Young v. Klutznick, Civ. A. No. 80-71330.

• Decision Date: 25 September 1980
• Docket Number: Civ. A. No. 80-71330.
• Citation: 497 F. Supp. 1318
• Parties: Coleman A. YOUNG, Individually and as Mayor, City of Detroit, and City of Detroit, a Municipal Corporation, Plaintiffs, v. Philip M. KLUTZNICK, Secretary of Commerce of the United States, and Vincent P. Barabba, Director of the United States Bureau of the Census, Defendants.
• Court: U.S. District Court — Western District of Michigan

497 F. Supp. 1318

Coleman A. YOUNG, Individually and as Mayor, City of Detroit, and City of Detroit, a Municipal Corporation, Plaintiffs, v. Philip M. KLUTZNICK, Secretary of Commerce of the United States, and Vincent P. Barabba, Director of the United States Bureau of the Census, Defendants.

Civ. A. No. 80-71330.

United States District Court, E. D. Michigan, S. D.

September 25, 1980.

COPYRIGHT MATERIAL OMITTED

Goodman, Eden, Millender & Bedrosian by Ernest Goodman, James A. Tuck, Detroit, Mich., Special Counsel, for the City of Detroit.

George W. Crockett, Jr., Joseph N. Baltimore, Detroit, Mich., Robert A. Sedler, Wayne State University School of Law, Detroit, Mich., for plaintiffs.

Alice Daniel, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Mark C. Rutzick, William Z. Elliott, Sheila Lieber, Dept. of Justice, Washington, D. C., for defendants.

John J. Gunther, Executive Director, Stephen C. Chapple, Gen. Counsel, U. S. Conference of Mayors, Washington, D. C., Jim Leach, Member of Congress, First District of Iowa, Washington, D. C., for amicus curiae.

OPINION

GILMORE, District Judge.

Can a headcount of the persons in the United States, made on the 1st of April, 1980, and unadjusted for an acknowledged undercount, be used for the reapportionment of the United States House of Representatives, and the distribution of Federal funds among states and sub-state units of government? That is the question in this case. The answer is clearly no.

Since 1790, with the exception of 1970 when nearly five million people were imputed and added to the headcount, the population of the United States, and its various governmental units has been determined by an unadjusted headcount, made by various means. In the past several censuses, this has resulted in an undercount of the population. This undercount has been the greatest among minorities—particularly blacks and Hispanics—and particularly blacks and Hispanics living in large urban areas. In 1960 and 1970, four times as many blacks were not counted as whites, and in 1970 this occurred even after the imputation of nearly five million people. In 1980, it is predicted that the same differential undercount will occur. Additionally, it is estimated that 8 percent of the Hispanics will not be counted. This lawsuit seeks to require an adjustment of that undercount.

The plaintiffs are Coleman Young, individually and as Mayor of the City of Detroit, and the City of Detroit. The defendants are Philip M. Klutznick, Secretary of Commerce, and Vincent P. Barabba, Director of the Census. The United States Conference of Mayors has filed a brief amicus in support of the plaintiffs, and Congressman Jim Leach of Iowa has filed one in support of defendants.

It is conceded that the way in which the Bureau of the Census goes about determining the number of people who reside in the United States on a particular day in each decade results in missing a great number of people. A disproportionate number of these individuals are blacks and minorities. In 1970, by the Census Bureau's own estimate, nearly 10.2 million persons were not personally contacted during the count. This represented 5 percent of the population. The Bureau estimated that 1.9 percent of the whites and 7.7 percent of the Blacks were not counted. In 1970, of this 10.2 million, 4.9 million who were not actually counted were included in the official count by "imputation" and allocated among the states for purposes of apportioning congressional seats. Still, approximately 5.3 million people were not included in the census figures.

Plaintiffs claim that, unless there is an adjustment for the undercount, individuals who live in urban areas with high black populations and those who live in areas with high Hispanic populations will be deprived of their right of equal representation in the House of Representatives of the United States, and in the State Legislature of Michigan, and will lose substantial sums of money, in that more than 100 federally funded programs are tied in one way or another to census figures.

