 1976 
amendments to infer that Congress had, in fact, backed away 
from (what the court took to be) its prior position. Only then 
did the court look to the current (amended) version of 13 U.S.C. 
§141, concluding that the provision could not mean what it says, 
i.e., that the Secretary is authorized to take the decennial census 
“in such form and content as he shall determine, including the 
use of sampling procedures,” because that reading would be in 
conflict with the “more specific” language in 13 U.S.C. §195,



11

which, according to a venerable canon of construction, must 
control. U.S. House, 1998 U.S. Dist. LEXIS 13133, at *88.

A. The Plain Terms of the Statute Authorize 
the Use of Statistical Sampling to Correct 
the Inaccuracies in the Apportionment 
Census

This was not the right way to read a federal statute. 
Once it is recognized that the “except . . . shall” statutory 
language may be construed either as permissive — as it is in 
other provisions of the U.S. Code, see, e.g., 16 U.S.C. § 460w- 
4 -  or prohibitory, the proper response is not to embark on the 
sort of “detective[]” work, U.S. House, 1998 U.S. Dist. LEXIS 
13133, at *80, for which the judiciary is ill-equipped (/.<?., 
discerning the “background knowledge” of the legislators who 
enacted the provision). Rather, the court should seek the 
answer in the text and structure of other provisions of the same 
statute. SeeK M art Corp. v. Cartier, Inc., 486 U.S. 281, 291- 
92 (1988).

Such an exercise produces a satisfying result in this case: 
while §195 is ambiguous, §141 is not. It straightforwardly 
authorizes use of “sampling procedures” in conjunction with the 
“decennial census,” 13 U.S.C. § 141(a), and indeed makes 
explicit that the census it authorizes is the one that must be used 
for apportionment purposes, ids, see also id., § 141(b). Giving 
this provision its plain meaning neither conflicts with nor renders 
superfluous the “except for” language of section 195. Cf. 
United States v. Nordic Village, Inc., 503 U.S. 30, 36 (1992) 
(“a statute must, if possible, be construed in such fashion that 
every word has some operative effect”). Rather, that clause 
performs an important purpose, providing that sampling, 
although mandated in connection with other of the Secretary’s 
census responsibilities, is discretionary with respect to 
apportionment-related enumeration.



12

The reading settled on below does not have this virtue. 
Rather than construing the two (simultaneously enacted and 
amended) provisions as consistent with one another, it finds 
them to be in conflict, and, declaring § 141 to be the “less 
specific,” deprives it of any legal significance. But see 
Pittsburgh & L. E. R. Co. v. Railway Labor Executives Ass ’n, 
491 U.S. 490, 510 (1989) (“when two statutes are capable of 
co-existence, it is the duty of the courts . . .  to regard each as 
effective”) (quoting Morton v. Mancari, 417 U.S. 535, 551 
(1974)); Stone v. Internal Revenue Service, 514 U.S. 386, 397 
(1995) (“when Congress acts to amend a statute, we presume 
that it intends its amendment to have real and substantial 
effect”).

B. The Secretary's Determination Is Owed 
Deference

In fact, the unconventional methodology used by the 
court below would have been inappropriate even were there not 
a provision like §141 at hand to resolve the ambiguity inherent 
in the phrasing of §195. This Court’s cases require that, in the 
absence of clear textual direction, a court must accept the 
construction of the Executive official charged with administering 
the statute, unless that interpretation is unreasonable. See 
Chevron, 467 U.S. at 843 (deference principles apply in cases of 
both statutory silence and ambiguity). Indeed, the Court’s 
decisions in Wisconsin and Franklin articulated, if anything, an 
even more deferential standard, directing that “so long as the 
Secretary's conduct of the census is ‘consistent with the 
constitutional language and the constitutional goal of equal 
representation,”’ it must not be overturned. See Wisconsin, 
517 U.S. at 19-20 (citing Franklin, 505 U.S. at 802); see also 
517 U.S. at 20 (Secretary’s decision whether or not to adjust 
“need bear only a reasonable relationship to the accomplishment



13

of an actual enumeration of the population, keeping in mind the 
constitutional purpose of the census”).1

In a single footnote, see U.S. House, 1998 U.S. Dist. 
LEXIS 13133, at *68 n.l l ,  the court below declared this 
obligation to be inoperative in this case, on the ground that (1) 
the plain meaning of the statute is clear; (2) the Secretary had 
reversed his position on the issue; and (3) he had not “‘amply 
justified his changed interpretation with a reasoned analysis,’” 
id. (quoting Rust v. Sullivan, 500 U.S. at 187, and Motor 
Vehicle Manufacturers Ass ’n v. State Farm Mutual Automobile 
Insurance Co., 463 U.S. 29, 42 (1983)).

