Tucker v. U.S. Dept. of Commerce

• Decision Date: 29 April 1992
• Docket Number: No. 91-2051,91-2051
• Citation: 958 F.2d 1411
• Parties: Robert L. TUCKER, et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF COMMERCE; Robert A. Mosbacher, as Secretary of Commerce; Michael R. Darby, as Under Secretary for Economic Affairs; Bureau of the Census; Barbara E. Bryant, as Director of the Bureau; George H.W. Bush, as President of the United States; and Donald K. Anderson, as Clerk of the United States House of Representatives, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1411

958 F.2d 1411

60 USLW 2600

Robert L. TUCKER, et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF COMMERCE; Robert A. Mosbacher as Secretary of Commerce; Michael R. Darby, as Under Secretary for Economic Affairs; Bureau of the Census Barbara E. Bryant, as Director of the Bureau; George H.W Bush, as President of the United States; and Donald K Anderson, as Clerk of the United States House of Representatives, Defendants-Appellees.

No. 91-2051.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1992.

Decided March 16, 1992.

Rehearing and Rehearing En Banc

Denied April 29, 1992.

William J. Harte (argued), Joseph E. Tighe, Chicago, Ill., for plaintiffs-appellants.

Fred Foreman, U.S. Atty., Crim. Div., Nancy K. Needles, Asst. U.S. Atty., Civ. Div., Appellate Section, Chicago, Ill., Michael J. Singer, Mark Stern (argued), Dept. of Justice, Civ. Div., Appellate Section, Jason R. Baron, Dept. of Justice, Antitrust Div., Appellate Section, Stephen E. Hart, Anthony J. Coppolino, Dept. of Justice, Federal Programs Branch-Civ. Div., Washington, D.C., for defendants-appellees.

Kelly R. Welsh, Asst. Corp. Counsel, Office of the Corp. Counsel, Appeals Div., Chicago, Ill., for City of Chicago amicus curiae.

Before CUMMINGS, POSNER, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

This is a suit by residents of Illinois against the federal executive-branch officials responsible for the decennial census, and also against the Clerk of the House of Representatives. The complaint charges that the 1990 census, by undercounting blacks, Hispanics, illegal aliens, and poor people generally, has violated countless constitutional and statutory provisions, including the constitutional clause governing the apportionment of congressional representation and federal taxes (Art. I, § 2, cl. 3), the statutes that implement that clause (2 U.S.C. § 2a(a) and 13 U.S.C. § 141), the Fourteenth Amendment, the Voting Rights Act (42 U.S.C. § 1973 et seq.), and the Administrative Procedure Act (5 U.S.C. §§ 551 et seq.). The plaintiffs claim that these violations have caused them to lose representation in the House of Representatives and a fair share of federal and state funds allocated on the basis of the census figures. They seek an injunction to compel the responsible officials to make an appropriate statistical adjustment for the undercount. The district court, 135 F.R.D. 175 (N.D.Ill.1991), dismissed the suit on the pleadings as barred by the "political questions" doctrine. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973).

The decennial census is a headcount rather than an estimation based on sampling. Nowadays it is conducted mainly by mail, but many people fail to return the form and the census takers must visit them personally. Carey v. Klutznick, 508 F.Supp. 420, 422-29 (S.D.N.Y.), aff'd, 637 F.2d 834 (2d Cir.1980); Dan Halacy, Census: 190 Years of Counting America 157-77 (1980). The census takers try to account for everybody in America but of course they don't succeed, and they have particular difficulty finding people who lack a fixed abode or mailing address or who want to avoid contact with any representatives of government; in addition, they are doubtless less than completely thorough in canvassing residences in dangerous neighborhoods. If the resulting undercount were randomly distributed across communities, there would be no effect on representation and little effect on the allocation of government largesse. (Little rather than zero because eligibility for some programs depends on a community's population, and even an unbiased undercount might drive the population figure below the threshold. City of Camden v. Plotkin, 466 F.Supp. 44, 48 (D.N.J.1978); Arthur J. Maurice & Richard P. Nathan, "The Census Undercount: Effects on Federal Aid to Cities," 17 Urban Affairs Q. 251, 265 (1982).) There is reason to believe, however, that the undercount is not randomly distributed, but instead is concentrated in the poor, among whom blacks and Hispanics are disproportionately represented, and among illegal aliens, who are disproportionately Hispanic. Carey v. Klutznick, supra, 508 F.Supp. at 426; Young v. Klutznick, 497 F.Supp. 1318 1327-28 (E.D.Mich.1980), rev'd, 652 F.2d 617 (6th Cir.1981); Kirsten K. West & David J. Fein, "Census Undercount: An Historical and Contemporary Sociological Issue," 60 Sociological Inquiry 127, 129 (1990); Note, "Demography and Distrust: Constitutional Issues of the Federal Census," 94 Harv.L.Rev. 841, 849-52 (1981); Staff of the Subcomm. on Census and Population of the H. Comm. on Post Office and Civil Service, 96th Cong., 2d Sess., Report on the 1980 Decennial Census 56 (1980); U.S. Comm'n on Civil Rights, Counting the Forgotten: The 1970 Census Count of Persons of Spanish-Speaking Background in the United States (G.P.O.1974).

