Glavin v. Clinton

• Decision Date: 24 September 1998
• Docket Number: Civ. A. No. 98-207-A.
• Citation: 19 F.Supp.2d 543
• Parties: Matthew GLAVIN, et al., Plaintiffs, v. William J. CLINTON, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

Page 543

19 F.Supp.2d 543

Matthew GLAVIN, et al., Plaintiffs, v. William J. CLINTON, et al., Defendants.

Civ. A. No. 98-207-A.

United States District Court, E.D. Virginia, Alexandria Division.

September 24, 1998.

Edward J. Fuhr, Richard B. Harper, Louanna Godwin, March Dolan Coleman,

Hunton & Williams, Richmond, VA, Michael Carvin, David Thompson, Robert J. Cynkar, Theodore M. Cooperstein, Cooper, Carvin & Rosenthal, PLLC, Washington, DC, L. Lynn Hogue, Valle Simms Dutcher, Southeastern Legal Foundation, Atlanta, GA, for plaintiffs Matthew Glavin, Robert Barr, individually and in his official capacity as a Member of the U.S. House of Representatives, Gary A. Hofmeister, Stephen Gons, James F. McLaughlin, David H. Glavin, John Taylor, Deborah Hardman, Craig Martin, Jim Lacy, Judy Cresanta, Helen V. England, Amie S. Carter, Robert Richard Dennik, Michael T. James, William J. Byrn, individually and in his official capacity as Cobb County Commission Chairman, Cobb County, Georgia, Delaware County, Pennsylvania, DuPage County, Ilinois, and Bucks County, Pennsylvania.

Dennis E. Szybala, U.S. Attorney's Office, Alexandria, VA, Dennis G. Linder, Michael Sitcov, Thomas Millet, David Souders, Jennifer Kaplan, D. James Greiner, Attorneys, Civil Division, U.S. Department of Justice, for defendants William J. Clinton, in his capacity as President of the United States, U.S. Department of Commerce, William M. Daley, in his capacity as Secretary of the U.S. Department of Commerce, Bureau of the Census, and James F. Holmes, in his capacity as Acting Director of the Bureau of the Census.

Brian S. Currey, Thomas M. Riordan, Karen Mary Wahle, Alfredo Barrios, Derrick F. Coleman, Andrea J. Worden, Jess B. Frost, David E. Lederman, O'Melveny & Myers LLP, Los Angeles, California, for movants City of Los Angeles, California, City of New York, New York, County of Los Angeles, California, City of Chicago, Illinois, City and County of San Francisco, California, MiamiDade County, Florida, City of Inglewood, California, City of Houston, Texas, City of San Antonio, Texas, City and County of Denver, Colorado, City of Long Beach, California, City of San Jose, California, City of Stamford, Connecticut, City of Oakland, California, City of Cudahy, California, County of Santa Clara, California, County of San Bernardino, California, County of Alameda, California, County of Riverside, California, State of New Mexico, The U.S. Conference of Mayors, League of Women Voters of Los Angeles, City of Detroit, Michigan, City of Bell, California, City of Gardena, California, City of Huntington Park, California, State of Texas, and the following members of Congress individually and in their official capacities as Members of the U.S. House of Representatives —Carolyn Maloney, Christopher Shays, Tom Sawyer, Rod Blagojevich, Bobby Rush, Luis Gutierrez, John Conyers, Jr., Jose Serrano, Cynthia McKinney, Charles Rangel, Donald Payne, Howard Berman, Xavier Beccera, Loretta Sanchez, Julian Dixon, Henry Waxman, Maxine Waters, Esteban Torres, Sheila Jackson Lee, Robert Menendez, Ed Pastor, Silvestre Reyes, Ciro Rodriguez, and Carlos Romero-Barcelo.

J. Gerald Hebert, J. Gerald Hebert, P.C., Alexandria, VA, Paul M. Smith, Jenner & Block, Washington, DC, for movants Richard A. Gephardt, Danny K. Davis, Juanita Millender-McDonald, Lucille Roybal-Allard, Louise M. Slaughter, and Bennie G. Thompson.

Mary Lou Soller, Miller & Chevalier, Chartered, Washington, DC, Joseph Remcho, Remcho, Johansen & Purcell, San Francisco, California, for movants The Legislature of the State of California, The California Senate, John Burton, individually and as President Pro Tempore of the California Senate, and California Assembly and Antonio Villaraigosa, individually and as Speaker of the California Assembly.

Moses Silverman, Gaines Gwathmey III, Jeannie S. Kang, Victoria W. Ni, Diane Knox, and Linda Y. Yueh, Paul, Weiss, Rifkind, Wharton & Garrison, New York, NY, and Michael Veve, Lasa, Monroig & Veve, Washington, DC, for movants National Korean American Service & Education Consortium, Inc.; Organization of Chinese Americans, Inc.; Organization of Chinese Americans, Los Angeles, California Chapter; Search to Involve Pilipino Americans, Inc.; United Cambodian Community, Inc.; League of United Latin American Citizens; California League of United Latin American Citizens; National Association of Latino Elected and Appointed Officials, Inc.; Mothers of East Los Angeles; Hee-Sook Kim; Adeline M.L. Yoong, Michael Balaoing; Sovann Tith; Johnny Rodriguez; Chayo Zaldivar; Gilberto Flores; and Alvin Parra.