The three reasons proffered do not state a valid basis for 
disregarding the Chevron rule in this case. First, as explained 
above, the District Court decision itself acknowledged that the 
meaning of even the most helpful statutory provision cannot be 
said to “plainly” rule out all use of sampling. As for the second 
and third distinctions, Chevron rejected the assertion that agency 
interpretation is undeserving of deference whenever “it 
represents a sharp break with prior interpretations,” 467 U.S. at 
862; see also Smiley v. Citibank, 517 U.S. 735, 742 (1996) 
(“change is not invalidating, because the whole point of Chevron 
is to leave the discretion provided by the ambiguities of a statute 
with the implementing agency”), and, as is explained below, any 
suggestion that the Secretary's decision to incorporate statistical 
methods in the 2000 Census was not supported by "reasoned 
analysis" is wholly untenable.

As an initial matter, the challenged interpretation reflects 
no recent shift in the administrative understanding of the statute,

'In Wisconsin, the Court treated the statutory grant of power (and 
discretion) to be essentially coextensive with that conferred on Congress by the 
Constitution. See 517 U.S. at 19; but cf. id. at n.10 (declining to address 
possible relevance of § 195).



14

see Smiley, 517 U.S. at 742 (noting that a “[s]udden and 
unexplained change” is more likely to be adjudged “arbitrary and 
capricious”). The view that §195 does not foreclose use of 
sampling to correct for undercounting was taken by the previous 
administration, which regarded the decision whether or not to 
use sampling data, see Wisconsin, as one committed (by § 141) 
to the Secretary's discretion. See 56 Fed. Reg. at 33,605-06. 
That view, in turn, reflected the unanimous interpretation of 
federal courts that had examined the statute, see City o f  New 
Yorkv. U.S. Department o f  Commerce, 739 F. Supp. 761, 767 
(E.D.N.Y. 1990) (“It is no longer novel, or in any sense, new to 
declare that statistical adjustment of the decennial census is both 
legal and constitutional”), rev'd on other grounds, 34 F.3d 1114 
(2d Cir. 1994), rev'd on other grounds sub nom. State o f  
Wisconsin v. New York City, 517 U.S. 1 (1996); City o f  
Philadelphia v. Klutznick, 503 F. Supp. 663, 679 (E.D. Pa. 
1980); Carey v. Klutznick, 508 F. Supp. 404, 415 (S.D.N.Y.
1980) ; Young v. Klutznick, 497 F. Supp. 1318, 1335 (E.D. 
Mich. 1980), rev'd on other grounds, 652 F.2d 617 (6th Cir.
1981) , and that of the Department of Justice, the GAO, and the 
Department of Commerce Inspector General. See Census 
Report at 54.

Second, the decision to reconsider use of a statistical 
method in light of evolving scientific knowledge is the sort of 
policy change that should excite the least judicial suspicion 
under any circumstances. Compare Rust, 500 U.S. at 187 
(relying in part on administration’s “shift in attitude against the 
'elimination of unborn children by abortion”); cf. Chevron 467 
U.S. at 863 (noting that challenged decisions arose "in a 
technical and complex arena"). Indeed, Chevron teaches that 
informed agency rulemaking “must consider varying 
interpretations and the wisdom of [existing] policy on a 
continuing basis.” 467 U.S. at 863 (emphasis supplied). 
Previous administrations gave serious consideration to these



15

methods, ultimately determining that further testing and 
refinement were needed before they should be used in 
conjunction with apportionment.2

