Amicus Curiae Brief — Franklin v. Massachusetts

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= FILED ©

9 APR 13 1992

No. 91-1502 | OFFICE OF THE am

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1991

BARBARA HACKMAN FRANKLIN, et al.,

Appellants,

Vv.

COMMONWEALTH OF MASSACHUSETTS, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

BRIEF OF STATE OF WASHINGTON

AS AMICUS IN SUPPORT OF APPELLANTS

KENNETH O. EIKENBERRY

Attorney General

‘ JAMES M. JOHNSON*

Sr. Assistant Attorney General

J. LAWRENCE CONIFF

JEFFREY T. EVEN

CAROLE A. RESSLER

Aflorneys

Attorneys for Amicus Washington

*Counsel of Record

7th Floor P.O. Box 40100

Olympia, Washington 98504

(206) 753-4556

No. 91-1502

—: .7.-See

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1991

BARBARA HACKMAN FRANKLIN, et al.,

Appellants,

Vv.

COMMONWEALTH OF MASSACHUSETTS, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

BRIEF OF STATE OF WASHINGTON

AS AMICUS IN SUPPORT OF APPELLANTS

KENNETH O. EIKENBERRY

Attorney General

JAMES M. JOHNSON*

Sr. Assistant Anorney General

J. LAWRENCE CONIFF

JEFFREY T. EVEN

CAROLE A. RESSLER

Attorneys

Atiorneys for Amicus Washington

*Counsel of Record

QUESTIONS PRESENTED

The three-judge district court held that the Census Clause

of the Constitution (Art. I, § 2, Cl. 3) and the Census Act (13

U.S.C. § 141) permit the Secretary of Commerce to include

federal personnel stationed abroad (and their dependents) in the

State population totals on which the apportionment of

Representatives is based. However, the court held that the

Secretary's manner of doing so following the 1990 census was

arbitrary and capricious, in violation of the Administrative

Procedure Act (APA), 5 U.S.C. § 706(2)(A), because he did not

furnish an adequate justification. The questions presented are:

1. Whether judicial review of the apportionment of

Representatives, based on the census including federal personnel

stationed abroad, is barred by virtue of the political question

doctrine, the APA's exceptions for situations in which “statutes

preclude review" and “agency action is committed to agency

discretion by law," 5 U.S.C. 702(a), and the inapplicability of

the APA to the President.

2. Whether, if judicial review is not barred the inclusion

of federal personne! stationed abroad was arbitrary and

3. Whether, if the district court correctly found that the

Secretary's determination violated the APA, it properly ordered

appellants to effect a new apportionment of Representatives with

the personnel abroad thrown out of the underlying census count,

rather than remanding the matter to the Secretary for further

proceedings.

ii iii

TABLE OF CONTENTS ll. THE SECRETARY OF COMMERCE ACTED

WITHIN AND IN ACCORDANCE WITH

CONGRESS’ DELEGATION OF CENSUS

INTERESTS OF AMICUS WASHINGTON ....__.. l RT hv eneus cheb ebbeé cea cecesec

: A. The Lower Court Ignored the Record Basis for the

A Washington's Interest in Retaining Nine House Decision to Use “Home of Record” ........

Seats and Declaring the Process Final ee 2 B. Congress Encouraged and Directed the Secretary's

B. Washington's Interests Include the Constitutional Decision to Include Federal Overseas Personnel by

Rights of Affected Citizens Serving Overseas .. 3 GE ccccccvowk ices c<

= C. The Court Misunderstood "Home of Record” . .

STATEMENT OF THECASE ............__.. 3 D. The Federal Uniformed and Overseas Citizens

Absentee Voting Act and the Washington State

The Washington Redistricting Process is Final... _. 6 —— nkehueeéucouewEttt ¢<

SUMMARY OF ARGUMENT...........s.—s—a.:—si—_édis. 7 Ill. REFUSING TO COUNT PERSONS SERVING THE

nenene UNITED STATES (TEMPORARILY) OVERSEAS

ee ee 9 VIOLATES THE CONSTITUTIONAL RIGHTS OF

THOSE CITIZENS AND THEIR STATES ......

1. THE 1990 CENSUS AND APPORTIONMENT OF A. Those ing Their H ight to Be

REPRESENTATIVES IS FINAL, AND IS NOT NOW — a eer

1s Representation of all Their Citizens in Congress

Constitutionally Committed to Congress. Once

Reported to Congress it is Final ...... 9 Ra nc Dn Re A

B. The Court Improperly Ordered the House to

Change Each State's Certificate .......... 11

1. The APA Provides No Cause of Action

Against the President or Clerk ......_._. 1]

2. The Clerk Lacks Statutory Authority ‘o

Revoke or Modify Certificates o

Enutiement One On oes Gude 66 ee ll

TABLE OF AUTHORITIES

Cases Page

Armstrong v. Bush,

924 F.2d 282 (D.C. Cir. 1991) ................ 11

Baker v. Carr,

LS 14, 15

Baldridge v. Shapiro,

TE 10

Board of Pardons v. Allen,

402 U.S. 369 (1967) ....................... 11

Bolling v. Sharpe,

oor Dam. Se Gee ..................... 8, 25

Borough of Bethel Park v. Stans,

449 F.2d S75 Grd Cir. 1971) ................. 16

Buckley v. Valeo,

424 U.S. 1 (1976) DEG du é cede cetedsts 8, 25, 27

Carey v. Klutznick,

a Le Sk so gs bars Haba ak 27

Carrington v. Rash,

i 27

City of Newark v. Blumenthal,

457 F. Supp. 30(D.D.C. 1978) ............._.. 19

Cuomo v.

674 F. Supp. 1089 (S.D.N.Y. Ns tie aia ei a 27

Federation for American Immigration Reform (FAIR) y.

486 F. Supp. 564 (D.D.C. 1980), appeal dismissed 447 U.S.

ee tr ns 26, 28, 29

Hampton & Co. v. United States

276 U.S. 394(1928) ................._.. 20, 21

Japan Whaling Ass'n v. American Cetacean Soc'y,

478 U.S. 221 (1986) ............... Pa lnwh ood 15

Karcher v.

