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CITY OF N.Y. v. U.S. DEPT. OF COMMERCE

June 7, 1990

THE CITY OF NEW YORK, THE STATE OF NEW YORK, THE PEOPLE OF THE STATE OF CALIFORNIA EX REL. JOHN K. VAN DE KAMP, ATTORNEY GENERAL, THE CITY OF LOS ANGELES, THE CITY OF CHICAGO, DADE COUNTY, FLORIDA, THE U.S. CONFERENCE OF MAYORS, THE NATIONAL LEAGUE OF CITIES, THE LEAGUE OF UNITED LATIN AMERICAN CITIZENS, THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, MARCELLA MAXWELL, DONALD H. ELLIOTT, JOHN MACK, OLGA MORALES, TIMOTHY W. WRIGHT III, RAYMOND G. ROMERO, ANTONIO GONZALES, AND ATHALIE RANGE, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF COMMERCE, ROBERT A. MOSBACHER, AS SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE, MICHAEL R. DARBY, AS UNDER SECRETARY FOR ECONOMIC AFFAIRS OF THE UNITED STATES DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, BARBARA EVERITT BRYANT, AS DIRECTOR OF THE BUREAU OF THE CENSUS, GEORGE BUSH, AS PRESIDENT OF THE UNITED STATES, AND DONALD K. ANDERSON, AS CLERK OF THE UNITED STATES HOUSE OF REPRESENTATIVES, DEFENDANTS.



The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM AND ORDER

Census-taking has never been easy, and has rarely received favorable press. King David learned this the hard way. In First Samuel, the King directed his Census Bureau, one Joab, to "go through all the tribes of Israel From Dan to Bersabee, and number ye the people that I may know the number of them." When Joab had reluctantly counted as far as 800,000, David realized that, in some eyes, his task might be regarded as hubris on the scale of the Tower of Babel. He repented, lamenting: "I have sinned very much in what I have done; But I pray thee O Lord, to take away the iniquity of thy servant because I have done exceedingly foolishly." The Lord turned a deaf ear for he sent David a pestilence and 70,000 died.

Caesar Augustus fared little better with David's descendant, Joseph, who, it will be recalled, had to travel with Mary to Nazareth for a census count, only to find there was no room for his tiny family in the inn. Christianity thus was founded in a stable — thanks to the census — and, according to Gibbon's Decline and Fall of the Roman Empire, it was Christianity that toppled the empire of the Caesars.

Colonial Americans seemed to have heeded these lessons, for no government enumeration of the colonies was ever undertaken. The Founding Fathers, however, were persuaded that the efficient functioning of a new democracy required a census. The original Constitution, therefore, required a simple head count of all Americans every ten years.*fn1 The task of conducting the first census was given, not surprisingly, to a patriot who had skipped the Constitutional Convention, Thomas Jefferson. Americans resisted on a grand scale, and matters have not improved in two hundred years.

For whatever reasons it goes against the American grain to submit to counting. In the 1980 count Census Bureau officials concede that they missed at least three million people. Statisticians and demographers claim this is a modest assessment. In any event, no one claims that the count is precise. Indeed, shots rang out as census takers recently approached one building in Brooklyn, thereby aborting further attempts to count that building's occupants.

Various statistical and sampling techniques have been employed, at least to some extent, by the Bureau of the Census to arrive at as accurate a figure as humanly possible, although the Bureau largely adheres to what it refers to as an "actual enumeration." Therein lies the rub, and this lawsuit. Plaintiffs claim that the actual enumeration the Bureau has used in the past and originally intended to use in the 1990 census is skewed to underestimate large blocks of minorities, with most of the undercounting occurring in the large urban areas. If this turns out to be true, the inevitable consequence will be under-representation in the Congress, and under-allocation of government revenues, grants, programs and the like. Plaintiffs argue that the 1990 census should be statistically adjusted to compensate for this "differential undercount" of minorities, if such an adjustment results in the most accurate census practicable.

FACTS

Plaintiffs began this suit in November 1988, seeking to enjoin the conduct of the 1990 census. Extensive negotiations were conducted in the summer of 1989, culminating on July 17, 1989 with an eleventh-hour stipulation (the "Stipulation") of the parties. The short-term effect of that Stipulation was to moot plaintiffs' motion for a preliminary injunction, halting the immediate course of the 1990 decennial census; the long-term effect of the Stipulation remains to be seen.

