CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1995
Syllabus
WISCONSIN v. CITY OF NEW YORK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 94-1614. Argued January 10, 1996-Decided March 20,1996*
The Constitution's Census Clause vests Congress with the
responsibility to conduct an "actual Enumeration" of the American
public every 10 years, with the primary purpose of providing a
basis for apportioning congressional representation among the
States. That responsibility has been delegated to the Secretary of
Commerce, who determined that an "actual Enumeration" would best be
achieved in the 1990 census by not using a postenumeration survey
(PES) statistical adjustment designed to correct an undercount in
the initial enumeration. In this action brought by several of the
respondents and others, the District Court concluded that the
Secretary's decision not to statistically adjust the census
violated neither the Constitution nor federal law. In reversing and
remanding, the Court of Appeals looked to a line of precedent
involving judicial review of intrastate districting decisions, see
Wesberry v.
Sanders, 376 U. S. 1, and its
progeny, and held,
inter alia, that a heightened standard of
review was required here because the Secretary's decision impacted
the fundamental right to have one's vote counted and had a
disproportionate impact upon certain identifiable minority racial
groups.
*Together with No. 94-1631,
Oklahoma v.
City of New
York et al., and No. 94-1985,
Department of Commerce et
al. v.
City of New York et al., also on certiorari to
the same court.
2
Syllabus
Held: Because it was reasonable to conclude that an
"actual Enumeration" could best be achieved in the 1990 census
without the PES-based statistical adjustment, the Secretary's
decision not to use that adjustment was well within the
constitutional bounds of discretion over the conduct of the census
that is provided to the Federal Government. Pp. 13-24.
(a) The Secretary's decision was not subject to heightened
scrutiny.
In two recent decisions,
Department of Commerce v.
Montana, 503
U. S. 442, and
Franklin v.
Massachusetts,
505 U. S. 788,
this Court rejected the application of
Wesberry's "one
person-one vote" standard to Congress, concluding that the
Constitution vests Congress with wide discretion over apportionment
decisions and the conduct of the census, and that the appropriate
standard of review examines a congressional decision to determine
whether it is "consistent with the constitutional language and the
constitutional goal of equal representation," see
Franklin,
supra, at 804. Rather than the strict scrutiny standard applied
in
Wesberry and adopted by the Court of Appeals, the
standard established in
Montana and
Franklin applies
to the Secretary's decision here. The Constitution's text vests
Congress with virtually unlimited discretion in conducting the
"actual Enumeration," see Art. I, § 2, cl. 3 (Congress may conduct
the census "in such Manner as they shall by Law direct"), and there
is no basis for thinking that such discretion is more limited than
that text provides. Through the Census Act, 13 U. S. C. § 141(a),
Congress has delegated its broad authority over the census to the
Secretary. Hence, so long as the Secretary's conduct of the census
is "consistent with the constitutional language and the
constitutional goal of equal representation," it is within the
Constitution's limits. Pp. 13-20.
(b) The Secretary's decision conformed to applicable
constitutional and statutory provisions. In light of the
Constitution's broad grant of authority to Congress, that decision
need bear only a reasonable relationship to the accomplishment of
an actual enumeration of the population, keeping in mind the
census' constitutional purpose of apportioning congressional
representation. The Secretary based the decision upon three
determinations, each of which is well within the bounds of his
constitutional discretion. First, he held that in light of the
constitutional purpose, the census' distributive accuracy-i.
e., getting most nearly correct the proportions of people in
different areas-was more important than its numerical accuracy. A
preference for distributive accuracy (even at the expense of some
numerical accuracy) is not inconsistent with the constitutional
need to determine the apportionment of the Representatives among
the States. Second, the Secretary's determination that the
unadjusted census data should be considered the most distributively
accurate absent a showing to the contrary was based on
3
his well-founded understanding of historical census practice and
experience, an important consideration in this context. See,
e. g., Montana, supra, at 465.
Respondents misplace their reliance on statistical adjustments that
were used in the 1970 and 1980 censuses, since those adjustments
were of an entirely different type than the one at issue and took
place on a dramatically smaller scale, and since a PES-based
adjustment would have been the first time in history that the
States' apportionment was based upon counts in other States. Third,
respondents' contention that this Court should review
de
novo the Secretary's conclusions on this point fundamentally
misapprehends the basis for deference to his determination, which
arises not from the highly technical nature of his decision, but
from the wide discretion bestowed by the Constitution upon
Congress, and by Congress upon him. The Secretary's conclusion that
the PES-based adjustment would not improve distributive accuracy,
which was based on his review of extensive research and the
recommendations of some of his advisers, was a reasonable choice in
an area where technical experts disagree. pp. 20-24.
34 F.3d
1114, reversed.
REHNQUIST, C. J., delivered the opinion for a unanimous
Court.
Solicitor General Days argued the cause for the federal
petitioners. With him on the briefs were
Assistant Attorney
General Hunger, Deputy Solicitor General Kneedler, Malcolm L.
Stewart, and
Mark B. Stern. James E. Doyle, Attorney
General of Wisconsin, argued the cause for petitioners in No.
94-1614 and No. 94-1631. With him on the brief for petitioner in
No. 94-1614 was
Peter C.
Anderson, Assistant Attorney
General.
Don G.