462 U.S. 725 (1983) en ee 19

Kramer v. Union Free Sch. Dist

eee 26, 27

TABLE OF AUTHORITIES (Continued)

Mistretia v. United States,

coc ccceaaun 21

801 F.2d 445 (D.C. Cir. 1986), cert. denied, 480 U.S. 911

DMEM eUGE bb oece sls ccecccccece 10

New York v. U.S. Dep't of Commerce,

EE 6

New York City Bd. of Estimate v. Morris

To Seas occ ccccccccceces 30

Nixon v. Administrator of Gen. Servs.,

ccc ecceene 21

Perrin v. United States, ,

Te on sw ccc cebccoccionn 12

Reynolds v. Sims,

EE 26, 30

Tucker v. U.S. Dep't of Commerce,

No. 91-2051 (7th Cir. Mar. 16, 1992) _.... 9, 15, 25, 26

U.S. Dep't of Commerce v. Montana,

No. 91-860 (U.S. Mar. 31, 1992) .... 2, 4,9, 10, 18, 20

United States v. Nixon

418 U.S. 683 (1974) Dtethdntehaneevedeanne 21

United States v. Turkente,

452 U.S. 576 A womg OE a ene e 12

Washington v. Davis

426 U.S. 229 (1945) eal og oe 25

Weinberger v. Romero-Barcelo,

ee ‘ec

Wesberry v. Sanders,

a 3, 28

Young v. Klutznick,

497 F. Supp. 1318 (E.D. Mich. 1980), rev'd on other grounds

aR a a a I 29

TABLE OF AUTHORITIES (Continued)

Page

Constitutions, Statutes and Regulations

tin 6 604 60 ioé6 okcandust. 8, 29

SES Kd» 0.0.00 6 00:b00%s 000200 cen 29

DRED 5.0 0.05 cs0esevecencaduls 1, 10

DEY 6 «once neceecce ss. 7,9, 12, 14

PON, bn csvcccccccccce, 5, 7, 11, 12, 14

5 U.S.C. § 7OMaXIMA).................... 7, 11

ED ooo cc ccc cc ccccecce 4, 7,9, 16

EN 6 6 occccodtcceerecadic, 7

42 U.S.C. §§ 1973ff-197371-6 6. 8, 17, 23

55 Stat. 761 TMCS 060s 0604n0bk. nade 13

EE Sos 005s ccccccccncceensc, 13

U.S. Const. amend. XIV,§2 ............. 28

U.S. Const. art.1,§2,cl.3................. 749, 25

Wash. Const. art. Il, §43,amend.74....00202~2~O~O~C«w™ 6

Wash. Const. ant. VI,§4............... 8, 22-24

Wash. Rev. Code § 29.01.140 i ak 23, 24

Wash. Rev. Code § 44.05.100 hin. it mn einen 6

Other Authorities

1 Max Farrand, The Records of the Federal Convention

0 ees 8, 28, 29

87 Cong. Rec. 8053(1941)........ 13

87 Cong. Rec. 8078-83(1941)..... 13

136 Cong. Rec. H 4195-4197... 4

Cong. Globe, 39th Cong., 1st Sess. Saas 28

Department of Defense Military Pay and Allowances

CERT NES chess oan coccnee..... 22

H.R. Rep. No 99-765, 99th Cong., 2d Sess (1986) . 23, 24

vii

TABLE OF AUTHORITIES (Continued)

Page

Note, Constitutional Issues of the Federal Census,

94 Harv. L. Rev. 841 (1981)................ 26, 29

Pour’s Federal and State Constitution (1878) ......... 28

Uniformed and Overseas Citizens Absentee Voting:

Hearings on HR 4393 Before the Subcomm. on Elections

of the Committee on House Administration, U.S. House

of Representatives, 99th Cong., 2d Sess. (1986) ....... 16

Zuckerman, A Consideration of the History and Present

Status of Section 2 of the Fourteenth Amendment,

30 Fordham L. Rev. 93 (1961).................. 28

No. 91-1502

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1991

BARBARA HACKMAN FRANKLIN, et al.,

Appellants,

Vv.

COMMONWEALTH OF MASSACHUSETTS, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

BRIEF OF STATE OF WASHINGTON

AS AMICUS IN SUPPORT OF APPELLANTS

INTERESTS OF AMICUS WASHINGTON

The State of Washington participates herein to protect the

nine United States House of Representatives seats to which it is

“entitled” (2 U.S.C. § 2a) under the Certificate of Entitlement

issued by the Clerk of the House following the 1990 Census.’

The order below transfers one of these seats to Massachusetts

and also reduces by one the number of Washington's presidential

electors.

Washington also acts to Protect the rights of 922,819

United States citizens who, because they were serving their

country Overseas on the day of the census, have been ordered

treated as nullities for constitutional apportionment purposes by

the district court.

Finally, Washington acts to protect the rights of its citizens

whose share of representation in the House of Representatives

would be diluted (reduced by 11%) by the lower court’s order

reducing the Washington delegation from nine to eight.

A. Washington’s Interest in Retaining Nine House Seats

and Declaring the Process Fina]

"The 1990 census revealed that the population of certain

States . . . had increased more rapidly than the national average

. . . [which] caused 8 states to gain . . . additional seats in the

House of Representatives and 13 states to lose an equal number."

U. S. Dep't of Commerce vy. Montana, No. 91-860, slip. Op. at

2 (U.S. Mar. 31, 1992). Washington, a rapidly gtowing state,

gained one seat (to nine) and Massachusetts, a state of relative

decline, lost one seat (to ten). Montana, slip op. at 2, nn.4, 5.

Massachusetts (belatedly) filed this action in an attempt to

reverse or delay the effects of these population changes on its

congressional delegation.

Because Washington’s ninth seat was the last Seat allocated

under the 1990 apportionment (number 435), two of the legal

challenges filed by states losing seats have sought the seat gained

by Washington.?

In this action the United States District Court for the

' Washington's Certificate dated January 16, 1991 is appended as

Appendix A.

* First considered by this Court was United States Department of

Commerce v. Montana, No. 91-860 (U.S. Mar. 31, 1992).

District of Massachusetts issued an order excluding from the

census for apportionment purposes, the approximately 922,819

federal employees serving overseas on the census date, and

directing the Clerk to issue new Certificates of Entitlement with

the effect of taking a seat from Washington, and giving it to

Massachusetts. Washington has an interest in reversing that

decision, in order to retain its nine House seats (and the

presidential electors based on House and Senate delegations).

Washington also advocates the strong public interest in finality

of the apportionment process.

In Washington, as in a majority of states,’ redistricting into

congressional, and intertwined states districts, is now final (as

required by the Washington Constitution) and its Redistricting

Commission is no longer in operation.

Preparations for the 1992 congressional and other elections

are already in progress, both by the State and by the various

candidates. Candidates have declared and filed public disclosure

and financial reporting statements.

The Massachusetts court order would have the probable

effect of making it impossible for Washington to conduct its

elections in accordance with its laws.‘

B. Washington’s Interests Include the Constitutional Rights

of Affected Citizens Serving Overseas

Of arguably greater importance, Washington argues herein

on behalf of the over 922,819 citizens declared nullities for

apportionment by the decision below. Approximately 21,249 of

those citizens are Washingtonians by selection of Washington as

a “home of record" when entering government service.

However, the decision below denied representation to all citizens

who happened to be serving their country in an overseas

* Only nine states are still redistricting. See App. B.

* Massachusetts has previously suggested (Brief Opposing stay, p.

22) Washington should conduct elections from old districts. Those

distncts would be unconstitutional under Wesberry v. Sanders, 376

U.S. 1 (1964), standards.

location—often at the order of the President as Commander-in-

Chief—on the day of the census.

Washington speaks for the rights of its citizens so situated

and those of all states. Neither the United States nor

Massachusetts even purports to do so. The court below

disregarded the rights of all such citizens in its rush to add back

a Massachusetts seat. It will be demonstrated, infra at p. 24,

that denying representation under such circumstances is

unconstitutional as a violation of the equal protection concepts of

the Fifth Amendment. Totally refusing to count these citizens

has the effect in this case, of reducing the Washington delegation

to eight, thus reducing the “share of a representative" for both

the military personnel in question and for other citizens of the

State.