The Census Bureau acknowledges all this--specifically, acknowledges an undercount in the 1990 census ranging from 1.7 percent of whites to 5.2 percent of Hispanics, Adjustment of the 1990 Census for Overcounts and Undercounts of Population and Housing: Notice of Final Decision, 56 Fed.Reg. 33582 (July 22, 1991), and in response to parallel litigation in the Second Circuit agreed to conduct a comprehensive review of the undercount problem. City of New York v. United States Dept. of Commerce, 739 F.Supp. 761, 763-64, 769 n. 9 (E.D.N.Y.1990). It conducted the review with the aid of a panel of outside statistical experts, but concluded (in 60 pages of fine print in the Federal Register ) that the census figures should not be adjusted to correct for the undercount. Adjustment of the 1990 Census for Overcounts and Undercounts of Population and Housing: Notice of Final Decision, supra. The Bureau explained that while adjustment by the best method available would increase the census totals, it would not significantly alter the apportionment of seats in the House of Representatives among the states, in part because there is overcounting as well as undercounting. After the dust settled, Illinois's representation would be unchanged, although California and Arizona would pick up a few seats at the expense of Pennsylvania and Wisconsin. Federal grant allocations might not be much affected either. Maurice & Nathan, supra. Moreover, any attempt to make a statistical adjustment to the mechanical headcount would, by injecting judgmental factors--and ones of considerable technical complexity to boot, Allen L. Schirm & Samuel H. Preston, "Census Undercount Adjustment and the Quality of Geographic Population Distributions," 82 J.Am.Stat. Ass'n 965 (1987)--open the census process to charges of political manipulation. And while a statistical adjustment for the undercount would undoubtedly improve the accuracy of the nationwide census total, there is no consensus among statisticians and demographers that it would make the state and district census totals--the level at which the adjustment would actually affect representation and funding--more accurate. This lack of consensus feeds the concern with a possible loss of public credibility as a consequence of departing from the (perhaps delusive) simplicity of counting heads.

The plaintiffs disagree with all this and, for all we know, they may be right, but we agree with the district judge that the federal courts have not been authorized to arbitrate the dispute. It should go without saying that federal judges cannot provide a solvent for every social problem or a remedy for every questionable act of government. We cannot provide a remedy for a census undercount, at least where the undercount is not the result of an effort to reduce some group's representation or funding but is merely an accident of the census-taking process.

To see this we must be clear about what the plaintiffs do and do not claim. They argue that the undercount harms groups that the equal protection clause of the Fourteenth Amendment protects against discrimination by the states, such as blacks and Hispanics, and they point out correctly that the due process clause of the Fifth Amendment, interpreted in light of the subsequently enacted equal protection clause of the Fourteenth Amendment, forbids such discrimination by the federal government. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). But the only discrimination forbidden by these provisions is intentional discrimination. Disparate impact, which means the unintended consequence of measures adopted for reasons unrelated to any intention to discriminate, is not, under the Supreme Court's current interpretation of the Constitution, an acceptable basis for a finding of unconstitutional discrimination, whatever the significance of such a showing may be under the civil rights statutes. Washington v. Davis, 426 U.S. 229, 239-45, 96 S.Ct. 2040, 2047-50, 48 L.Ed.2d 597 (1976); City of Mobile v. Bolden, 446 U.S. 55, 66-68, 100 S.Ct. 1490, 1499-500, 64 L.Ed.2d 47 (1980). The plaintiffs do not argue that by refusing to adjust the census count the defendants are guilty of intentional discrimination--are prejudiced against blacks, or Hispanics, or aliens (or for that matter the poor, although they are not a protected class under the Constitution as it is at present interpreted, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)), or want to deprive members of these groups of equal representation or equal public funding, or even that the defendants want to undercount these people. The plaintiffs accept the bona fides of the Census Bureau and the inevitability of an undercount and merely disagree with the Bureau's judgment that making a statistical adjustment to the raw headcount would create problems disproportionate to the benefits.

The plaintiffs cannot be serious in arguing that the refusal to adjust the headcount violates the Voting Rights Act. That...