Holladay and
Shelia D. Tims
filed briefs for petitioner in No. 94-1631.
Robert S. Rifkind argued the cause for respondents in all cases.
With him on the brief were Paul A. Crotty, Lorna B. Goodman, Peter
L. Zimroth, Dennis C. Vacco, Attorney General of New York, Victoria
Graffeo, Solicitor General, Barbara Billet, Deputy Solicitor
General, and Lula Anderson, Assistant Attorney General, James K.
Hahn, Susan S. Sher, Benna Ruth Solomon, Robert A. Ginsburg, Helen
M. Gros, Dennis Hayes, Frank Shafroth, Dan Morales, Attorney
General of Texas, and Javier P. Guajardo, Special Assistant
Attorney General, Robert A. Butterworth, Attorney
4
General of Florida, and George L. Waas, Assistant Attorney
General, Deborah T. Poritz, Attorney General of New Jersey, and
Michael S. Bokar, Senior Deputy Attorney General, Grant Woods,
Attorney General of Arizona, and Robert Carey, First Assistant
Attorney General, Tom Udall, Attorney General of New Mexico, and
Christopher D. Coppin, Assistant Attorney General, Ada Treiger,
John
J. Copelan, Jr., Louise Renne, Burk E. Delventhal, Stan
M. Sharoff, T. Michael Mather, John P. Frank, Avis M. Russell,
Nicholas Rodriguez, Robert Cohen, Michael W L. McCrory, George
Rios, Burton H. Levin, Pastel Vann, Assistant Corporation Counsel
for the District of Columbia, and Kendrick Smith. t
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In conducting the 1990 United States Census, the Secretary of
Commerce decided not to use a particular statistical adjustment
that had been designed to correct an undercount in the initial
enumeration. The Court of Appeals for the Second Circuit held that
the Secretary's decision was subject to heightened scrutiny because
of its effect on the right of individual respondents to have their
vote counted equally. We hold that the Secretary's decision was not
subject to heightened scrutiny, and that it conformed to applicable
constitutional and statutory provisions.
tBriefs of
amici curiae urging reversal were filed for
the Commonwealth of Pennsylvania by
Thomas W Corbett, Jr.,
Attorney General, and
John G.
Knorr III, Chief Deputy
Attorney General; and for United States Senator Herb Kohl et al. by
Brady C.
Williamson.
Briefs of amici curiae urging affirmance were filed for the City
of Detroit by Linda D. Fegins; and for the Lawyers' Committee for
Civil Rights Under Law et al. by Jonathan L. Greenblatt, Paul C.
Saunders, Herbert
J. Hansell, Norman Redlich, Barbara R.
Arnwine, Thomas
J. Henderson, Christopher A. Hansen, Steven
R. Shapiro, Samuel Rabinove, Elaine R. Jones, Theodore M. Shaw,
Charles Stephen Ralston, and Arthur N. Eisenberg.
5
I
The Constitution requires an "actual Enumeration" of the
population every 10 years and vests Congress with the authority to
conduct that census "in such Manner as they shall by Law direct." 1
Art. I, § 2, cl. 3. Through the Census Act, 13 U. S. C. § 1
et
seq., Congress has delegated to the Secretary of the Department
of Commerce the responsibility to take "a decennial census of [the]
population ... in such form and content as he may determine .... "
§ 141(a). The Secretary is assisted in the performance of that
responsibility by the Bureau of the Census and its head, the
Director of the Census. See § 2; § 21 ("[The] Director shall
perform such duties as may be imposed upon him by law, regulations,
or orders of the Secretary").
The Constitution provides that the results of the census shall
be used to apportion the Members of the House of Representatives
among the States. See Art. I, § 2, cl. 3 ("Representatives ...
shall be apportioned among the several States ... according to
their respective Numbers ... "); Amdt. 14, § 2 ("Representatives
shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each
State ... "). Because the Constitution provides that the number of
Representatives apportioned to each State determines in part the
allocation to each State of votes for the election of the
President, the decennial census also affects the allocation of
members of the electoral college. See Art. II, § 1, cl. 2 ("Each
State shall appoint ... a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may be
entitled in the Congress ... "). Today, census data also have
important consequences not delineated in the Constitution: The
Federal Government considers census data in
1 The Census Clause provides in full: "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." Art. I, §
2, cl. 3.
6
dispensing funds through federal programs to the States, and the
States use the results in drawing intrastate political
districts.
There have been 20 decennial censuses in the history of the
United States. Although each was designed with the goal of
accomplishing an "actual Enumeration" of the population, no census
is recognized as having been wholly successful in achieving that
goal.2 Cf.
Karcher v.
Daggett, 462 U. S. 725, 732 (1983)
(recognizing that "census data are not perfect," and that
"population counts for particular localities are outdated long
before they are completed");
Gaffney v.
Cummings,
412 U. S. 735,
745 (1973) (census data "are inherently less than absolutely
accurate"). Despite consistent efforts to improve the quality of
the count, errors persist. Persons who should have been counted are
not counted at all or are counted at the wrong location; persons
who should not have been counted (whether because they died before
or were born after the decennial census date, because they were not
a resident of the country, or because they did not exist) are
counted; and persons who should have been counted only once are
counted twice. It is thought that these errors have resulted in a
net "undercount" of the actual American population in every
decennial census. In 1970, for instance, the Census Bureau
concluded that the census results were 2.7% lower than the actual
population.3 Brief for Respondents 12.