STATEMENT OF THE CASE

The Census of the United States was conducted as of April

1, 1990. 13 U.S.C. § 141(a). Nearly nine months before (July

31, 1989), however, all states had been advised of the final

decision of Commerce that overseas federal employees would be

counted in the 1990 Census. J.A. 511-512.

Neither Massachusetts nor any representative complained

or moved to legally challenge this decision. Indeed, the House,

on June 26, 1990, passed on consent HR 4903 to prohibit census

exclusion of military personnel stationed outside the United

States and to direct “home of record" be used in counting.

There was no recorded dissent from Massachusetts’

representatives. 136 Cong. Rec. H 4195-4197.

It seems likely that such a bill would have passed, were it

not for the decision of the Secretary of Commerce to order the

counting of the overseas citizens and the later determination to

utilize the “home of record.” J.A. 919-920. The conclusion,

and its reasoning were communicated to Congress and the public

on July 23, August 7, and September 11, 1990. J.A. 925, 931-

32.

* "Share" is one measure of fairness in apportionment. Montana,

slip op. at 11-2, defined at n.28.

On December 26, 1990, the census results, including

overseas federal employees were reported to the President as

required by the statute. On January 3, 1991 (the first day of the

102nd Congress), the President transmitted to Congress a report

showing the results of the 1990 Census, and the number of

representatives to which each state was entitled.

On January 16, 1991, the Clerk of the House of

Representatives transmitted to each state a Certificate of

Entitlement to that number of representatives as required by 2

U.S.C. § 2a(b). Massachusetts is entitled to ten, and

Washington to nine under their respective Certificates.

(Washington’s certificate is attached as Appendix A.)

Nearly two years after the decision to include citizens

temporarily overseas, and four months after receiving its

Certificate, Massachusetts filed this action on May 12, 1991.

Washington moved to participate as an amicus, specifically

noting its refusal to waive sovereign immunity to be sued and

that it was an indispensable party in any suit to take a

Washington House seat.

Washington later argued amicus that it was unconstitutional

to deny representation of citizens whom the United States had

ordered temporarily out of country, describing the Massachusetts

theory as “one man no vote.”

On summary judgment, the Massachusetts court required

the results of the census be recomputed by the Executive to

exclude government employees temporarily overseas on April 1,

1990. These are mostly military, though thirty agencies have

such employees. The Executive (President) was ordered by the

Massachusetts court to submit a new statement to Congress,

showing the number of representatives to which each state would

be entitled if these counts are excluded. The court also ordered

the Clerk of the House to "send the executive of each state a

recertification of the number of Representatives to which such

State is entitled. . .."* J.$. App. 95a.

The parties below, which did not include Washington, had

* This relief, ordering the Clerk to issue new Certificates, was not

requested in Massachusetts’ Complaint. Washington is an indispensable

party in any suit to change its certificate.

stipulated that absent the inclusion of those federal employees,

Washington would be entitled to only eight representatives.

While Washington does not concede this is true, it is the

potential loss of one of its House seats that prompts participation

here.

These orders of the court below were stayed by this Court

on March 27, 1992.

The Washington Redistricting Process is Final

The Certificate of Entitlement to nine House seats was

transmitted to the Washington Redistricting Commission. Wash.

Const. art. Il, § 43, amend. 74.

The Commission redistricted Washington into the nine

United States House districts (and intertwined state legislative

districts). The Redistricting Plan was completed and filed on

January 1, 1992. It is now final. Wash. Rev. Code § 44.05.100

(1983). The Washington Legislature, like the Redistricting

Commission, is now out of session.

Washington's elections system, including its participation

in the nominating process for United States President, has

proceeded. Candidates for federal, state and local offices have

commenced organizing, raising and spending money (and filing

Public Disclosure Reports). The caucuses of the major political

parties were held on March 3, 1992. These are the first level of

selection of delegates to the national conventions.

Washington has proceeded in good faith following the

Statement by the President and issuance of its Certificate of

Entitlement by the Clerk of the United States House, both

confirming entitlement to nine congressional seats (and districts).

Other states have acted similarly. As of the filing of this

Brief over thirty-four states had completed redistricting b=sed on

the Census results and Certificates of Entitlement. Seven more

” Washington is willing to intervene on remand to contest the

factual basis for the total exclusion, and establish correct populations.

Note too an “adjustment” to the Census as sought in New York v.

United Stated Department of Commerce, 713 F. Supp. 48 (1989) (trial

pending) would add over 100,000 to Washington including this case.

(with a single House seat) have done legislative redistricting.

They have relied on the Census results all have assumed were

final. See App. B.

SUMMARY OF ARGUMENT

I. A. The Constitution gives Congress express

authority to direct the conduct of the decennial census. U.S.

Const. art. I, § 2, cl. 3. Congress has delegated this authority

to Commerce which is to conduct the Census “in such form and

content as he may determine... .." 13 U.S.C. § 141(a). The

Census is statutorily required to be reported to the President on

a specific date (this decade, Dec. 26, 1990). 13 U.S.C. §141(b).

The President is statutorily required to report to Congress

the Census and the apportionment of House seats to states on the

first day of Congress (or within one week). 2 U.S.C. § 2a(a).

This was done, as required, on January 3, 1991.

B. Thereafter, the apportionment, including issuance

of Certificates of Entitlement to each state, is exclusively a

matter for Congress. The district courts had no authority to

interfere, especially where, as here, the Congress (House Clerk)

properly issued Certificates to each state on January 16, 1991 as

required by statute. 2 U.S.C. § 2a(b).

The court order below, directing new Certificates be issued,

is also improper because predicated on the Administrative

Procedure Act (Act). That Act provides cause of action neither

against the President, nor against Congress which is specifically

exempted. 5 U.S.C. § 701(a)(1)(A).

The statute under which the House Clerk acted does not

authorize any change in Certificates once issued. 2 U.S.C.

2a(b). Legislative history confirms this conclusion. Only on

one occasion have Certificates been changed once issued, and

that required an explicit act of Congress.

Il. Here, the Secretary of Commerce’ decision to count

overseas military, and to use “home of record” is clearly within

the delegated discretion, and indeed is required. Congress both

encouraged and directed these decisions (and probably would

have required it by law, had the Secretary not so acted).

The court below either overlooked, or disregarded

important parts of the Administrative Record which supported

(mandated) the Secretary's decision. This Record importantly

included a study by Congress itself (Congressional Research

Service), analyses by staff at the census and Secretary level, and

direct Congressional input.

appropriate, and that “home of record” provided the most

accurate data and conforms closely to the usual residence of the

Census.

Congress’ and the states’ treatment of these same

individuals for voting parallels the methodology chosen by

Commerce; these persons generally vote at the same place as

their “home of record" The Washington State Constitution

protects the right to do so. Wash. Const. art VI, § 4. The

federal Overseas Citizens Absentee Voting Act provides similar

protections. 42 U.S.C. §§ 1973ff-1973ff-6.

