Morales v. Daley

• Decision Date: 07 June 2000
• Docket Number: No. H-00-1010.,H-00-1010.
• Citation: 116 F.Supp.2d 801
• Parties: Edgar MORALES, et al., Plaintiffs, v. William M. DALEY, Secretary of Commerce, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

116 F.Supp.2d 801

Edgar MORALES, et al., Plaintiffs, v. William M. DALEY, Secretary of Commerce, et al., Defendants.

No. H-00-1010.

United States District Court, S.D. Texas, Houston Division.

June 7, 2000.

J. Mark Brewer, Brewer and Pritchard, Houston, TX, for Plaintiffs.

Thomas W. Millet, U.S. Dept of Justice, Civil Div., Washington, DC, for Defendants.

MEMORANDUM & ORDER

HARMON, District Judge.

I. Introduction

Article I, Section 2, Clause 3 of the Constitution of the United States provides in pertinent part,

Representatives ... shall be apportioned among the several States ... 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....

Congress, pursuant to the constitutional authority to direct the manner in which the "actual Enumeration" of the population shall be made, enacted the Census Act, 13 U.S.C. § 1 et. seq., which delegated to the Secretary of Commerce authority to conduct the decennial census. Id. § 4. The Census Bureau, acting under the Secretary of Commerce, conducts the census.

Plaintiffs Edgar Morales, Laique Rehman, Nouhad K. Bassila, George Breckenridge, and William Jeffrey Van Fleet have brought a number of challenges to the constitutionality of Census 2000 and have asked for a permanent injunction of their obligation to answer the census questions asked of them.

After the court granted a limited temporary restraining order, which was agreed to by the defendants William M. Daley, Secretary of the Department of Commerce, and Kenneth Prewitt, Director of the United States Bureau of the Census United States [hereinafter, "United States," "the government," or "the Bureau"], preventing the United States from taking criminal action against the named plaintiffs if they failed to return their answered census forms, the court ordered the parties to cross-brief motions for summary judgment. It was agreed between the parties that there were no material facts at issue. Each side was then given an opportunity to respond to the other's brief.

Pending before the Court are those cross motions for summary judgment. The plaintiffs state the basic question of their lawsuit as "what kind of information may the United States Government demand of its citizens and compel them to provide under threat of criminal penalties should they not do so." They state the United States' position as one of being permitted to ask "virtually anything" that the Director of the Census chooses to ask. In other words, the plaintiffs maintain that there are "virtually no limits to the intrusiveness of census questions propounded by the government." As a corollary, they state that the government has unlimited power to fine or even imprison a citizen for failing to tell the government what it wants to know. Plaintiffs maintain that the only questions the government may lawfully compel answers to in connection with the census are questions that relate to the constitutionally-mandated enumeration or "head count" of the people who inhabit the United States and this only for purposes of apportionment. Any other questions, particularly the ones posed on both the "short form" and the "long form" census questionnaires, the answers to which are compelled under the threat of criminal penalties, are an unconstitutional invasion of the plaintiffs' privacy and are violative of the rights of the plaintiffs under the First, Fourth and Fourteenth Amendments to the United States Constitution.¹

Plaintiffs state in their motion, and these facts have not been disputed, that the plaintiffs are all United States citizens. Plaintiffs Breckenridge and Van Fleet were born in the United States. Plaintiffs Bassila, Morales, and Rehman are naturalized citizens. Bassila was born in Lebanon. Rehman was born in Pakistan. Morales was born in Mexico. Although Morales was born in Mexico, he chooses not to categorize himself as "Hispanic," but classifies himself as American. The plaintiffs received questionnaires from the Census Bureau in the middle of March 2000. Bassila, Morales, Rehman, and Breckenridge received the "short form." Plaintiff Van Fleet received the "long form" questionnaire. The short form consists of eight questions that are asked of "person one." In order to comprehend fully the challenge plaintiffs bring, it is necessary to review in some detail the questions posed by both the short and long forms.²

A. Short Form

The first question asks how many people were living or staying in the house, apartment, or mobile home on April 1, 2000. This is the only question mandated by Article I, Section 2, Clause 3.