2 Indeed, even the first census did not escape criticism. Thomas
Jefferson, who oversaw the conduct of that census in 1790 as
Secretary of State, was confident that it had significantly
undercounted the young Nation's population. See C. Wright, History
and Growth of the United States Census 16-17 (1900).
3 One might wonder how the Census Bureau is able to determine
whether there is an undercount and its size. Specifically: Against
what standard are the census results measured? After all, if the
actual population of the United States is known, then the
conduct of the census would seem wholly redundant.
For the most part, we are told, the size of the error in a
particular census is determined by comparing the census results not
with some defi-
7
The undercount is not thought to be spread consistently across
the population: Some segments of the population are "undercounted"
to a greater degree than are others, resulting in a phenomenon
termed the "differential undercount." Since at least 1940, the
Census Bureau has thought that the undercount affects some racial
and ethnic minority groups to a greater extent than it does whites.
In 1940, for example, when the undercount for the entire population
was 5.4%, the undercount for blacks was estimated at 8.4% (and the
undercount for whites at 5.0%).
Ibid. The problem of the
differential undercount has persisted even as the census has come
to provide a more numerically accurate count of the population. In
the 1980 census, for example, the overall undercount was estimated
at 1.2%, and the undercount of blacks was estimated at 4.9%.
Ibid.
The Census Bureau has recognized the undercount and the
differential undercount as significant problems, and in the past
has devoted substantial effort toward achieving their reduction.
Most recently, in its preparations for the 1990 census, the Bureau
initiated an extensive inquiry into various means of overcoming the
impact of the undercount and the differential undercount. As part
of this effort, the Bureau created two task forces: the Undercount
Steering Committee, responsible for planning undercount research
and policy development; and the Undercount Research Staff (URS),
which conducted research into various methods of improving the
accuracy of the census. In addition, the Bureau consulted with
state and local governments and various outside experts and
organizations.
Largely as a result of these efforts, the Bureau adopted a wide
variety of measures designed to reduce the rate of
nite and established measure of the population, but rather with
estimates of the population developed from demographic data. See
App. to Pet. for Cert. in No. 94-1614, pp. 158a-168a, 366a-369a
(hereinafter Pet. App.). A similar procedure traditionally has been
used to determine the size and makeup of the differential
undercount, see
infra, at 9-10.
8
error in the 1990 enumeration, including an extensive
advertising campaign, a more easily completed census questionnaire,
and increased use of automation, which among other things
facilitated the development of accurate maps and geographic files
for the 1990 census. Pet. App. 321a322a.4 The Bureau also
implemented a number of improvements specifically targeted at
eliminating the differential undercount; these included advertising
campaigns developed by and directed at traditionally undercounted
populations and expanded questionnaire assistance operations for
nonEnglish speaking residents.
Ibid.
In preparing for the 1990 census, the Bureau and the task forces
also looked into the possibility of using large-scale statistical
adjustment to compensate for the undercount and differential
undercount. Although the Bureau had previously considered that
possibility (most recently in 1980), it always had decided instead
to rely upon more traditional methodology and the results of the
enumeration. See
Cuomo v.
Baldrige, 674 F. Supp. 1089
(SDNY 1987) (noting that Bureau rejected large-scale statistical
adjustment of the 1980 census). In 1985, preliminary investigations
by the URS suggested that the most promising method of statistical
adjustment was the "capture-recapture" or "dual system estimation"
(DSE) approach.
The particular variations of the DSE considered by the Bureau
are not important for purposes of this opinion, but an example may
serve to make the DSE more understandable. Imagine that one wanted
to use DSE in order to determine the number of pumpkins in a large
pumpkin patch. First, one would choose a particular section of the
patch as the representative subset to which the "recapture" phase
will be applied. Let us assume here that it is a section exactly
one-tenth the size of the entire patch that is selected. Then,
4 All references to Pet. App. are to the appendix to the
petition for certiorari in No. 94-1614 unless otherwise noted.
9
at the next step-the "capture" stage-one would conduct a fairly
quick count of the entire patch, making sure to record both the
number of pumpkins counted in the entire patch and the number of
pumpkins counted in the selected section. Let us imagine that this
stage results in a count of 10,000 pumpkins for the entire patch
and 1,000 pumpkins for the selected section. Next, at the
"recapture" stage, one would perform an exacting count of the
number of pumpkins in the selected section. Let us assume that we
now count 1,100 pumpkins in that section. By comparing the results
of the "capture" phase and the results of the "recapture" phase for
the selected section, it is possible to estimate that approximately
100 pumpkins actually in the patch were missed for every 1,000
counted at the "capture" phase. Extrapolating this data to the
count for the entire patch, one would conclude that the actual
number of pumpkins in the patch is 11,000.
In the context of the census, the initial enumeration of the
entire population (the "capture") would be followed by the
postenumeration survey (PES) (the "recapture") of certain
representative geographical areas. The Bureau would then compare
the results of the PES to the results of the initial enumeration
for those areas targeted by the PES, in order to determine a rate
of error in those areas for the initial enumeration (i.
e.,
the rate at which the initial enumeration undercounted people in
those areas). That rate of error would be extrapolated to the
entire population, and thus would be used to statistically adjust
the results of the initial enumeration.