Ill. The court order that such persons be treated as

nullities for apportionment purposes, because of their serving the

country overseas, violates Constitutional Rights of these citizens

and of the states. The equal protection component of the Fifth

Amendment prohibits the federal government from such

discrimination. Bolling v. Sharpe, 347 U.S. 497 (1954); Buckley

v. Valeo, 424 U.S. 1 (1976). Strict scrutiny is the standard to

apply, and Massachusetts has shown no compelling reason for

this discrimination.

The result also violates the right of the states to have their

citizens counted. Article 1, Section, 2 Clause 3 was written to

count for apportionment all “persons,” expressly to be inclusive

of all inhabitants. 1 Max Farrand, The Records of the Federal

Convention of 1787 35 (1911).

The first Census Act spoke of counting “inhabitants.” |

Stat. 101 (1790). As Madison had noted in 1787, when

discussing qualifications for House membership, inhabitants

“would not exclude persons absent occasionally for a

considerable time on public or private business.” 2 Jd. at 217.

ARGUMENT

I. The 1990 Census and Apportionment of Representatives

is Final, and is Not Now Subject to Review

A. The Manner of Conduct of the Census is

Constitutionally Committed to Congress. Once

Reported to Congress it is Final

Article I, Section 2, Clause 3 directs that the “enumeration

shall be made . . . in such manner as [Congress] shall by law

direct." The Census was conducted by Commerce under the

broad delegation of authority in 13 U.S.C. § 141(a). The

Statement of the President showing the census results and the

resulting apportionment was reported to Congress on January 3,

1991 as required by 2 U.S.C. § 2a(a).

Once the President’s Statement is received in Congress, any

review of, or change in the census or apportionment is

exclusively committed by Constitution and statute to Congress.

A federal court has no jurisdiction or authority to order

Congress to change its own apportionment—where, as here, there

is alleged no constitutional violation.’ This distinguishes

Massachusetts’ case from the challenge to apportionment in the

recent Montana case. U.S. Dep't of Commerce v. Montana, No.

91-860, slip op. at 2 (U.S. Mar. 31, 1992). There, a

constitutional violation was alleged which called for this Court's

interpretation of the constitutional provisions applicable. The

Montana claim involved “determining that specific congressional

* "The Constitution squarely places sole responsibility for this

fundamental function of government (apportionment of House seats) on

the Congress." Tucker v. U.S. Dep't of Commerce, No. 91-2051, slip

op. at 16 (Ripple, J., concurring) (7th Cir. Mar. 16, 1992).

* Massachusetts’ claim below that the inclusion of the overseas

mulitary violated the Constitution was rejected by the district court.

“Thus we do not find persuasive plaintiff's argument that the

Secretary's overseas census decision was unconstitutional on its face.”

J.S. App. 81a. Massachusetts did not appeal that ruling.

action does not violate the Constitution” and thus “turns on the

Proper interpretation of the relevant constitutional provisions.”

Montana, slip op. at 19.

The statutory scheme here, with explicit deadlines contained

in 2 U.S.C. § 2a requires the conclusion that the census and

apportionment are intended to be final upon the expiration of

those dates. Massachusetts inexcusably waited far too long to

bring its challenge. It will be further indicated below why that

challenge must fail.

There are many policy reasons supporting Congress’

decision to make the process final at a specified date. There can

be no doubt of Congress’ constitutional responsibility for

conducting the census and plenary authority to make it final.

Baldridge v. Shapiro, 455 U.S. 345 (1982).

This finality in congressional apportionment is of great

public interest because it would be harmful and disruptive to

permit continuous challenges to the highest representative

political authority. Both federal and state courts recognize tha’

there should be finality in political processes, especialiy

procedures relating to elections, e.g. Morgan v. United States,

801 F.2d 445, 450 (D.C. Cir. 1986), cert. denied, 480 U.S. 911

(1987) (“The pressing legislative demands of contemporary

government have if anything increased the need for quick,

decisive resolution of election controversies”).

Appendix B shows the number of states that have concluded

redistricting (or have one seat (41)). Changes to the Census or

apportionment results could impact all states, though Washington

is most directly affected herein.

To take a seat from Washington now would be especially

disruptive, requiring redistricting efforts to start again. In the

interest of preserving the integrity and finality of the

apportionment process, the Clerk should not now be ordered to

revoke or modify any state’s Certificate. These public

consequences justify reversing the district court’s order.

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).

It is also important to consider that other challenges could

follow Massachusetts’; as other states find elements of the census

methodology that, if changed, could enure to their benefit in a

number sufficient to reclaim a “lost” House seat. Such problems

are foreseeable, and justify Congress in setting deadlines, after

which, apportionment is irrevocable.

B. The Court Improperly Ordered the House to

Change Each State’s Certificate

1. The APA Provides No Cause of Action

Against the President or Clerk

The court below relied upon the Administrative Procedure

Act (APA), as the sole cause of action to support the relief

below.” However, the APA does not apply to the Clerk of the

United States House, nor to the President—both of whom were

ordered to perform affirmative acts as integral parts of the relief

below.

Neither of these defendants is an “agency” within the

meaning of the APA. Armstrong v. Bush, 924 F.2d 282 (D.C.

Cir. 1991), reached the specific conclusion the President was not

an “agency.” The Clerk of the House is also not subject to APA

review. Under 5 U.S.C. 701, “Agency . . . does not include

(A) the Congress . . ." 5 U.S.C. § 701(a)(1)(A).

The APA does not support the relief granted against the

President or House Clerk.

2. The Clerk Lacks Statutory Authority to

Revoke or Modify Certificates of Entitlement

2 U.S.C. § 2a(b) provides that the Clerk shall issue a

Certificate within fifteen days after receiving apportionment

figures from the President. It does not authorize the revocation

or modification of a Certificate once it has been issued.

The word “shall” in statutory parlance is mandatory

language. Board of Pardons v. Allen, 482 U.S. 369, 374

(1987).

The opinion concluded: “we . . . ALLOW plaintiffs’ motion for

summary judgment as to the overseas census claim grounded upon a

violation of the Administrative Procedure Act." J.S. App. 84a. As

noted, (infra, n.9) the constitutional claim was denied.

The statute even goes on to specify who “shall” perform

this duty if the Clerk does not:

In case of a vacancy in the office of the Clerk, or of

his absence or inability to discharge this duty, then

such duty shall devolve upon the Sergeant at Arms of

the House of Representatives; and in case of

vacancies in the offices of both the Clerk and the

Sergeant at Arms, or the absence or inability of both

to act, such duty shall devolve upon the Doorkeeper

of the House of Representatives.

2 U.S.C. § 2a(d).

Where statutory language is unambiguous, in the absence

of a clearly expressed legislative intent to the contrary, that

language must ordinarily be regarded as conclusive. United

States v. Turkette, 452 U.S. 576, 580 (1981). A fundamental

canon of statutory construction is that, unless otherwise defined,

words will be interpreted as taking their ordinary, contemporary,

common meaning. Perrin v. United States, 444 U.S. 37, 42

(1979).

The plain language of 2 U.S.C. §§ 2a(a) and 2a(b) indicates

that the Clerk must issue Certificates in accordance with the

President's Statement and has no authority to revoke or modify

an issued Certificate. The legislative history of the statute

confirms that the Clerk cannot, without explicit statutory

authority, revoke or modify the Certificate.

