U.S. House of Represent. v. U.S. Dept. of Commerce

Decision Date24 August 1998
Docket NumberNo. Civ.A. 98-0456.,Civ.A. 98-0456.
Citation11 F.Supp.2d 76
PartiesUNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants, and Richard A. Gephardt, et al.; Legislature of the State of California, et al.; City of Los Angeles, et al.; National Korean American Service & Education Consortium, Inc., et al., Intervenor-Defendants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Maureen Ellen Mahoney, Nandan M. Joshi, Richard Bress, Latham & Watkins, Washington, DC, for Plaintiff.

Thomas William Millet, IV, U.S. Department Of Justice, Civil Division, Washington, DC, for Defendants Dept. of Commerce, William M. Daley, Bureau of Census.

Karen Mary Wahle, O'Melveny & Myers, L.L.P., Washington, DC, for Intervenor-Defendants City of San Bernadino, Cal., Carolyn Member of U.S. House of Representatives, Loretta Sanchez, Movants City of Los Angeles, City of New York, City of Chicago, City and County of San Francisco, Cal., Miami-Dade County, City of Inglewood, City of Houston, Tex., City of San Antonio, Tex., City of San Jose, Cal., City of Stamford, Conn., City of Cudahy, City of Santa Clara County of Alameda, County of Riverside, State of New Mexico, U.S. Conference of Mayors, League of Women Voters of Los Angeles, Christopher Shays, Tom Sawyer, Rod Blagojevich, Bobby Rush, Luis Guitierrez, John Conyers, Jr., Jose Serrano, Cynthia McKinney, Charles Rangel, Howard Berman, Xavier Beccera, Julian Dixon, Henry Waxman, Maxine Waters, Esteban Torres, Sheila Jackson Lee, City of Detroit, City of Bell, City of Gardena, City of Huntington Park, Robert Mendenez, Ed Pastor, Silvestre Reyes, Ciro Rodriguez, Carlos Romero-Barcelo.

Jessica F. Heinz, James K. Hahn, Moses Silverman, Victoria W. Ni, Diane Knox, Kathleen Purcell, Paul, Weiss, Rifkind, Wharton & Garrison,New York, NY, Michael Edward Veve, Lasa, Monroig & Veve, Washington, DC, for Intervenor-Defendant Chayo a resident of Tex, Movants Organization of Chinese Americans, Los Angeles, California Chapter, Search to Involve Philipino Americans, Inc., United Cambodian Community, Inc., League of United Latin American Citizens, California League of United Latin American Citizens, Nat. Ass'n of Latino Elected and Appointed Officials, Inc., Members of East Los Angeles, Hee-Sook Kim, Michael Balaoing, Alvin Parra.

Jerome Charles Schaefer, William Joseph Butler, Jr., O'brien, Birney & Butler, Washington, DC, for Amicus American Statistical Ass'n.

Richard A. Samp, Washington Legal Foundation, Washington, DC, for amicus Washington Legal Foundation, Allied Educ. Foundation, American Conservative Union, Amer for Tax Reform, Ass'n of American Physicians and Surgeons, Inc., Citizens for Judicial Reform, Citizens United Foundation, Coalition of Virgina Taxpayers, English First, Freedom in Medicine Foundation, Independence Institute, Independent Women's Forum, Islamic Institute, Law Enforcement Alliance, Local Government Council, New Jersey Citizens for Tax Reform, Patrick Pizzella, Policy Analysis Center, Dan Racheter, 60 Plus Ass'n, South Carolina Policy, Council Educ. Foundation, Toward Tradition, U.S. Border Patrol, Women For Tax Reform.

Peter C. Anderson, Wisconsin Department Of Justice, Madison, WI, for State of Wis.

Donald B. Verrilli, Jr., Paul March Smith, Jenner & Block, Washington, DC, J. Gerald Hebert, Alexandria, VA, for Movants Danny K. Davis, Lucille Roybal-Allard, Juanita Millender-McDonald, Louise M. Slaughter, Bennie G. Thompson.

Karen Mary Wahle, O'melveny & Myers, L.L.P., Washington, DC,

Michael Edward Veve, Lasa, Monroig & Veve, Washington, DC, for Movants Sovann Tith, Johnny M. Rodriguez, Gilberto Flores.

Donald R. Dinan, O'connor & Hannan, L.L.P., Washington, DC, for Movant DC Democratic State Committee.

Edward Still, Lawyers' Committee For Civil Rights, Washington, DC, for Movants Jerome Gray, Sherman Norfleet, Gwendolyn Patton, Isaiah Sumbry, Diane Wilkerson.