The URS thought that the PES also held some promise for
correcting the differential undercount. The PES would be conducted
through the use of a system called poststratification. Thus, each
person counted through the PES would be placed into one, and only
one, of over 1,000 poststrata defined by five categories:
geography; age; sex; status
10
of housing unit (rent versus own); and race (including Hispanic
versus non-Hispanic origin).5 By comparing the poststratified PES
data to the results of the initial enumeration, the Bureau would be
able to estimate not only an overall undercount rate, but also an
undercount rate for each poststrata. Hence, the statistical
adjustment of the census could reflect differences in the
undercount rate for each poststrata.
Through the mid-1980's, the Bureau conducted a series of field
tests and statistical studies designed to measure the utility of
the PES as a tool for adjusting the census. The Director of the
Bureau decided to adopt a PES-based adjustment, and in June 1987,
he informed his superiors in the Department of Commerce of that
decision. The Secretary of Commerce disagreed with the Director's
decision to adjust, however, and in October 1987, the Department of
Commerce announced that the 1990 census would not be statistically
adjusted.
In November 1988, several plaintiffs (including a number of the
respondents in this action) brought suit in the United States
District Court for the Eastern District of New York, arguing that
the Secretary's decision against statistical adjustment of the 1990
census was unconstitutional and contrary to federal law. The
parties entered into an interim stipulation providing,
inter
alia, that the Secretary would reconsider the possibility of a
statistical adjustment.
In July 1991, the Secretary issued his decision not to use the
PES to adjust the 1990 census. Pet. App. 135a-415a. The Secretary
began by noting that large-scale statistical
5 Examples of poststrata actually used include: female blacks
between the ages of 20 and 29 who owned a home in either Detroit or
Chicago; nonblack non-Hispanic females, aged 45-64, living in owned
or rented housing in a nonmetropolitan area with a population of
10,000 or more in Arizona, Colorado, Idaho, Montana, Nevada, New
Mexico, Utah, or Wyoming; and male Asians or Pacific Islanders,
aged 65 or above, renting a home in either the Los Angeles-Long
Beach area or another central city in a metropolitan area in
Alaska, California, Hawaii, Oregon, or Washington.
11
adjustment of the census through the PES would "abandon a two
hundred year tradition of how we actually count people."
Id., at 138a. Before taking a "step of that magnitude," he
held, it was necessary to be "certain that it would make the census
better and the distribution of the population more accurate."
Ibid. Emphasizing that the primary purpose of the census was
to apportion political representation among the States, the
Secretary concluded that "the primary criterion for accuracy should
be distributive accuracy-that is, getting most nearly correct the
proportions of people in different areas."
Id., at
146a-147a.
After reviewing the recommendations of his advisers and the
voluminous statistical research that had been compiled, the
Secretary concluded that although numerical accuracy (at the
national level) might be improved through statistical adjustment,
he could not be confident that the distributive accuracy of the
census-particularly at the state and local level-would be improved
by a PES-based adjustment.6
Id., at 140a-141a, 200a-201a. In
particular, the Secretary noted, the adjusted figures became
increasingly unreliable as one focused upon smaller and smaller
political subdivisions.
Id., at 142a.
The Secretary stated that his decision not to adjust was
buttressed by a concern that adjustment of the 1990 census might
present significant problems in the future.
Id., at 143a.
Because small changes in adjustment methodology would have a large
impact upon apportionment-an impact that could be determined before
a particular methodology was chosen-the Secretary found that
statistical adjustment
6 The distinction between distributive and numerical accuracy
becomes clear with an example. Imagine that the Bureau somehow were
able to determine definitely that the census had failed to count
exactly 10 million people nationwide. If those 10 million "persons"
were added to the Nation's total population, and all 10 million
were allocated to one particular State, then the numerical accuracy
of the census would be improved, but the distributive accuracy
would almost certainly be significantly impaired.
12
of the 1990 census might open the door to political tampering in
the future. The Secretary also noted that statistical adjustment
might diminish the incentive for state and local politicalleaders
to assist in the conduct of the initial enumeration. See
id., at 143a-144a. In conclusion, the Secretary stated that
the Bureau would continue its research into the possibility of
statistical adjustment of future censuses, and would maintain its
efforts to improve the accuracy and inclusiveness of the initial
enumeration.
Id., at 145a.
The plaintiffs returned to court. The District Court concluded
that the Secretary's decision violated neither the Constitution nor
federal law. See
New York v.
United States Dept. of
Commerce, 822 F. Supp. 906 (EDNY 1993).
Respondents appealed, arguing that the District Court had
adopted the wrong standard of review for their constitutional
claim,7 and the Court of Appeals for the Second Circuit reversed by
a divided vote.
34 F.3d
1114 (1994); Pet. App. 1a-40a. The majority looked to a line of
precedent involving judicial review of intrastate districting
decisions, see,
e. g., Karcher v.
Daggett, 462 U. S. 725 (1983);
Wesberry v.