Indeed, it is not easy to fathom how an observer familiar 
— as the opinion of the court below shows it to have been, see 
1998 U.S. Dist. LEXIS 13133, at *5-6 -  with the lengthy, 
rigorous and scholarly consideration given the undercount 
correction question by the Secretary, the Census Bureau, and 
numerous outside advisors could possibly find the ultimate 
decision not to rest on “reasoned analysis.” As the lower court 
itself reported: The use of sampling methods to improve the 
accuracy of the census has been under intensive study within the 
Census Bureau and in the statistical community for more than a 
decade; public hearings were held in thirty cities; the views of no 
fewer than six federally chartered outside advisory committees — 
representing, among others, the American Statistical 
Association, the American Population Association, and the 
American Economic Association — were solicited. See Census 
Report at 8-9.

Nor was this reconsideration instigated (or 
accomplished) unilaterally by the Executive Branch: Congress 
enacted the law providing for the National Academy of Sciences 
(NAS) to study “the means by which the Government could 
achieve the most accurate population count possible,” including 
“the appropriateness of using sampling techniques, in 
conjunction with basic data-collection techniques or otherwise,”

2The main theme of Secretary Mosbacher's decision not to approve 
adjustment was that sampling should be studied further before bemg 
implemented. That has now been done. A second major concern was 
“distributive accuracy,” i.e., that the sample conducted in 1990, although 
undeniably more accurate at the national level, was not so clearly superior as 
among the States and at the sub-State level. See also Wisconsin, 517 U.S. at 
22 (noting that sample used other States to determine a State’s apportionment). 
That criticism has been addressed directly m the plan for 2000.



16

see the Decennial Census Improvement Act of 1991, Pub. L. 
No. 102-135, 105 Stat. 635 (1991) — a process that resulted in 
unanimous judgment of three separate NAS panels that sampling 
was appropriate. Thus, by almost any measure, the Secretary’s 
determination to incorporate statistical sampling methodology 
to improve the accuracy of the 2000 census must rank among 
the most well-informed and carefully considered decisions in the 
recent history of the Executive Branch; the deliberative process 
in Rust — and almost any other instance of agency 
decisionmaking — appears capricious in comparison. On no 
even possibly correct reading of Chevron and Rust, then, can 
this rigorous and prolonged study of the question — enlisting 
countless outside experts in the design, analysis, and 
implementation of the Census Plan — be said to constitute an 
insufficiently “reasoned basis” for the Secretary's decision.

C. The Decision Below Erred in Giving 
Dispositive Weight to (Relative)
Legislative Silence

A distinctive feature of the conclusion reached by the 
court below is that it did not rest primarily on positive legislative 
history supporting its thesis — i.e, any explicit indications in the 
committee reports that the 94th Congress understood the 
amended § 195 as an absolute ban on considering statistical 
sampling in connection with apportionment — nor even on 
congressional silence. To the contrary, the relevant legislative 
materials are fully consonant with the Secretary's interpretation, 
and they provide no positive support for the contrary position. 
See, e.g., S. Rep. No. 94-1256 at 1 (1976) (explaining that § 
141(a) contains “new language . . .  to encourage the use of 
sampling in the taking of the decennial census”); see also id. at 
6 (explaining that § 195 “as amended strengthens congressional 
intent that, whenever possible, sampling shall be used”); H.R. 
Rep. No. 94-944 at 6 (under amendments, sampling should be 
used “whenever possible”).



17

Instead, the ailing below places unusual faith in its 
judgment that the “‘watchdog . . .  did not bark in the night,’” 
U.S. House, 1998 U.S. Dist. LEXIS 13133, at *80 (quoting 
Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991) and Harrison 
v. PPG Industries, Inc, 446 U.S. 578, 602 (1980) (Rehnquist, 
J., dissenting)), i.e., a perception that the legislative history of 
the 1976 amendments is neither as extensive nor as explicit as 
would be expected had Congress jettisoned the categorical 
prohibition the court believed it to have established two decades 
earlier (not to mention the alleged "two hundred year tradition" 
of not using statistical methods).