Before WIDENER, Circuit Judge, HILTON, Chief District Judge, and JACKSON, District Judge.

ORDER

HILTON, Chief Judge.

This matter comes before the Court on the defendants' motion to dismiss and the plaintiffs' motion for summary judgment. For the reasons stated in the accompanying Memorandum Opinion, it is hereby

ORDERED that the plaintiffs' motion for summary judgment is GRANTED, and the defendants' motion to dismiss is DENIED, and it is hereby ORDERED that the defendants are permanently enjoined from using any form of statistical sampling, including their program for non-response follow-up and Integrated Coverage Measurement, to determine the population for purposes of congressional apportionment.

MEMORANDUM OPINION

This case comes before the Court on the defendants' motion to dismiss and the plaintiffs' motion for summary judgment. Plaintiffs, Matthew Glavin, Robert Barr, Gary A. Hofmeister, Stephen Gons, James F. McLaughlin, David H. Glavin, John Taylor, Deborah Hardman, Craig Martin, Jim Lacy, Judy Cresanta, Helen V. England, Amie S. Carter, Robert Richard Dennik, Michael T. James, William J. Byrn, and Cobb County, Georgia, seek summary judgment against Defendants, William J. Clinton, The United States Department of Commerce; William M. Daley; Bureau of the Census and James F. Holmes in this action challenging defendants' plan for the 2000 census.

Plaintiffs claim that using statistical sampling to supplement the head count enumeration used to apportion representatives among the states violates the Census Act of 1976, 13 U.S.C. §§ 21, 195, and Article I, Section 2, Clause 3 of the Constitution. Plaintiffs seek a declaration that statistical sampling is unlawful and/or unconstitutional and an injunction preventing defendants from using statistical sampling in the 2000 census. The defendants seek dismissal of Plaintiffs' complaint on the grounds this case is not ripe for adjudication and that the plaintiffs lack personal standing to be parties in this case.

Now before the Court are the defendants' and intervenor-defendants' motions to dismiss the plaintiffs' complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, and Plaintiffs' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For reasons stated below, the motions to dismiss will be denied and plaintiffs' motion for summary judgment will be granted.

I. Background

Since 1790, the United States government has followed the constitutional command of Article I, Section 2, Clause 3 by carrying out a decennial census to allocate seats in the House of Representatives. In 1990, the Census Bureau instituted new outreach and promotion efforts to count the entire population, spending over $2.6 billion. The 1990 estimated net undercount rate was 1.6%. Certain minorities, notably African-Americans and Hispanics, had higher undercount rates than the population as a whole. Children and those living in rural areas also were differentially undercounted.

In response to the persistent undercount, in November 1990, the Secretary of Commerce established the "Task Force for Designing the Year 2000 Census and Census Related Activities for 2000-2009." Also, Congress passed the Decennial Census Improvement Act of 1991 directing the National Academy of Sciences to study the means by which the Government could achieve the most accurate population count possible, specifically considering the appropriateness of using sampling methods. The Academy found that statistical sampling should be used both for non-response follow-up and to increase accuracy. Relying on the results of the studies, the Census Bureau formulated its own plan for Census 2000.

The Secretary of Commerce's census plan will include sampling in at least three different programs of Census 2000. First, the Bureau will use sampling in the Postal Vacancy Check program, to verify housing units identified as vacant by the United States Postal Service. Second, the Census Bureau will use statistical sampling techniques to complete its traditional enumeration, an operation referred to as "Non-response Follow-up" or "NRFU." Third, the Bureau will use sampling techniques to improve the accuracy of Census 2000 with a post-census survey, an operation the Bureau calls "Integrated Coverage Measurement" or "ICM." The Bureau's plan to use sampling in the Postal Vacancy Check is not in dispute in this lawsuit.

Over 60% of households mailed back their questionnaires in 1990, and the Bureau expects a similar mail response rate in 2000. In 1990, the Census Bureau sent enumerators to all non-responding households before relying on proxy data (information obtained from neighbors) or imputation data (computer-inferred data which are based on the assumption that the household has characteristics similar to other residences in the area). To account for those housing units that do not mail back forms in 2000, the Bureau's plan is to select at random the number of households that need to be counted in order to count 90 percent of the addresses in a census tract to whom questionnaires were mailed.

After the 90 percent goal has been reached, the Department will then add to its actual population count an estimate of the number of people in the households that were not selected for non-response follow-up. Thus, ten percent of the non-response follow-up units...