Sanders, 376 U. S. 1 (1964), and
found that a heightened standard of review was required here both
because the Secretary's decision impacted a fundamental right,
viz., the right to have one's vote counted, and because the
decision had a disproportionate impact upon certain identifiable
minority racial groups. 34 F. 3d, at 1128. The court then held that
the plaintiffs had shown that the Secretary had failed to make a
good-faith effort to achieve equal districts as nearly as possible,
id., at 1130, and therefore that the defendants must bear
the burden of proving that population deviations were necessary to
achieve some legitimate state goal,
id., at 1131. The court
remanded for an inquiry into whether the Secretary could show that
the decision not to
7 Respondents did not appeal the District Court's treatment of
their statutory claims.
13
adjust was essential for the achievement of a legitimate
governmental objective.
Ibid.
The dissenting judge stated that he would have affirmed based
upon the decision of the District Court. See
ibid. He also
noted that the majority's decision created a conflict with two
other decisions of the Courts of Appeals. See
Detroit v.
Franklin, 4 F.3d
1367 (CA6 1993), and
Tucker v.
United States Dept. of
Commerce, 958 F.2d
1411 (CA71992).
Wisconsin, Oklahoma, and the United States each filed a petition
for certiorari. We granted those petitions, and consolidated them
for argument. 515 U. S. 1190 (1995). We now reverse.
II
In recent years, we have twice considered constitutional
challenges to the conduct of the census. In
Department of
Commerce v.
Montana, 503 U. S. 442 (1992), the
State of Montana, several state officials, and Montana's Members of
Congress brought suit against the Federal Government, challenging
as unconstitutional the method used to determine the number of
Representatives to which each State is entitled. A majority of a
three-judge District Court looked to the principle of equal
representation for equal numbers of people that was applied to
intrastate districting in
Wesberry v.
Sanders, supra,
and held it applicable to congressional apportionment of seats
among the States. Noting a significant variance between the
population of Montana's single district and the population of the
"ideal district," the court found that Congress' chosen method of
apportionment violated the principle of
Wesberry, and
therefore voided the federal statute providing the method of
apportionment.
In a unanimous decision, this Court reversed. We began by
revisiting
Wesberry, a case in which the Court held
unconstitutional wide disparities in the population of
congressional districts drawn by the State of Georgia.
Montana,
supra, at 459-460. We recognized that the principle of
Wesberry"'equal representation for equal numbers of people'"
-had
14
evolved though a line of cases into a strictly enforced
requirement that a State" 'make a good-faith effort to achieve
precise mathematical equality'" among the populations of
congressional districts. See
Montana, supra, at 460, quoting
Kirkpatrick v.
Preisler, 394 U. S. 526, 530-531
(1969) (disparities between congressional districts in Missouri
held unconstitutional); see also
Karcher v.
Daggett,
supra (1 % disparity between population of New Jersey districts
held unconstitutional). Returning to Montana's challenge to
Congress' apportionment decision, we noted that the
Wesberry
line of cases all involved intrastate disparities in the population
of voting districts that had resulted from a State's redistricting
decisions, whereas Montana had challenged interstate disparities
resulting from the actions of Congress.
Montana, supra, at
460.
We found this difference to be significant beyond the simple
fact that Congress was due more deference than the States in this
area.
Wesberry required a State to make "a good-faith effort
to achieve precise mathematical equality" in the size of voting
districts.
Kirkpatrick, supra, at 530-531. While this
standard could be applied easily to intrastate districting because
there was no "theoretical incompatibility entailed in minimizing
both the absolute and the relative differences" in the sizes of
particular voting districts, we observed that it was not so easily
applied to interstate districting decisions where there was a
direct tradeoff between absolute and relative differences in size.
Montana, supra, at 461-462. Finding that Montana demanded
that we choose between several measures of inequality in order to
hold the
Wesberry standard applicable to congressional
apportionment decisions, we concluded that "[n]either mathematical
analysis nor constitutional interpretation provide[d] a conclusive
answer" upon which to base that choice.
Montana, supra, at
463.
We further found that the Constitution itself, by guaranteeing a
minimum of one representative for each State, made it virtually
impossible in interstate apportionment to achieve
15
the standard imposed by
Wesberry. Montana, supra, at 463.
In conclusion, we recognized the historical pedigree of the
challenged method of apportionment, and reemphasized that Congress'
"good-faith choice of a method of apportionment of Representatives
among the several States 'according to their respective Numbers'
commands far more deference than a state districting decision that
is capable of being reviewed under a relatively rigid mathematical
standard."
Montana, supra, at 464.
In
Franklin v.
Massachusetts, 505 U. S. 788 (1992), we
reiterated our conclusion that the Constitution vests Congress with
wide discretion over apportionment decisions and the conduct of the
census. In
Franklin, the State of Massachusetts and two of
its registered voters sued the Federal Government, arguing that the
method used by the Secretary to count federal employees serving
overseas was (among other things) unconstitutional. Restating the
standard of review established by
Montana, we examined the
Secretary's decision in order to determine whether it was
"consistent with the constitutional language and the constitutional
goal of equal representation." See
Franklin, supra, at 804;
Montana, supra, at 459. After a review of the historical
practice in the area, we found that the plaintiffs had not met
their burden of proving that a decision contrary to that made by
the Secretary would "make representation ... more equaL"
Franklin, 505 U. S., at 806. Concluding that the Secretary's
decision reflected a "judgment, consonant with, though not dictated
by, the text and history of the Constitution ... ," we held the
Secretary's decision to be well within the constitutionallimits on
his discretion.