There are two problems with this approach. First, as a 
general matter, the many reasons — both constitutional and 
empirical — for hesitating before relying on legislative history 
over statutory text, see Shannon v. United States, 512 U.S. 573 
(1994); Chicago v. Environmental Defense Futtd, 511 U.S. 328, 
337 (1994) ("[I]t is the statute, and not the Committee Report, 
which is the authoritative expression of the law"); see generally 
Conroy v. Aniskojf, 507 U.S. 511, 519, 527-28 (1993) (Scalia, 
J., concurring), only multiply when it is “silence” in the 
legislative history that is held out as trumping expression in the 
text. There is no requirement that Congress make its views 
known in any form other than an enacted statute, see U.S. 
Const. Art. I §7; see generally Morales v. Trans World Airlines, 
Inc., 504 U.S. 374, 419 (1992) (“Suffice it to say that legislative 
history need not confirm the details of changes in the law 
effected by statutory language before we will interpret that 
language according to its natural meaning”).3 The perils are

3Accord Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496-97 
n. 13 (1995) (“congressional silence, no matter how ‘clanging,’ cannot ovemde 
the words of the statute”); Stone v. Internal Revenue Service, 514U.S. at397 
(“when Congress acts to amend a statute, we presume that it intends its 
amendment to have real and substantial effect”). Cf. Perez v. United States,



18

most acute, however, where, as here, the argument for 
disregarding statutory text is not based on silence in the 
legislative history, but rather on a perception that Congress was 
not as loud as it might be expected to have been. See U.S. 
House, 1998 U.S. Dist. LEXIS 13133, at * *83.4

Second, consideration of general validity aside, the 
“bark” hypothesis has particularly little explanatory power in this 
case. The theory assumes that, before amending the Act in 
1976, Congress understood the limitations of § 195 to be as 
stringent as the court below believed them to be based on its 
reading the text and legislative history of the 1957 version. In 
fact, the Congress that amended the Census Act in 1976 had 
more to consider than the cold text of the 1957 version and its 
accompanying committee reports. The understanding of the 
Committee that would eventually report out the 1976 
amendments as to the scope o f the Secretary’s authority was 
informed by its experience overseeing the conduct of the 1970 
Census, which had — notwithstanding § 195 — used two 
statistical methods similar to those proposed for 2000 (albeit less 
sophisticated or extensive) and had added more than 1,500,000 
people to the total generated by “traditional” “headcount”

402 U.S. 146,156 (1971) (“Congress need [not] make particularized findings 
in order to legislate”).

*Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991), relied upon 
below, involved a starkly different situation. There, the purpose of 1982 
amendments (and of the disputed statutory provision, in particular) was to 
expand the reach of the Voting Rights Act, a theme that pervades the legislative 
history and the text of the Act, making the argued-for implied limitation highly 
improbable. By contrast, the thrust of the 1976 Amendments was wholly in the 
direction of favoring use of sampling.



19

methods.5 See Hearings before the Subcommittee on Census 
and Statistics o f  the Committee on Post Office and Civil 
Service, 91st Cong., 2d Sess. 6 (1970); Report on Accuracy of 
the 1970 Census Enumeration, H.R. Rep. No. 91-1777, 91st 
Cong., 2d Sess., at 22 (1971); Programs to Reduce the 
Decennial Census Undercount Report to the House of 
Representatives Committee on Post Office and Civil Service by 
the Comptroller General of the United States, GAO Rep. No. 
GGD-76-72 (1976).6

Rather than “bark” — and object to methods that 
seemingly transgressed the hypothesized statutory and 
constitutional barriers to statistical adjustment — the Committee

5It is not wholly correct to refer to the methods for conducting the 
census as either “traditional” or a “headcount.” As for the former, the 1970 
census had, in a distinct break with the past, turned to mail-in “self­
enumeration,” after nearly two centuries of door-to-door visiting by census- 
takers. See Pub. L. No. 88-530, 78 Stat. 737 (1964) (eliminating requirement 
of in-person visit by enumerator). As for the “headcount,” the image of a 
physical count obscures the extent to which self-reporting and other forms of 
hearsay, see U.S. House, 1998 U.S. Dist. LEXIS 13133, at *8 (notmg use of 
“proxy data” in 1990 census), rather than m-person, one-by-one “reckoning,” 
have long been the basis for the enumeration.