Question two asks if the house, apartment, or mobile home is owned, with a mortgage, owned free and clear, rented for cash, or lived in without payment of rent. A question concerning "tenure," that is, whether the housing is owned or rented, has been asked in some form since 1890.³

Question three asks the name of a person who owns, is buying, or rents the home, apartment, or mobile home or any adult living or staying there. This person is then referred to as "person one."

Question four asks person one's telephone number.

Question five asks person one's sex. A question concerning the sex of individuals has been asked in the census since 1790.

Question six asks the age of person one and his date of birth. A question concerning the individual's age has been asked since 1790.

Question seven asks if person one is of Spanish, Hispanic, or Latino heritage. A question concerning Hispanic ethnicity has been asked on the census since 1970.

Question eight asks what is person one's race and directs person one to mark the block which he considers himself to be. These blocks are

1. white,

2. black, African American, or Negro,

3. American Indian or Alaska native, with space to provide the name of the enrolled or principal tribe,

4. Asian Indian,

5. Chinese,

6. Filipino,

7. other Asian, with a space to print the race,

8. Japanese,

9. Korean,

10. Vietnamese,

11. Native Hawaiian,

12. Guamanian or Chamorro,

13. Samoan,

14. Other Pacific Islander, and a space to print in the race.

15. A block which reads "Some other race," and a space in which person one is to print the name of the race.

A question concerning race has been asked on the census form since 1790, although certainly not in the detail called for in the Year 2000 census form.

After the first eight questions have been asked, the questionnaire goes on to ask about each of the other persons living in the house, apartment, or mobile home. These persons are designated as person two, person three, and so on. For each of these persons in addition to person one, the questionnaire in the first question asks that person's name.

Question two asks how the person is related to person one. The choices are

1. husband/wife,

2. natural born son/daughter,

3. adopted son/daughter,

4. stepson/stepdaughter,

5. brother/sister,

6. father/mother,

7. grandchild,

8. parent-in-law,

9. son-in-law/daughter-in-law,

10. "other relative," with a space provided in which the person is to print the exact relationship.

Question two also allows answers for non-related persons, and the choices are

1. roomer, boarder,

2. housemate, roommate,

3. unmarried partner,

4. foster child,

5. other non-relatives.

A question concerning the relationships the persons who live in the home have to one another has been on the census form since 1880.

Question three for the additional persons asks each person's sex.

Question four asks each person's age and date of birth.

Questions five and six for the additional persons repeat the race questions set out above, that is, questions seven and eight, asked of person one.

B. The Long Form

The long form has a format different from the short form. The first question asks how many people are living or staying in the house, apartment, or mobile home on April 1, 2000. The second question asks the names of all the persons who are living in the house. Then the census form addresses each person in turn. Person one answers a series of thirty-two questions beginning with his name (question one), telephone number (question two), sex (question three), age and date of birth (question four), whether the person is Spanish, Hispanic, or Latino (question five), and what is this person's race (question six).

Questions five and six on the long form are identical to questions seven and eight on the short form for person one, and questions five and six for the additional persons.

The long form then asks person one, in question seven, his marital status. A question on marital status has been asked in the census since 1880.

Question eight (a) asks, "At any time since February 1, 2000, has this person attended regular school or college?" Question eight (b) asks what grade or level was this person attending. A question concerning education enrollment has been asked on the census form since 1850.

Question nine asks what the highest degree or level of school was completed by the person answering. A question on education attainment has been asked on the census form since 1940.

Question ten asks, "What is this person's ancestry or ethnic origin?" It leaves a space in which the person can record his ethnic origin or ancestry, and suggests examples of Italian, Jamaican, African American, Cambodian, Cape Verdean, Norwegian, Dominican, French Canadian, Haitian, Korean, Lebanese, Polish, Nigerian Mexican, Taiwanese, Ukranian, etc. A question on ancestry or ethnic origin has been asked on the census form since 1980.

Question eleven (a) asks if person one speaks a language other than English at home, and eleven (b) asks what that language is, giving examples of Korean, Italian, Spanish, and Vietnamese. Question eleven (c) asks how well the person speaks English and gives a choice between very...