Ibid.
In its decision in this action, the Court of Appeals found that
a standard more strict than that established in
Montana and
Franklin should apply to the Secretary's decision not to
statistically adjust the census. The court looked to equal
protection principles distilled from the same line of state
redistricting cases relied upon by the plaintiffs in
Montana,
16
and found that both the nature of the right asserted by
respondents-the right to have one's vote counted equallyand the
nature of the affected classes-"certain identifiable minority
groups"-required that the Secretary's decision be given heightened
scrutiny. 34 F. 3d, at 1128. The court drew from the District
Court's decision "implicit" findings: that the census did not
achieve equality of voting power as nearly as practicable; "that
for most purposes and for most of the population [the PES-based]
adjustment would result in a more accurate count than the original
census; and that the adjustment would lessen the disproportionate
undercounting of minorities."
Id., at 1129.
The court recognized two significant differences between the
intrastate districting cases and the instant action: first, that
this case involves the federal rather than a state government; and
second, that constitutional requirements make it impossible to
achieve precise equality in voting power nationwide.
Ibid.
But it found these differences nondeterminative, deciding that no
deference was owed to the Executive Branch on a question of law,
and that the "impossibility of achieving precise mathematical
equality is no excuse for [the Federal Government] not making [the]
mandated good-faith effort."
Ibid. The court found that the
respondents here had established a prima facie violation of the
Wesberry standard both by showing that the PES-based
adjustment would increase numerical accuracy, and by virtue of the
fact that "the differential undercount in the 1990 enumeration was
plainly foreseeable and foreseen." 34 F. 3d, at 11301131. The court
held that the Secretary's decision would have to be vacated as
unconstitutional unless on remand he could show that the decision
not to adjust "(a) furthers a governmental objective that is
legitimate, and (b) is essential for the achievement of that
objective."
Id., at 1131.
We think that the Court of Appeals erred in holding the "one
person-one vote" standard of
Wesberry and its progeny
applicable to the action at hand. For several reasons, the
17
"good-faith effort to achieve population equality" required of a
State conducting intrastate redistricting does not translate into a
requirement that the Federal Government conduct a census that is as
accurate as possible. First, we think that the Court of Appeals
understated the significance of the two differences that it
recognized between state redistricting cases and the instant
action. The court failed to recognize that the Secretary's decision
was made pursuant to Congress' direct delegation of its broad
authority over the census. See Art. I, § 2, cl. 3 (Congress may
conduct the census "in such Manner as they shall by Law direct").
The court also undervalued the significance of the fact that the
Constitution makes it impossible to achieve population equality
among interstate districts. As we have noted before, the
Constitution provides that "[t]he number of Representatives shall
not exceed one for every 30,000 persons; each State shall have at
least one Representative; and district boundaries may not cross
state lines."
Montana, 503 U. S., at 447-448.
While a court can easily determine whether a State has made the
requisite "good-faith effort" toward population equality through
the application of a simple mathematical formula, we see no way in
which a court can apply the
Wesberry standard to the Federal
Government's decisions regarding the conduct of the census. The
Court of Appeals found that
Wesberry required the Secretary
to conduct a census that would "achieve voting-power equality,"
which it understood to mean a census that was as accurate as
possible. 34 F. 3d, at 1129. But in so doing, the court implicitly
found that the Constitution prohibited the Secretary from
preferring distributive accuracy to numerical accuracy, and that
numerical accuracy-which the court found to be improved by a
PES-based adjustment-was constitutionally preferable to
distributive accuracy. See
id., at 1131 ("[T]he Secretary
did not make the required effort to achieve numerical accuracy as
nearly as practicable, ... the burden thus shifted to
18
the Secretary to justify his decision not to adjust ... "). As
in
Montana, where we could see no constitutional basis upon
which to choose between absolute equality and relative equality, so
here can we see no ground for preferring numerical accuracy to
distributive accuracy, or for preferring gross accuracy to some
particular measure of accuracy. The Constitution itself provides no
real instruction on this point, and extrapolation from our
intrastate districting cases is equally unhelpful. Quite simply,
"[t]he polestar of equal representation does not provide sufficient
guidance to allow us to discern a single constitutionally
permissible course."
Montana, supra, at 463.
In
Montana, we held that Congress' "apparently goodfaith
choice of a method of apportionment of Representatives among the
several States 'according to their respective Numbers'" was not
subject to strict scrutiny under
Wesberry. Montana, supra,
at 464. With that conclusion in mind, it is difficult to see why or
how
Wesberry would apply to the Federal Government's conduct
of the census-a context even further removed from intrastate
districting than is congressional apportionment. Congress' conduct
of the census, even more than its decision concerning
apportionment, "commands far more deference than a state
districting decision that is capable of being reviewed under a
relatively rigid mathematical standard."8
Montana, supra, at
464.
Rather than the standard adopted by the Court of Appeals, we
think that it is the standard established by this
8 Nor do we think that strict scrutiny applies here for some
other reason.
Strict scrutiny of a classification affecting a protected class
is properly invoked only where a plaintiff can show intentional
discrimination by the Government.
Washington v.
Davis, 426 U.