6First, the Bureau, concerned that a substantial share of the housing 
units reported to be “vacant” were, in fact, occupied, undertook a “post 
vacancy re-check,” whereby 13,546 of the units recorded as vacant were re­
surveyed. When it was found that 11 % of this sample were, in fact, occupied, 
the Bureau decided that it would deem 11 % of the all units rated vacant to be 
“occupied,” as well. Then, to determine the number of additional people these 
housing units would contribute, the Bureau resorted to a statistical method 
known as “imputation,” whereby each unit would be considered to be occupied 
by the same number of people found in households with similar characteristics. 
This effort resulted in the addition of 1,069,000 people to the 1970 census 
count. A second effort, known as the “Post Enumeration Post Office Check,” 
used a similar methodology to correct for the undercount of rural populations 
in 16 southern states, resulting in the addition of another 480,000 people to the 
final census figure.



20

that drafted the provisions that ultimately became law in 1976 
applauded the Bureau’s efforts. The Committee pronounced 
itself “most impressed with the effectiveness of the Post Office 
Check as a check on the adequacy of the enumeration coverage 
in the conventional door-to-door enumeration areas” and urged 
further appropriations for similar programs in the future. See 
Report on Accuracy of the 1970 Census Enumeration, H.R. 
Rep. No. 91-1777, at 22, 37, 41.

This background in turn, suggests a wholly different and 
more plausible explanation for what the court below found so 
telling: the relative absence of hue and cry accompanying the 
1976 amendments. If (whatever the initial intent of the 84th 
Congress) the 94th Congress interpreted § 195 as a limitation 
not on the Secretary’s authority to use statistical methods to 
supplement (and correct) data gathered through more traditional 
means, but as, at most, affecting his freedom to substitute less 
accurate measures for the (assumed) more accurate, but more 
cumbersome physical collection methods, amendments 
confirming that understanding or even committing all 
apportionment-related sampling decisions to the Secretary's 
discretion would not have elicited much of a “bark.”

D. A Complete Prohibition on the “Statistical 
Method Known as ‘Sampling’” -- and Only 
that Method -- Would Make No Sense

Indeed, this reading suggests an answer to one of the 
central difficulties facing the statutory interpretation upon which 
Plaintiff has insisted: If Congress had been concerned (as was 
argued below) with respecting an alleged distinction between 
“actual enumeration” (“counting”) and “estimation,” what 
reason would there be to limit the “prohibition” of § 195 to “the 
statistical method known as ‘sampling’”? Other methods of 
correction — such as imputation — share precisely the same 
“vice” attributed to “sampling”: generalizing from (sophisticated



21

and statistically valid) assumptions about homogeneity of 
subpopulations.7

The most plausible basis for distinguishing “sampling” 
from these other methods is that the others were believed to 
yield exclusively accuracy-improving adjustments, whereas 
sampling may have been seen as having a more dual nature, 
laudably increasing accuracy when used as a “check” on more 
imprecise methods, but decreasing it if used as a substitute for 
the Department’s traditional (and presumed-to-be more 
accurate) methods. Such a reading brings the main thrust of § 
195 into line with Congress’s prime responsibility under the 
Constitution: to assure an accurate census. So understood, the 
statute distinguishes apportionment from other activities — not 
for the purpose of limiting the Secretary's discretion to use 
scientifically valid methods to improve the accuracy of the 
apportionment census — but rather to emphasize that, with 
respect to this one paramount responsibility, accuracy should 
not be sacrificed.8

7The only alternative would be to construe the alleged prohibition on 
“the statistical method known as ‘sampling”’ as extending to all statistical 
methods, including, for example, imputation. But that is an interpretation that 
the statute’s language cannot possibly bear -  especially when read in light of 
the 94th Congress’s familiarity with the Census Bureau’s then-recent use of 
imputation.