The constitutional theory of plaintiffs' claim is that Article 1, Section 2, Clause 3 of the United States Constitution, providing for the taking of a decennial census, requires that the official decennial population count reflect as accurately as is reasonably possible the true population of the states, cities, and other governmental sub-units within each state. Plaintiffs claim, and it is not seriously disputed, that an official population count, using only raw, unadjusted census data, does not accurately reflect the actual population of the states, and governmental units within the states. Furthermore they claim—and this is not substantially disputed—that about four times as many blacks as whites are undercounted in urban areas, and an equal number of Hispanics are undercounted in the areas where they are located throughout the United States.

Defendants, on the other hand, contend that since 1790 the decennial census of the United States has consisted of a straightforward headcount of all persons residing within the United States. They claim that the goal of the census is to be as accurate as reasonably possible, but that there is always inherently less than absolute accuracy since a relatively small number of persons are missed in the census process. They say that since the first census was taken in 1790, these persons have not been counted as part of the population base used for apportionment of members of the House of Representatives among and within the states, and that Article 1, Section 2, Clause 3 of the Constitution requires this result, since, by its terms, apportionment can be based only on persons who are actually enumerated in the census.

The case came to trial in late August, and testimony was taken for several days. Briefs were filed, and final argument was held on September 10, 1980.

At the outset, it must be noted that the decennial census is a process, or in the words of the Supreme Court, an event. Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). The taking of a decennial census is authorized and directed by the express language of the Constitution in Article 1, Section 2, Clause 3, which, in pertinent part, provides:

"Representatives and direct Taxes shall be apportioned among the several states which may be included within this Union, according to their respective Numbers ... The actual Enumeration shall be made within three Years after the first 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 ..."¹

The very concept of a decennial census arose out of the attempt of the framers of the Constitution to preserve the equality of vote for the House of Representatives. The adoption of the proposal for the taking of the census occurred on the heels of the "Great Compromise" that gave birth to the United States Constitution. As the Supreme Court pointed out in Wesberry v. Sanders, 376 U.S. 1, 13, 14, 84 S.Ct. 526, 533, 11 L.Ed.2d 481 (1964):

"The debates at the Convention made at least one fact abundantly clear: that when the delegates agreed that the House should represent `people' they intended that in allocating Congressmen the number assigned to each State should be determined solely by the number of the State's inhabitants. The Constitution embodied Edmund Randolph's proposal for a periodic census to ensure `fair representation of the people, an idea endorsed by Mason as assuring that `numbers of inhabitants' should always be the measure of representation in the House of Representatives."

A long line of cases rooted in the Constitution² and its history has established that the right to vote is one crucial to the preservation of our democratic society, and that such right cannot be abrogated. In Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1963) the Supreme Court stated:

"The right to vote freely for the candidate of one's choice is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."

Thus the necessity for an accurate population count among and within states is inexorably tied to fair apportionment of congressional seats. That is what this case is all about. The issue is as simple as that.

I

A threshold issue is that of standing. In ruling upon defendant's motion to dismiss filed earlier in this case, Judge Guy of this Court determined that the plaintiff had standing. Young v. Klutznick (No. 80-71330, May 29, 1980). In that opinion, he stated, inter alia (pages 14 & 15):

"While the original concern of the `capital framers' was with representation of one state vis-a-vis another, the reapportionment cases clearly extend the requirement to equal representation within the state. As the Court noted in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1963): `It would defeat the principles solemnly embodied in the Great Compromise-equal representation in the House for equal numbers of people—for us to hold that, within the states, legislatures may draw the lines of congressional districts in such a way as to give some voters a greater voice in choosing a Congressman than others. The House of Representatives, the Convention agreed, was to represent the people as individuals and on a basis of complete equality for each voter.'

"Logically, these principles can be extended to that branch of the Federal Government which is responsible for collecting the figures upon which districting is based."

Defendants, in their post-trial brief, contend that Judge Guy suffered from the misconception that states were not free to adjust the census data, and that the states were, in fact, obligated to use...