S. 229, 239-245 (1976). Respondents here have not argued that
the Secretary's decision not to adjust was based upon an intent to
discriminate on the basis of race. Indeed, in light of the
Government's extraordinary efforts to include traditionally
undercounted minorities in the 1990 census, see Pet. App. 78a,
321a-322a, we think that respondents here would have had a tough
row to hoe had they set out to prove intentional discrimination by
the Secretary.
19
Court in
Montana and
Franklin that applies to the
Secretary's decision not to adjust. The text of the Constitution
vests Congress with virtually unlimited discretion in conducting
the decennial "actual Enumeration," 9 see Art. I, § 2, cl. 3, and
notwithstanding the plethora of lawsuits that inevitably accompany
each decennial census,10 there is no basis for thinking that
Congress' discretion is more limited than the text of the
Constitution provides. See also
Baldrige v.
Shapiro,
455 U. S. 345,
361 (1982) (noting broad scope of Congress' discretion over
census). Through the Census Act, Congress has delegated its broad
authority over the census to the Secretary.u See 13 U. S. C. §
141(a) (Secretary shall take "a decennial census of [the]
population ... in such form and content as he may determine ... ").
Hence, so long as the Secretary's conduct of the census is
"consistent with the
9We do not decide whether the Constitution might prohibit
Congress from conducting the type of statistical adjustment
considered here. See Brief for Petitioner in No. 94-1614, pp.
40-42.
10 See,
e. g., Franklin v.
Massachusetts, 505 U. S. 788, 790 (1992)
("As one season follows another, the decennial census has again
generated a number of reapportionment controversies");
National
Law Center on Homelessness and Poverty v.
Brown, appeal
pending, No. 94-5312 (CAD C) (argued Oct. 6, 1995) (challenging
Census Bureau's procedures for finding and counting homeless
persons);
Carey v.
Klutznick, 637
F.2d 834 (CA2 1980) (seeking order directing Census
Bureau to adopt certain processes for counting persons);
Borough
of Bethel Park v.
Stans, 449 F. 2d
575 (CA3
1971).
11 We do not here decide the precise bounds of the authority
delegated to the Secretary through the Census Act. First, because
no party here has suggested that Congress has, in its delegation of
authority over the conduct of the census to the Secretary,
constrained the Secretary's authority to decide not to adjust the
census, we assume here that the Secretary's discretion not to
adjust the census is commensurate with that of Congress. See Brief
for Petitioner in No. 94-1614, p. 24, n. 19 (stating that "Congress
did not enact any ... legislation ... to compel ... statistical
adjustment" of the 1990 census). Second, although Oklahoma argues
that Congress has constrained the Secretary's discretion to
statistically adjust the decennial census, see 13 U. S. C. § 195,
we need not decide that question in order to resolve this
action.
20
constitutional language and the constitutional goal of equal
representation,"
Franklin, 505 U. S., at 804, it is within
the limits of the Constitution. In light of the Constitution's
broad grant of authority to Congress, the Secretary's decision not
to adjust need bear only a reasonable relationship to the
accomplishment of an actual enumeration of the population, keeping
in mind the constitutional purpose of the census.
In 1990, the Census Bureau made an extraordinary effort to
conduct an accurate enumeration, and was successful in counting
98.4% of the population. See 58 Fed. Reg. 70 (1993); Brief for
Federal Parties 28. The Secretary then had to consider whether to
adjust the census using statistical data derived from the PES. He
based his decision not to adjust the census upon three
determinations. First, he held that in light of the constitutional
purpose of the census, its distributive accuracy was more important
than its numerical accuracy. Second, he determined that the
unadjusted census data would be considered the most distributively
accurate absent a showing to the contrary. And finally, after
reviewing the results of the PES in light of extensive research and
the recommendations of his advisers, the Secretary found that the
PES-based adjustment would not improve distributive accuracy. Each
of these three determinations is well within the bounds of the
Secretary's constitutional discretion.
As we have already seen,
supra, at 18, the Secretary's
decision to focus on distributive accuracy is not inconsistent with
the Constitution. Indeed, a preference for distributive accuracy
(even at the expense of some numerical accuracy) would seem to
follow from the constitutional purpose of the census, viz., to
determine the apportionment of the Representatives among the
States. Respondents do not dispute this point. See Brief for
Respondents 54 ("Distributive accuracy is an appropriate criterion
for judging census accuracy because it calls attention to a concern
with the uses
21
to which census data are put"). Rather, they challenge the
Secretary's first determination by arguing that he improperly
"regarded evidence of superior numeric accuracy as 'not relevant'
to the determination of distributive accuracy."
Id., at 39
(quoting Pet. App. 201a); see also Brief for Respondents 51-54. In
support of this argument, respondents note that an enumeration that
results in increased numerical accuracy will also result in
increased distributive accuracy.
We think that respondents rest too much upon the statement by
the Secretary to which they refer. When quoted in full, the
statement reads: "While the preponderance of the evidence leads me
to believe that the total population at the national level falls
between the census counts and the adjusted figures, that conclusion
is not relevant to the determination of distributive accuracy."
Pet. App. 201a. In his decision, the Secretary found numerical
accuracy (in addition to distributive accuracy) to be relevant to
his decision whether to adjust. See
id., at 157a. Even if
the Secretary had chosen to subordinate numerical accuracy, we are
not sure why the fact that distributive and numerical accuracy
correlate closely in an improved
enumeration would require
the Secretary to conclude that they correlate also for a PESbased
statistical adjustment.