8Plaintiff has raised the specter that, under Defendants’ reading, 
nothing in the statute would prevent the Secretary from adopting a census based 
entirely on statistical methods. That is a red herring. First, that hypothetical is 
far removed from the census actually planned for 2000 — which, among other 
things provides for multiple, individual contacts with every known household 
in the Nation and which represents only an incremental change from 1990 -  
and one supported by substantial scientific consensus. As a practical matter, 
there is no such consensus for a fundamentally different methodology, and any 
such drastic change would require the cooperation of Congress (which would 
have to appropriate funds and retains ultimate authority to “direct” the manner 
in which the census is taken) and the approval of the judiciary, which would



22

E. The Constitutional Argument Against the 
Planned Census Is Insubstantial

Indeed, the only arguable virtue of reading the statute 
the way the decision below did is that it relieved the court of 
responsibility for determining whether the Constitution, by its 
own force, prescribes that the census entail some sort of physical 
headcount (and only that). See Rust v. Sullivan, 500 U.S. at 191 
(noting principle that “a statute must be construed, if fairly 
possible, so as to avoid . . . grave doubts” as to its 
unconstitutionality). That “constitutional” argument, however, 
is not serious enough to warrant the Court’s avoiding it by 
constructing a very different — and far more constitutionally 
troubling, see infra — statute than the one Congress actually 
enacted. C f Rust, 500 U.S. at 191 (“avoidance of a difficulty 
will not be pressed to the point of disingenuous evasion”) 
(quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 
(1933)).

The crux of the claim that the purported prohibition on 
statistical sampling is of constitutional magnitude rests on an 
interpretation of the phrase “actual Enumeration.” The intended 
meaning of “actual Enumeration” becomes quite clear when 
considered in the full context of the constitutional language:

Representatives . . . shall be apportioned among the 
several States . . . according to their respective 
Numbers. . . . The actual Enumeration shall be made 
within three Years after the Meeting of the Congress of 
the United States, and within every subsequent Term of 
ten Years, in such Manner as they shall by Law 
direct. . . . [U]ntil such enumeration shall be made, the 
State of New Hampshire shall be entitled to chuse three,

review the Secretary’s decision for consistency with the standard announced in 
Wisconsin.



23

Massachusetts eight, Rhode Island and Providence 
plantations one, Connecticut five, New York six, New 
Jersey four, Pennsylvania eight, Delaware one, Maryland 
six, Virginia ten, North Carolina five, South Carolina 
five, and Georgia three.

As the context makes clear, the phrase “actual Enumeration” is 
used not to prescribe (or proscribe) a particular manner for 
taking the census but rather to distinguish the contemplated 
decennial census from the first, provisional allocation of House 
seats — a political compromise that was neither based on any 
attempt to determine accurately the populations of the States, 
nor reflective of any single, precise principle of apportionment.

In the court below, the Plaintiff gathered numerous 
definitions of “actual” and “enumerate” extracted from 
contemporaneous dictionaries, in the service of an argument that 
the Framers understood the two words together to bind their 
descendants to a particular method of census-taking. But there 
are numerous problems with this sort of “originalism.”9 First, 
the term “enumerate” does not appear in the text of the 
Constitution, while the word that does, “enumeration” (which is 
often used to mean a total, without regard to the method used

9Indeed, it is arguably not originalism at all. The apportionment for 
which the 2000 Census will be used is not the one contemplated in Article I, 
but rather the one provided for in the Fourteenth Amendment. See 44 
Liquormartv. Rhode Island, 517 U.S. 484, 517 (1996) (Scalia, J., concurring) 
(noting that practices at time of ratification of Fourteenth Amendment may be 
“more relevant” than those of the eighteenth century in interpreting Free 
Speech Clause, as “incorporated”). There is no evidence that the Framers and 
ratifiers of the Fourteenth Amendment considered census-taking 
methodologies, but there can be little basis for believing, in light of the other 
commitments contained in that Amendment and contemporaneously enacted 
legislation, that they would prefer, let alone prescribe a method that would lead 
to the diminution the rights of individuals only recently and belatedly 
recognized as “whole persons” in the eyes of the law. See generally Br. Amici 
Curiae of the Brennan Center for Justice, et al.



24

to arrive at it), appears to have been a last-minute, unexplained 
substitute for “census.” More important, while there was broad 
and divisive debate about the basis for representation in the 
House — with apportionment according to population emerging 
as the dominant principle — there is no record of discussion 
about the manner in which the population would be ascertained, 
a silence reinforced by the textual delegation to Congress of 
authority to “direct” “the manned’ by which the decennial census 
would be conducted.