Mary Lou Soller, Miller & Chevalier, Chartered, Washington, DC, for Movants Legislature of State of Cal., Cal. Senate, John Charles Burton, Cal. Assembly, Antonio Villaraigosa.

MEMORANDUM OPINION

LAMBERTH, District Judge.

Plaintiff, the United States House of Representatives, seeks summary judgment against the Department of Commerce and the Bureau of the Census ("defendants") in this action challenging defendants' plan for the 2000 census. Plaintiff claims that using statistical sampling to supplement the headcount enumeration used to apportion representatives among the states violates the Census Act, 13 U.S.C. § 1 et seq., and Article I, section 2, clause 3 of the Constitution. The House seeks a declaration that statistical sampling is unlawful and/or unconstitutional and an injunction preventing defendants from using statistical sampling in the 2000 census.

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

I. BACKGROUND

The Constitution requires Congress to conduct an "actual Enumeration" of the population every tan years "in such Manner as they shall by Law direct." U.S. Const. art. I, § 2, cl. 3; see Wisconsin v. City of New York, 517 U.S. 1, 5, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996). Congress has delegated broad authority over the conduct of the census to the Secretary of Commerce through the Census Act. See 13 U.S.C. § 1 et seq.; see also Wisconsin, 517 U.S. at 19, 116 S.Ct. 1091. The Census Act governs the Census Bureau's (the "Bureau") gathering of economic, social and demographic data about the United States, including the decennial apportionment census mandated by the Constitution.

Despite the constitutional mandate to obtain an "actual enumeration" of the population, "no census is recognized as having been wholly successful in achieving that goal." Wisconsin, 517 U.S. at 6, 116 S.Ct. 1091 (citing Karcher v. Daggett, 462 U.S. 725, 732, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983); Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973)). The 1990 census was no exception. According to the Bureau, "[t]hough better designed and executed than any previous census, the Census in 1990 took a step backward on the fundamental issue of accuracy. For the first time since the Census Bureau began conducting post-census evaluations in 1940, the decennial census was less accurate than its predecessor.... the undercount rate of 1.8 percent in 1990 was 50 percent greater than the rate had been in 1980." United States Department of Commerce, Bureau of the Census, Report to the Congress — The Plan for Census 2000, at 2 (revised August 1997) ("Census 2000 Report"). Specifically, the Bureau reports that children, renters (particularly in rural areas), and racial and ethnic minorities were significantly undercounted. Among those the 1990 census missed were 4.4% of African-Americans, 5.0% of Hispanics, and 12.2% of American Indians living on reservations, but only 0.7% of Non-Hispanic Whites. See Census 2000 Report at 3-4.2 This undercounting of certain groups relative to others, known as the "differential undercount," raises the possibility of congressional malapportionment, as jurisdictions with large numbers of undercounted persons may have a greater share of the total population than the census figures suggest.

Concerned about problems with the 1990 census, Congress passed the Decennial Census Improvement Act of 1991, P.L. 102-135, 105 Stat. 635 (1991), which directed the National Academy of Sciences to study "the means by which the Government could achieve the most accurate population count possible," including consideration of "the appropriateness of using sampling methods in combination with basic data-collection techniques." Id. (quoted in Census 2000 Report at 6). The National Academy established three panels to develop a means to achieve greater accuracy for the 2000 census. All three panels concluded that traditional census methods needed to be modified in response to societal changes, and that statistical sampling techniques would both increase the census' accuracy and lower its cost. See Census 2000 Report at 7-8 (quoting the conclusion of the Academy Panel on Methods that "[d]ifferential undercount cannot be reduced to acceptable levels at acceptable costs without the use of integrated coverage measurement and the statistical methods associated with it").

Based upon the results of these congressionally-authorized National Academy studies, combined with ninety years of censustaking experience, meetings with the public in thirty cities, congressional input, and advice from no fewer than six advisory committees, see Census 2000 Report at 9-10, the Bureau developed its master plan for the 2000 enumeration. At issue is the Bureau's plan to use statistical sampling to supplement data obtained through traditional census methods.3

Statistical sampling is best understood as using information derived from a portion of a population to infer information on the population as a whole. The Bureau intends to use sampling in three different phases of the 2000 census. First, the Bureau will use sampling in the Postal Vacancy Check program to verify the United States Postal Service's determination that certain housing units are vacant and to correct for anticipated errors in this designation. Second, the Bureau will use sampling techniques in the Nonresponse Follow-Up ("NRFU") phase of the census. Finally, the Bureau intends to conduct a post-census survey, an operation referred to as Integrated Coverage Measurement ("ICM"). The Postal Vacancy Check sampling plan is not at issue in this litigation. The court will describe the latter two processes briefly.

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