Each state is “entitled” to the number of seats shown in the

President's Statement and indicated in its respective Certificate

until the taking effect of a subsequent reapportionment. 2

U.S.C. §§ 2a(a), 2a(b). To interpret the statutes to allow the

Certificate to be changed would render this “entitlement”

language meaningless. It is in the nature of a vested right, upon

which all states are entitled to rely in redrawing their

congressional districts.

The vesting of each state’s entitlement probably occurs at

the time the President's Statement is filed with the Congress;

surely it vests when the Certificate is actually issued and

received.

a ee E-e,

PP te Ae ene hs ae es ae

ee a

The Cierk has no authority to revoke or modify a

Certificate and may not be ordered to perform an act he has no

authority to perform.

3. Legislative History Confirms That the

Certificates of Entitlement are Irrevocable

(Absent Congressional Action)

There is only one historical instance in which a state was

denied a seat to which it was entitled according to a Certificate.

An explicit act of Congress was required to take away the seat.

In 1941, Congress debated amendments to 2 U.S.C. § 2.

The President had already reported the 1940 census results to the

Congress and certificates had been issued. The result was

explained on the Senate floor:

[T}he statute made reapportionment by so-called

major fractions final and conclusive and binding upon

all concerned. The case was closed; the incident was

finished; and the Clerk of the House so notified the

States.

87 Cong. Rec. 8053 (1941) (Statement of Senator Vandenberg).

The method of apportionment was changed, and “equal

proportions" accepted. However, a specific act of Congress was

required to change the States’ entitlement under already-issued

certificates. The debate confirmed the general proposition of our

argument here: unless Congress specifically acts, the

Certificates are final. 87 Cong. Rec. 8078-83 (1941). Congress

voted to specifically require new Certificates. Section 2b of the

Act of November 15, 1941 provided as follows:

(b) If before the enactment of this Act a certificate has

been sent to the executive of any State . . . as in force

before the enactment of this Act, the Clerk of the

House of Representatives shall, within fifteen calendar

days after the date of enactment of this Act, send a

new certificate to such executive stating the number

of Representatives to which State is entitled under this

section.

Pub. L. No. 87-291; 55 Stat. 761, 762 (1941) (originally

codified as 2 U.S.C. § 2b).

Congress’ action in 1941, and the legislative history

surrounding it, confirms that a Certificate of Entitlement cannot

be revoked or modified by the Clerk unless and until Congress

enacts legislation to that effect. A court may not order the Clerk

to perform beyond his statutory authority.

C. Whether to Change Congress’ Certificates of

Entitlement Apportioning Representatives Among

the Several States is a Political Question

Massachusetts filed this action ultimately seeking an extra

House seat. First, the President was ordered to make a new

report to Congress providing eleven House seats for

Massachusetts. Then the House Clerk was ordered to issue (all)

new Certificates of Entitlement with Massachusetts’ and

Washington’s changed.

Each of these steps involves reversing actions of the

separate branches of government, which had long become final.

The case clearly involves nonjusticiable political question(s).

This Court has said that:

In determining whether a question falls within [the

political question] category, the appropriateness under

our system of government of attributing finality to the

action of the political departments and also the lack of

satisfactory criteria for a judicial determination are

dominant considerations.

The nonjusticiability of a political question is

primarily a function of the separation of powers.

Baker v. Carr, 369 U.S. 186, 210 (1962) (citation omitted).

The Executive's final action occurred when the President

certified the final census results of the 1990 Census, including

states’ apportionment, to the Congress on January 3, 1991 (the

first day of the 102nd Congress). 2 U.S.C. § 2a(a).

The Legislative Branch has also taken its final action. The

Clerk of the House sent each state its Certificate of Entitlement

on January 16, 1991. 2 U.S.C. § 2a(b). On their face, and by

statute, these Certificates are final until the next decennial census

and apportionment. In affirming dismissal of another challenge

to the 1990 Census and apportionment, one judge noted:

[I}n my view, to the extent that the plaintiffs seek a

redetermination of the Congress’ apportionment of the

seats of the House of Representatives, this suit

presents a nonjusticiable political question. See Baker

v. Carr, 369 U.S. 186 (1962); Coleman v. Miller,

307 U.S. 433 (1939). The Constitution squarely

places sole responsibility for this fundamental function

of government on the Congress.

Tucker v. U.S. Dep't of Commerce, No. 91-2051, slip op. at 16

(7th Cir. Mar. 16, 1992) (Ripple, C.J. concurring).

It should be also noted that there are “policy choices and

value determinations" tied to conduct of the census which are

“constitutionally committed for resolution to the halls of

Congress .. .." Japan Whaling Ass'n v. American Cetacean

Soc’y, 478 U.S. 221, 230 (1986). These decisions were, in turn,

delegated to Commerce. Such issues do not lend themselves to

judicial resolution.

A last observation of Baker is also relevant to the finality

argument. “The political question doctrine, [is] a tool for

maintenance of government order, [and] will not be so applied

as to promote only disorder." Baker, 369 U.S. at 215.

Most states already redistricted, creating congressional

districts intertwined with legislative and local districts, raising

questions of when states may rely on finality of congressional

and executive process. In Washington and other states, a change

at this late date would disrupt the political process, probably

making it impossible to conduct 1992 elections in accordance

with statutory deadlines. If not dictating abstention, these

considerations should support deferring to other branches.

Il. The Secretary of Commerce Acted Within and in

Accordance with Congress’ Delegation of Census

Authority

Congress has vested broad discretion in the Secretary of

Commerce to conduct the census “in such form and content as

he may determine... ." 13 U.S.C. § 141(a). The Secretary

acted within this discretion in deciding to include overseas

federal employees, in the count for apportionment purposes. A

predecessor made the same decision in 1970." The court

below necessarily rejected the argument that such inclusion

violates the Census Act concluding the Secretary has such

discretion. J.S. App. 81a, n.31.

Still, the court concluded that the Secretary’s decision was

an abuse of that discretion and issued a court order denying

representation to those serving their country overseas. That

decision not only offends traditional notions of representation, ”

but contradicts the intent of Congress. Congress’ only explicit

expressions of opinion or oversight directed the Secretary to

implement such inclusion” (see supra p. 4 HR 4903 and infra

'' See Borough of Bethel Park v. Stans, 449 F.2d 575, 581 (3rd

Cir. 1971) (moting inclusion of overseas federal employees “was

prompted by a recommendation of the House Subcommittee on Census

and Statistics which demonstrated concern over the large number of

Federal Government employees serving overseas at the time of the

1970 Census. ”)

Contrast this with the counting of illegal aliens and convicts.

Infra at 24. One Representative (Roberts) spoke of “a very serious

problem . . . overseas among the military and Federal civil service .

. . Of feeling disenfranchised, of being second class citizens, not having

access to the system in which they really want to participate.”

Uniformed and Overseas Citizens Absentee Voting: Hearings on HR

4393 Before the Subcomm. on Elections of the Committee on House

Administration, U.S. House of Representatives, 99th Cong., 2d Sess.