H. The Census Act May Not be Interpreted in Isolation
from its Constitutional and Statutory Context

This Court’s cases affirm that no census may be 
conducted that is not “consistent with the . . . constitutional goal 
o f equal representation.” Wisconsin, 517 U.S. at 19-20. 
Although the straightforward principles of statutory 
interpretation discussed above suffice fully to establish the 
correctness of the Secretary's understanding, the court below 
also committed a serious error in failing to “keep[] in mind,” id. 
at 20, the purposes of the census. Had the decision done so, it 
would not have treated as irrelevant the acknowledged 
inaccuracies that would result from overruling the planned 
Census (and the constitutionally troubling consequences that 
would ensue) and would have construed the Executive’s 
authority to take measures to prevent and correct discrimination 
and inequality to be no less broad than the discretion not to do 
so upheld in Wisconsin.

A. The Executive Branch has Distinct Power and 
Responsibility to Assure Political Equality

The Secretary’s authority to use accuracy-enhancing 
statistical techniques derives important support from the unique 
and constitutionally sensitive purposes that the census data have 
come to seiwe. In addition to their mandatory role in the 
allocation of seats in the House of Representatives, 2 U.S.C. §



25

2a, the population figures derived from the 2000 census will, for 
all practical purposes, determine States’ drawing of 
congressional districts, Karcher, 462 U.S. at 738 (the census 
count “is the only basis for good faith attempts to achieve 
population equality”); id. at 731 (“adopting any standard other 
than population equality, using the best census data available, 
would subtly erode the Constitution's ideal of equal 
representation”) (emphasis supplied), and will affect the 
apportionment of political power at every level of State and 
local government, as well. See 13 U.S.C. § 141(c). The 
consequences of inaccuracy — and especially differential 
inaccuracy — are thus extraordinarily serious, and the 
Secretary’s authority should not lightly be construed as 
preventing him from acting to prevent such inequitable and 
constitutionally troubling results.

In addition to the real and persistent possibility that a 
State with a disproportionately high undercount will not be 
represented in Congress “according to” its “numbers,” see 
Wisconsin — a condition that is in palpable tension with the plain 
words of the Constitution, the hazards of the undercount at the 
congressional district level are even more ominous and 
pervasive. The magnitude of the distortions inherent in the 
differential undercount, see, e.g., table supra p. 4, far exceed the 
sorts of modest deviations from strict population equality that 
have been held to offend the equal representation principle of 
Article I. See Karcher v. Daggett (rejecting congressional 
redistricting plan with total deviations as small as .70 percent, 
where better plans with smaller population deviations were 
presented and where the variances were not sufficiently justified 
as “necessary” to achieve legitimate state interests); see also 
Wells v. Rockefeller, 394 U.S. 542 (1969) (rejecting plan with 
total deviation of 13.1 percent); Kirkpatrick v. Preisler, 394 
U.S. 526 (1969) (rejecting redistricting plan with total deviation 
5.97 percent); White v. Weiser, 412 U.S. 783, 790 (1973)



26

(rejecting plan with total deviation of 4.13 percent); see 
generally id. (congressional districts must be “as 
mathematically equal as reasonably possible”); Karcher, 462 
U.S. at 732 (“As between two standards — equality and 
something less than equality -  only the former reflects the 
aspirations of Art. I § 2”).

It would be an odd rule that required the Secretary to 
generate data that, in his informed judgment and that of outside 
experts, were not accurate and that (due to known undercounts) 
would lead inexorably and unnecessarily to constitutionally 
intolerable departures from equal representation. Just as 
government officials have the power to take measures to avoid 
becoming “passive participant^]” in unconstitutional conduct, 
see City o f Richmond v. J.A. Croson Co., 488 U.S. 469, 492 
(1989), the Secretary must be presumed to have at least the 
discretion (if not the duty) to avoid decisions that will lead to 
unconstitutional State action. Cf. California State Senate v. 
Mosbacher, 968 F.2d 974, 979 (9th Cir. 1992) (“if the State 
knows the census data are unrepresentative, i t . . . should utilize 
noncensus data . . .  in the redistricting process”).