Plaintiffs now return to the Court, alleging defendants have violated that Order and Stipulation. Plaintiffs seek two-fold relief. First, plaintiffs ask for a declaratory judgment, declaring that a statistical adjustment of the federal census does not violate the Constitution or 13 U.S.C. § 195.*fn2 Second, plaintiffs seek a supplemental order from the Court: (1) invalidating the "guidelines" promulgated under the Stipulation for determining whether a practicable statistical correction would increase census accuracy; (2) ordering defendants to adjust the census, unless they demonstrate to the Court that the original enumeration is more accurate or that some other compelling reason prevents a statistical adjustment; and (3) directing defendants to fulfill their obligations to the Special Advisory Panel established under the terms of the Stipulation.

Defendants reject all of plaintiffs' claims as meritless, and they argue that it is improper for the Court to entertain such imagined grievances at this juncture.

Defendants first argue that plaintiffs' claims for a declaratory judgment and for a supplemental order are not ripe for review. Essentially, defendants argue that, although the "guidelines" promulgated pursuant to the Stipulation are final, the Secretary of Commerce (the "Secretary") has not yet applied them. Thus, the Secretary may yet act under the guidelines to adjust the census in a manner that accords with plaintiffs' requests, thereby obviating the need for further relief. Defendants also contend that, since the Secretary has yet to decide whether an adjustment is constitutional, there is no decision ready for review.

Additionally, even if plaintiffs' claims were ripe, according to defendants, the decision whether to adjust is a political question. If so, plaintiffs' claims should be dismissed as nonjusticiable. Finally, if judicial review is proper and some form of relief is available at this time, defendants maintain that the specific relief requested is excessive and wholly unwarranted.

The Stipulation

Under the Stipulation, the Secretary retains all authority and decision-making power, "including without limitation the decision whether or not to adjust the 1990 Decennial Census." Stip. at 1. Defendants forthrightly concede in the Stipulation that a post-enumeration survey ("PES") and other adjustment operations defendants deem necessary will be conducted for the express purpose of achieving the most accurate count practicable.

To insure that this self-imposed mandate will be carried out properly, the Stipulation establishes two linchpin provisions. First, "[d]efendants agree that the Department will promptly develop and adopt guidelines articulating what defendants believe are the relevant technical and nontechnical statistical and policy grounds for decision on whether to adjust the 1990 Decennial Census population counts." Stip. at 3. In addition,

  Defendants shall establish . . . an independent
  Special Advisory Panel (the "Panel") to advise the
  defendants on all matters relevant to the
  implementation of this Stipulation and, in
  particular, and without limitation, the guidelines
  . . ., the application and achievement of the
  guidelines, the expedition with which defendants
  are proceeding toward decision on adjustment, and
  plans and schedules for the implementation of the
  Census and the PES in a manner that will result in
  the most accurate final census data at the
  earliest practicable time.

Stip. at 4-5.

Plaintiffs believe that defendants have failed to fulfill their explicit obligations under each provision.

DISCUSSION

I. POLITICAL QUESTION

Pursuant to the Stipulation, "plaintiffs reserve the right to challenge any of the guidelines . . . adopted, omitted, implemented, or announced in connection with or arising out of this Stipulation." Stip. at 7. Despite this language, defendants maintain that a challenge to the guidelines presents a nonjusticiable political question.*fn3

Some actions of the Executive and some interaction between the executive and legislative branches are, in an Article III sense, inappropriate for judicial intrusion. Holtzman v. Schlesinger, 484 F.2d 1307, 1309 (2d Cir.), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974). As a function of separation of powers, cases which raise a political question are nonjusticiable and, by constitutional mandate, preclude judicial intervention. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962). While sensitive to such limitations, this Court is satisfied that a challenge to the final guidelines, even as they relate to the Secretary's yet unmade decision on a census adjustment, does not present a political question.

The identical argument against justiciability arose in litigation, also brought by the City and State of New York, concerning adjustment of the 1980 census. Carey v. Klutznick, 508 F. Supp. 404 (S.D.N.Y. 1980). The district court, rejecting defendants' suggestion of a political question, found:

    While Carey v. Klutznick involves a challenge to
  the census, and not precisely a challenge to
  congressional redistricting [as in Baker v. Carr,
  369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)],
  the former provides the foundation for
  apportionment and redistricting and, therefore, the
  precedents sustaining challenges to congressional
  ...

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