Turning to the Secretary's second determination, we previously
have noted, and respondents do not dispute, the importance of
historical practice in this area. See
Franklin, supra, at
803-806 (noting importance of historical experience in conducting
the census); cf.
Montana, 503 U. S., at 465 ("To the extent
that the potentially divisive and complex issues associated with
apportionment can be narrowed by the adoption of both procedural
and substantive rules that are consistently applied year after
year, the public is well served ... "). Nevertheless, respondents
challenge the Secretary's second determination by arguing that his
understanding of historical practice is flawed. According to
respondents, the Secretary assumed that the census traditionally
was con-
22
ducted via a simple "headcount," thereby ignoring the fact that
statistical adjustment had been used in both the 1970 and 1980
censuses. See Brief for Respondents 4-5.
We need not tarry long with this argument. The Secretary
reasonably recognized that a PES-based statistical adjustment would
be a significant change from the traditional method of conducting
the census. The statistical adjustments in 1970 and 1980 to which
respondents refer were of an entirely different type than the
adjustment considered here, and they took place on a dramatically
smaller scale. See
Cuomo v.
Baldrige, 674 F. Supp.,
at 1107 (rejecting argument that Secretary had to conduct PES-like
statistical adjustment of 1980 census and finding that "none of
[the] adjustments in 1970 were even remotely similar to the types
of wholesale adjustments presently suggested ... "). Moreover, the
PES-based adjustment would have been the first time in history that
the States' apportionment would have been based upon counts in
other States. See Pet. App. 251a-252a. Here, the Secretary's
understanding of the traditional method of conducting the census
was well founded, as was his establishment of a rebuttable
presumption that the traditional method was the most accurate.
The Secretary ultimately determined that the available evidence
"tends to support the superior distributive accuracy of the actual
enumeration,"
id., at 185a, and it is this determination at
which respondents direct the brunt of their attack. Respondents
contend that the Secretary's review of the evidence is due no
deference from this Court. They argue that the Secretary's decision
is not the sort of "highly technical" administrative decision that
normally commands judicial deference, and that regardless of its
technical complexity, the Secretary's review of the evidence
presents a constitutional issue that deserves no deference.
Respondents contend that the Secretary's review of the evidence is
of dubious validity because the Secretary is admittedly "not a
statistician,"
id., at 139a, and because his conclusion is
at
23
odds with that of the Director of the Census. According to
respondents, we should carefully comb the Secretary's decision in
order to review his conclusions
de novo.
Respondents' argument fundamentally misapprehends the basis for
our deference to the Secretary's determination that the adjusted
census results do not provide a more distributively accurate count
of the population. Our deference arises not from the highly
technical nature of his decision, but rather from the wide
discretion bestowed by the Constitution upon Congress, and by
Congress upon the Secretary. Regardless of the Secretary's
statistical expertise, it is he to whom Congress has delegated its
constitutional authority over the census. For that same reason, the
mere fact that the Secretary's decision overruled the views of some
of his subordinates is by itself of no moment in any judicial
review of his decision.
Turning finally to review the Secretary's conclusion that the
PES-based adjustment would not improve distributive accuracy, we
need note only that the Secretary's conclusion is supported by the
reasoning of some of his advisers, and was therefore a reasonable
choice in an area where technical experts disagree. Cf.
Tucker v.
United States Dept. of Commerce, 958 F. 2d,
at 1418 (Plaintiffs seeking PES-based statistical adjustment "are
asking [courts] to take sides in a dispute among statisticians,
demographers, and census officials concerning the desirability of
making a statistical adjustment to the census headcount"). The
Under Secretary of Commerce for Economic Affairs and the
Administrator of the Economics and Statistics Administration both
voted against adjustment. Pet. App. 59a, 140a. Moreover, even those
who recommended in favor of adjustment recognized that their
conclusion was not compelled by the evidence: The Director of the
Census Bureau, upon whose recommendation respondents heavily rely,
stated in her report to the Secretary that "[a]djustment is an
issue about which reasonable men and women and the best
statisticians and demographers
24
can disagree." App. 73. And one of the principal statisticians
at the Bureau, Dr. Robert E. Fay, "'told the Secretary that ...
reasonable statisticians could differ'" on the question of
adjustment. Pet. App. 91a. Therefore, and because we find the
Secretary's two prior determinations as well to be entirely
reasonable, we conclude that his decision not to adjust the 1990
census was "consonant with ... the text and history of the
Constitution."
Franklin, 505 U. S., at 806.
III
The Constitution confers upon Congress the responsibility to
conduct an "actual Enumeration" of the American public every 10
years, with the primary purpose of providing a basis for
apportioning political representation among the States. Here, the
Secretary of Commerce, to whom Congress has delegated its
constitutional authority over the census, determined that in light
of the constitutional purpose of the census, an "actual
Enumeration" would best be achieved without the PES-based
statistical adjustment of the results of the initial enumeration.
We find that conclusion entirely reasonable. Therefore we hold that
the Secretary's decision was well within the constitutional bounds
of discretion over the conduct of the census provided to the
Federal Government. The judgment of the Court of Appeals is
Reversed.
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