39, 68 (1986).

" As noted in n.11, a similar decision in 1970 was prompted, in

part, by similar direction from Congress.

pp. 18-19). When Congress provided for protection of the

voting rights of these overseas federal employees (42 U.S.C. §§

1973ff-1973ff-6), Congress adopted a procedure similar to that

followed by the Census Bureau in counting these same persons.

The Census Bureau did not act arbitrarily in allowing voters to

be counted for apportionment purposes on a similar basis.

A. The Lower Court Ignored the Record Basis for the

Decision to Use "Home of Record"

The lower court agreed the Secretary possesses broad

discretion under both the Constitution and relevant statutes. J.S.

App. 79a. The court concluded that the Secretary’s decision was

arbitrary and capricious solely because the Department of

Defense (DOD) ultimately did not conduct a census of its

employees concurrently with the originally scheduled national

census. Jd., 75a.

The lower court’s consideration of the Administrative

Record stopped at DOD’s December, 1989 decision not to

undertake a separate census count. A.R. 787. This is the last

record cite in the decision.

Given a fair reading this entire Record documents that the

Secretary, and his staff, carefully considered whether or not to

include overseas personnel and what data would be used. See,

generally, A.R. 788-949, J.A. 811-12, 826-31, 834-35, 872-82,

919-21, 924-25, 931-32, 943-45.

A brief summary of the major elements of the Secretary's

reasoned consideration of this question is appropriate here. Each

piece of correspondence, memo, or report obviously documents

more lengthy study and consideration:

Extensive correspondence between Commerce and

Congress considered whether, and how, to count

those overseas. A.R. 830-33, 925-27, 931-47; J.A.

811-12, 830-31, 925, 931-32, 943-45.

Staff memoranda analyzed these subjects:

(a) counting overseas military comparing “home of

record” vs. “last six months residence.” J.A. 826-

829. (6) H.R. 4903 which required use of home of

record data. A.R. 862. (c) the proposed use of home

of record data in 1990 census. J.A. 920-921.

Thirty-five page Congressional Research Service

Report (Huckabee, The 1990 Census: Including

Foreign-Based Military and Civilian Personnel in the

State Counts (CRS Study)) dated June 20, 1990

analyzed three alternative data sources. A.R. 872-

907; J.A. 872-82. These are (1) home of record;

(2) legal residence~six months duration; and (3) last

duty station. The home of record is recommended as

the preferred reliable data source.’

Department staff recommendation (and approvals)

articulated reasons to use home of record data: "We

believe that the new “home of record’ data

supplemented with additional information DOD plans

to collect will satisfy our criterion that the best quality

data be used for the 1990 census.” J.A. 919.

Staff memorandum advised the Secretary that the

technical staff of the Census Bureau “believes that the

Home of Record comes closest to the concept of the

usual residence among the three data sources that

DoD has available.” J.A. 924.

Finally, DOD agreed to assure that home of record

data would satisfy Commerce’ criterion for best

* Not all of the A.R. is included in the J.S., ¢.g., 25 pages of

appendices to this study were omitted.

'® This study alone is probably sufficient record for the Secretary's

decision—given the source was the same source of his delegated

authority. See Montana, slip. op. at 8-13 (describing a National

‘Academy of Sciences Report on apportionment methodology as one

appropriate decisional basis.

quality data as “supplemented and improved by

methodologies devised by technical experts who

originally designed the overseas enumeration.” J.A.

919-21, 925, 931.

The court below erred by failing to give deference to the

Secretary’s reconsideration and decision as documented in this

record, in accordance with normal APA judicial review

standards.

The legitimacy of our representative institutions depends

upon the premise that all persons are treated as politically equal.

The central census issue is how to provide the best possible

numbers. The guidelines determined in advance by the

Secretary, in cooperation with DOD, created the necessary

environment for a decision free of the influence of any individual

Or group who may have a political, financial or other stake in the

outcome. Not surprisingly, there was little (no) dissent from the

Secretary's decision until this action.

Conversely, total exclusion of people who are entitled to be

counted is the result of the decision below. Massachusetts (and

the court below) ignores the most accurate numbers available and

replaces these data with a zero. This is a misapplication of the

principles of Karcher v. Daggett, 462 U.S. 725 (1983). A

proper application of the constitutional principles to the overseas

personnel counting issue is to give weight to the most accurate

numbers possible under current methodology. The goal of

providing equal representation in Congress is not served by

denying the best available figures any validity whatsoever. Ciry

of Newark v. Blumenthal, 457 F. Supp. 30, 34 (D.D.C.

1978)."° There is no dispute that there are numbers of

American citizens temporarily overseas who are entitled to vote

in the next election. Massachusetts would say—do not count any

of these for representational purposes. This is not a rational

solution to the problem, nor does it comport with the considered

solution reached by the Executive Branch (with the prodding of

the Legislative Branch which is constitutionally authorized to

'® Cited with approval for this proposition in Karcher v. Daggett,

462 U.S. at 738.

“direct” the census).

B. Congress Encouraged and Directed the Secretary’s

Decision to Include Federal Overseas Personnel by

"Home of Record"

This Court observed, in its recent decision, U.S. Dep't of

Commerce v. Montana, No. 91-860, slip. op. (U.S. Mar. 31,

1992):

Our previous apportionment cases concerned States’

decisions creating legislative districts; today we

review the actions of Congress. Respect for a

coordinate branch of Government raises special

concerns not present in our prior cases, but those

concerns relate to the merits of the controversy rather

than to our power to resolve it.

Montana, slip. op. at 17.

The lower court did not have the benefit of this admonition.

Rather, the court below obliquely referred to this issue by

concluding that the Secretary’s reliance upon bipartisan

expressions of congressional concern was not an “improper

factor.” J.S. App. 73a-7S5a. This is a far cry from judicial

deference to considered decisions reached by separate but

coordinate branches of government which resulted in the use of

home of record data for apportionment in the 1990 Census.

As the Administrative Record demonstrates, the Secretary

considered alternative data sources for use in counting overseas

personne! and ultimately concluded that it would be consistent

with his statutory responsibilities to use home of record data

(with certain adjustments) for counting overseas personnel for the

1990 Census.

The record clearly shows a series of reasoned responses by

the Executive Branch to criticism, comment and

recommendations from the Legislative Branch exercising its

oversight responsibilities. Such expressions of legislative will

and of executive responses are entitled to deference by the

Judicial Branch. As Mr. Chief Justice Taft observed in Hampton

& Co. v. United States, 276 U.S. 394, (1928):

This is not to say that the three branches are not co-

ordinate parts of one government and that each in the

field of its duties may not invoke the action of the

two other branches insofar as the action invoked shall

not be an assumption of the constitutional field of

action of another branch. In determining what it may

do in seeking assistance from another branch, the

extent and character of that assistance must be fixed

necessities of the governmental co-ordination.

Id. at 406.

Nixon v. Administrator of Gen. Servs., 433 U.S. 425

(1977) stated that the Judicial Branch should give deference to

decisions made by other branches. /d. at 443, citing United

States v. Nixon, 418 U.S. 683, 703, 711-12 (1974). Accord

Mistretta v. United States, 488 U.S. 361, 380-84 (1989).