Fulfilling this role is all the more compelling since the 
individuals most likely to be excluded from an uncorrected 
census count are members of the racial and ethnic minority 
groups that have historically been denied full participation in the 
political process. Indeed, Congress, by enacting the Voting 
Rights Act of 1965, 42 U.S.C. §§ 1971 etseq., committed the 
government to “ridfding] the country of racial discrimination in 
voting,” South Carolina v. Katzenbach, 383 U.S. 301, 365 
(1966), a national commitment that extends to prohibiting all 
practices and procedures that result in members of minority 
groups being denied an equal opportunity to elect candidates of 
their choice, Thornburg v. Gingles, 478 U.S. 30 (1986).



27

Given the acknowledged strong state interest in drawing 
congressional districts that do not offend Section 2, see Bush v. 
Vera, 116 S. Ct. 1941, 1951-1952 (1996); Miller v. Johnson, 
115 S. Ct. 2475, 2488 (1995); Shaw v. Reno, 509 U S. 630, 642 
(1993); see also Vera, 116 S. Ct. at 1969 (O'Connor, I ,  
concurring), this Court should be duly hesitant to interpret the 
Secretary’s authority as not extending to steps necessary to 
provide accurate information so as to avoid statutory violations. 
Voinovich v. Quilter, 507 U.S. at 153-54 (1993) (explaining 
danger that minority group will be "packed" so as to dilute 
voting strength). See generally Bob Jones University v. United 
States.

B. An Inaccurate Census Would Raise Serious 
Constitutional Questions

Although the Secretary’s ability to conduct a correct and 
fair census plainly implicates his constitutional power, it also 
raises serious questions as to his constitutional duty. Although 
this Court held in Wisconsin that Article I, as amended imposes 
no absolute duty to correct an undercount — even a differential 
undercount, the question presented in Wisconsin was 
fundamentally different from the one that would arise were the 
Secretary compelled to conduct a census in 2000 that, in his and 
experts’ judgment, was unjustifiably and differentially 
inaccurate.

In Wisconsin, the Court upheld as a constitutionally 
permissible exercise of the Secretary’s authority his decision not 
to rely on data generated through statistical sampling. Key to 
the Court’s holding was that while Article I’s goal of “equal 
representation” necessarily contemplates an accurate census, it 
does not express a preference for a particular type of accuracy. 
Because the executive decision challenged in Wisconsin had 
invoked concerns about “distributive” i.e., State-level, 
inaccuracy, the Court concluded that there was no basis for



28

adjudging it less “consistent with the constitutional goal of equal 
representation” than one that favored accuracy at the national 
level. See 517 U.S. at 18 (“we can see no ground for preferring 
numerical accuracy to distributive accuracy. The Constitution 
provides no instruction on this point”).

Here, however, there is no similar choice between 
equally “constitutionally permissible course[s].” The ‘“ polestar 
of equal representation’” Wisconsin, 517 U.S. at 13 (quoting 
United States D ep’t o f Commerce v. Montana, 503 U.S. 442, 
463 (1992)), would favor a census objectively more accurate in 
each of the constitutionally relevant respects, and there would 
be serious doubt as to whether a different one could meet even 
the deferential constitutional standard.

Conclusion

The decision below went to unfortunate lengths to detect 
a “limitation” on the Secretary’s authority that (1) defies the 
plain meaning of the Census Act; (2) disregards this Court’s 
decisions regarding judicial deference; and (3) is inconsistent 
with a common-sense understanding of legislative intent. 
Because the Secretary’s decision to conduct a more fair and 
accurate census is wholly consistent with his statutory and 
constitutional responsibilities and is specifically intended to 
further goals of equal representation and nondiscrimination that 
are at the core of our constitutional democracy, the judgment of 
the District Court must be reversed.



29

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
David T. Goldberg 
NAACP Legal Defense & 

Educational Fund, Inc.
Suite 1600 
99 Hudson Street 
New York, NY 10013 
(212) 965-2200

*Todd A. Cox 
NAACP Legal Defense & 

Educational Fund, Inc.
10th floor
1444 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Amicus Curiae

^Counsel of Record