The opinion of the court was delivered by: WEINFELD
EDWARD WEINFELD, District Judge.
Plaintiff, a New York resident, moves for a temporary restraining order barring the defendant, the Director of the Census Bureau, from transmitting apportionment computations to the President of the United States that do not conform to the constitutional provisions of section 2 of the Fourteenth Amendment. Plaintiff also moves under 28 U.S.C., sections 2282 and 2284 for the convening of a three-judge court to pass upon his application for a permanent injunction and for summary judgment upon his claim to enjoin the Census Director from acting under the authority of 13 U.S.C. section 141(a) and (b) on the ground that this statute, which governs the manner of taking the census and the tabulation of total population by States is unconstitutional for failure to comply with section 2 of the Fourteenth Amendment.
The plaintiff alleges that if the requested relief is not granted, he and other citizens similarly situated throughout the country will suffer irreparable injury in that they will be denied their right to constitutional apportionment of representatives and Presidential electors. The government urges dismissal of the complaint without the convening of a statutory court for lack of a substantial constitutional question on the basis of prior legislative and judicial decisions.
Plaintiff's claim is primarily hinged to section 2 of the Fourteenth Amendment, which provides:
"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, [and] Representatives in Congress * * * is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
Also pertinent is article 1, section 2, paragraph 3, of the Constitution, which provides:
"Representatives * * * shall be apportioned among the several States which may be included within this Union, 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 [Congress] shall by Law direct."
And also pertinent is the constitutional provision relating to electors, article 2, section 1, clause 2, which provides:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; * * *."
The essence of the plaintiff's complaint is that the decennial census tabulation authorized by 13 U.S.C. section 141(b)
is repugnant to the mandate of section 2 of the Fourteenth Amendment, since it does not require a tabulation of twenty-one year old male citizens of each State who have been denied the right to vote. Plaintiff's claim of infringement of his right to constitutional apportionment of Representatives of the House and Presidential electors is based upon the fact that the census provides the basis for determining "the number of Representatives to which each State would be entitled * * * by the method known as the method of equal proportions."
The apportionment process is commenced by the President upon his receipt from the Census Director of the figures representing the total population broken down by States. The President transmits the information to the Congress, and the Clerk of the House of Representatives sends to the executive of each State a certificate showing the number of representatives to which the State is entitled. Thus, the census enumeration is of critical significance in deciding the number of representatives to which each State is entitled. Accordingly, plaintiff argues that if disenfranchised voters are not tabulated because section 141 of Title 13 does not require such tabulation, the States in which disenfranchised voters reside will be given disproportionate representation in relation to those States in which voters are not deprived of their right of franchise.
Plaintiff, to support his allegation that such malapportionment will occur if the 1970 census is used as the basis for apportioning representation in the House, has submitted a copy of a letter dated October 20, 1970, from the Census Director to plaintiff's Representative in the Congress, in which he states in part:
"The report which the Secretary will transmit to the President of the United States on or before December 1, in accordance with Section 141(b) of Title 13, United States Code, will contain the tabulation of total population by States as required for the apportionment of Representatives. * * *
"Section 2 of the 14th Amendment was not used in 1960 and will not be used in 1970 in making these computations, inasmuch as the Congress has made no provision for implementing this Section."