The court below erred by failing to give deference to the

reality-based interaction between Congress in the exercise of its

oversight powers and the Secretary’s exercise of executive

powers. The three branches of government must work together

with reciprocity. Nixon, 433 U.S. at 442-43. While this Court

has ultimate jurisdiction to decide constitutional questions, each

branch of government has the right to determine its powers and

that determination is “due great respect.” Jd. The lower court's

application of APA standards to the use of home of record data

does not show “great respect” on the part of the Judicial Branch

for a jointly arrived at decision of the Legislative Branch and the

Executive Branch. This is especially true here, where the

subject of census and apportionment is explicit'v entrusted to

Congress by the Constitution.

C. The Court Misunderstood "Home of Record"

The Commerce Department determined that the most

accurate method to allocate overseas serving persons was data

showing “home of record." The district court claimed that the

data was inaccurate because “home of record” could be chosen

for tax reasons. J.S. App. 76-77a. This is simply untrue.

Home of record is defined as, “the place recorded as the home

of the individual when commissioned, appointed, enlisted,

inducted, or ordered into the relevant tour of active duty.” Joins

Federal Travel Regulations, ch. 56, App. A."”

Home of record is not used by the Defense Department for

the designation of the state to which an employee pays taxes.

“Legal residence” is used for taxes. Department of Defense

Military Pay and Allowances Manual, § 70105 (defining “legal

residence,” which is to be used for tax purposes).

The Census Bureau specifically rejected using “legal

residence” as the primary method of determining a home state

for precisely that reason. J.A. at 921.

Home of record represents not the whimsical election of a

home state suggested by the district court, but rather the

“reflect{ion of] the person's own concept of his or her home

State,” at the last time this was a matter of choice. Huckabee,

CRS Study. J.A. at 879.

That home of record best reflects the state the service

member thought of as home before entering the military is made

clear by miliary form (DD 1966). The instructions tell

applicants to provide the address “declared by you to be your

permanent or actual home at time of enlistment. Do not enter a

temporary address.” Armed Forces of the U.S., Form DD 1966

(emphasis added).

D. The Federal Uniformed and Overseas Citizens

Absentee Voting Act and the Washington State

Constitution

In Washington, the right to vote of these persons is

constitutionally protected—one does not lose residence for voting

purposes by absence in the civil or military service: “[N]o

person shall be deemed to have. . . lost a residence by reason

' The Washington Constitution (Article VI, Section 4) provides

that this home (“residence”) 1s retained for voting purposes through the

penod of federal service. Infra, pp. 22-23.

of his absence, while in the civil or military service of the state

or of the United States . . ..". Wash. Const. art. VI, § 4; Wash.

Rev. Code § 29.01.140 (1971).

In 1986, Congress enacted the Uniformed and Overseas

Citizens Absentee Voting Act (Voting Act). 42 U.S.C. §§

1973ff-1973ff-4. The Voting Act protects the right of overseas

citizens, including both military and civilian, to vote in federal

elections. It calls for absentee voting by postcard, with the

normal state registration requirements waived. 42 U.S.C. §§

1973ff-1973ff-1."

Congress has specified a procedure for determining in what

state the citizen may vote, which bears a striking similarity to

that used by Census in determining where to count the citizen for

apportionment purposes.

The definition of “absent uniformed services voter"

specifically includes the requirement that the voter “is absent

from the place of residence where the member is otherwise

qualified to vote.” 42 U.S.C. § 1973ff-6(1)(A). The absent

uniformed services voter is allocated to vote in the place where

he or she would otherwise be qualified to vote. As noted above,

this conforms with Washington law.

The Census Bureau used an appropriate similar method for

allocating overseas citizens to the states. The underlying general

principle in locating individuals for census purposes is “usual

place of residence.” The task facing the Census Bureau in

allocating Overseas citizens to the various states is how to best

implement that concept from the available data.

thoroughly reasonable conclusion drawn was that home of

record, the last permanent residence before entering the military,

is the best approximation of usual place of residence. See

generally, Huckabee, CRS Study; J.A. at 872, 882. Home of

record data is intended to reflect the self-identification of the

individual at the last point in time at which his/her residence is

“ Congress has reported that as of 1986, over six million voters

took part in the predecessor to this program. H.R. Rep. No. 99-765,

99th Cong., 2d Sess. 8 (1986), reprinted in 1986 U.S.C.C.A.N. 2009,

2012.

a matter of choice.

Not only is this concept of self identification basic to the

census as a whole, but resembles the determination of Congress

(and the states) with regard to voting.

Among the purposes of Congress in enacting the Voting

Act was the policy that "U.S. citizens overseas may continue to

vote for Federal office even if they have no current address in

the United States.” H.R. Rep. No. 99-765, 99th Cong., 2d

Sess. 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 2009, 2010-

11. The lack of a current address in the United States therefore

did not trouble Congress in the context of allowing overseas

citizens to vote in the fifty states. As noted above, Washington

similarly protects those rights. Wash. Const. art. VI, § 4;

Wash. Rev. Code § 29.01.140 (1971). The court below,

however, found it “arbitrary and capricious” to afford citizens

the same rights when it came to determining their representation

in Congress.

The home of record statistics used by the Census Bureau

reflect the citizen’s chosen state of residence prior to his location

being determined by order of the Executive (Commander-in-

Chief). For voting purposes, similarly, Congress allowed those

overseas to vote in the last state in which they had voluntarily

chosen to become qualified.

This similarity of choices supports the conclusion the

decisions of the Secretary is not arbitrary or capricious. ”

Ill. Refusing to Count Persons Serving the United States

(Temporarily) Overseas Violates the Constitutional

Rights of Those Citizens and Their States

A. Those Serving Their Country Have a Right to Be

Counted

The court’s order violates constitutional rights of those

U.S. citizens under the equal protection component of the Fifth

'* It bas been previously noted that Congress’ record expressions

of opinion on the “overseas count” and “home of record” issues were

in favor of both (e.g., H.R. 4903, passed House June 26, 1990).

Amendment. The court ordered the Census Bureau to treat

residents of the United States abroad on one day, April 1, 1990,

differently than those located within the United States, for

purposes of determining congressional representation. The

remedy is draconian; treat them as nullities for apportionment

purposes. The effect lasts ten years.

The court’s conclusion is based on the belief that there is

no reasonably accurate method for connecting persons

temporarily overseas to their state. However, it has already been

shown that a reasonable method exists for determining the state

of overseas military and federal employees and their dependents

and that this home of record is comparable to the federal and

state determination of voting place. Jnfra, pp. 17-19. Any

census procedure that excludes persons who can be enumerated

discriminates on its face because those excluded are thus denied

representation in the House of Representatives, as provided by

Article I, Section 2 of the Constitution.”

The equal protection component of the Fifth Amendment

prohibits the federal government from denying equal protection

of the laws. See Bolling v. Sharpe, 347 U.S. 497 (1954).

Census procedures are implemented by the Census Bureau under

the authority delegated it by Congress, which the court below

conceded has plenary power over census procedures. J.S. App.

74a, citing U.S. Const. art. 1, § 2, cl. 3.

The Fifth Amendment's equal protection guarantees

therefore apply to discriminatory census procedures. Analysis

of equal protection under the Fifth Amendment is the same as

under the Fourteenth Amendment. Buckley v. Valeo, 424 U.S.

1, 93 (1976).

The equal protection component of the Fifth Amendment is

intended to prohibit intentional discrimination by the federal

government. Washington v. Davis, 426 U.S. 229, 239 (1945).

The facially discriminatory practice at issue in this case is

distinguishable from the effect of undercounting at issue in

Tucker v. United States Department of Commerce, No. 91-2051

® The effect here of discrimination 1s to diminish the congressional

representation not only of the excluded overseas military, but of their

state and its other citizens.

(7th Cir. Mar. 16, 1992). The Tucker court held that the

undercount claim reflected only an “unintended consequence of

measures adopted for reasons unrelated to any intention to

discriminate." Tucker, slip. op. at 5. Disparate impact alone is

not a sufficient basis for a finding of unconstitutional

discrimination. Tucker, slip. op. at 5 (citing Washington, 426

U.S. at 239-45).

Here, however, the measures are intended to treat one

group differently from all other persons enumerated by excluding

them from apportionment. This exclusion deprives that one

group—overseas federal employees and their dependents—of their

constitutional right to fair representation in Congress.

Disfranchisement from representation may not be

accomplished short of constitutional amendment. Women,

children, prisoners, and even aliens have always been counted

for purposes of apportionment, even while not entitled to vote.

See Note, Constitutionai Issues of the Federal Census, 94 Harv.

L. Rev. 841, 847-8 (1981). The original language of Article I,

Section 2 excluded from representation only “Indians not taxed"

and, by implication, two-fifths of all persons who were slaves.

Since adoption of the Fourteenth Amendment following the Civil

War, only "Indians not taxed" have been excluded. All other

persons are counted and allocated to the states for apportionment

purposes. Even illegal aliens are counted and represented.

Federation for American Immigration Reform (FAIR) v.

Klutznick, 486 F. Supp. 564 (D.D.C. 1980), appeal dismissed

447 U.S. 916 (1980). To treat those overseas on one day

differently, when they are capable of being adequately

enumerated and counted back to the states, infringes on both a

State’s right to equal representation based on population, and on

each individual's right to fair representation in Congress. It is

a particularly egregious violation where the overseas status, and

duration, is ordered by the United States (the President, as

Commander-in-Chief).

Statutes that dilute the effectiveness of some citizens’ votes

have been held subject to strict scrutiny under an equal

protection analysis. Kramer v. Union Free Sch. Dist., 395 U.S.

621, 626 (1969); Reynolds v. Sims, 377 U.S. 533, 561 (1964).

No less rigid standard applies here. Fair representation is

guaranteed to the states and their citizens by the Constitution;

thus any infringement on that representation must withstand strict

scrutiny. See Buckley, 424 U.S. at 94.

Such infringement is constitutional only if it is necessary to

promote a compelling governmental interest. Kramer, 395 U.S.

at 627. While there may be no viable method for finding,

counting and allocating to the states all United States citizens

traveling abroad on census day, those who are in the military or

employees of the federal government, as well as their

dependents, can be counted adequately.” Those who can be

counted, must be counted.

Massachusetts bears the burden of showing that the practice

of not counting federal and military employee and their

dependents is necessary to achieve a compelling governmental

interest.

Moreover, each individual deprived of representation under

Massachusetts’ scheme has a right to full representation in

Congress through their hume states. “"[T]he uniform of our

county . . . [must not] be the badge of disfranchisement for the

man or woman who wears it.’” Carrington v. Rash, 380 U.S.

89, 97 (1965) (quoting Governor Arnall’s message to the

Georgia General Assembly, January 3, 1944). The same may be

said of those serving their government as civilians and of

dependents.

B. The Constitution Guarantees the States’

Representation of all Their Citizens in Congress

” The data relied upon in 1990 is not arbitrary and capricious, nor

inherently unreliable as noted above. Infra, pp. 17-19, There has

never been a perfect census count, Carey v. Klutznick, 653 F.2d 732,

735 (1981), and perfection is not required. Here, the agency did not

merely repeat its 1970 exercise for obtaining the overseas enumeration,

but rather, acted to identify and correct deficiencies in the data

available to them, “achiev(ing] the most accurate population count

possible in view of the Census Bureau's resources, and the inherent

difficulties of the task.“ Cuomo v. Baldridge, 674 F. Supp. 1089,

1093-94 (S.D.N.Y. (1987).

The right to equal representation in Congress, based on

population ("persons"), is guaranteed to the states by the

Constitution.

Use of the word “persons” in Article 1, Section 2, Clause

3 was vigorously debated during the Constitutional Convention

of 1787. Some members sought to limit the apportionment

counts to voters, citizens, or landholders. The broader term

“persons,” which included those not considered part of the body

politic, such as women, children, and prisoners. Proponents of

the broad term “persons” prevailed. See 1 Farrand, The Records

of the Federal Convention of 1787, 35 ("inhabitants"), 486, 580

(1911); Pour’s Federal and State Constitution (1878). Following

the Civil War, the three-fifths clause was removed by the

Fourteenth Amendment. U.S. Const. amend. XIV, § 2. The

issue of whom to count was again the subject of considerable,

and similar, debate. See Cong. Globe, 39th Cong., Ist Sess.

(1866). Once again, however, the drafters based representation

of the states upon overall population of each state, rather than on

a narrower basis, such as number of landholders or voters.

Cong. Globe, 39th Cong., 1st Sess. (1866); see also Zuckerman,

A Consideration of the History and Present Status of Section 2

of the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961).

The history of Article 1, Section 2 demonstrates that

nothing is more fundamental to our form of government than this

principle of equal representation. The Court should give

substantial weight to the legislative history of constitution

provisions. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (“it

is in the light of [its] history that we must construe Art. I, § 2 of

the Constitution. . . .").

An individual's right to fair representation in Congress is

both distinct from, and broader than, the right to vote. Both

Congress and the courts have recognized that the “non-voting

classes" have a vital interest in the conduct of government.

FAIR, 486 F. Supp. at 576; Cong. Globe, 39th Cong., Ist Sess.

141 (1866) (remarks of Rep. Blaine). That vital interest includes

the right to be counted in a state’s population for congressional

apportionment purposes. FAJR, 486 F. Supp. at 576-77 (holding

the constitutional requirement of counting “whole number of

persons” for apportionment purposes includes illegal aliens).

Under the express language of both Article 1, Section 2, Clause

3 and the Fourteenth Amendment, it has been held that the

Census Bureau is required to count all persons and apportion

them to the states. Young v. Klutznick, 497 F. Supp. 1318, 1332

(E.D. Mich. 1980), rev'd on other grounds by 652 F.2d 617

(1981).

Early census procedures reflected the practice of

enumerating persons temporarily away from their usual

residence. The first census, conducted in 1790, required

marshals to “cause the number of inhabitants within their

respective districts to be taken." 1 Stat. 101 (1790) ("An Act

providing for the enumerations of the Inhabitants of the United

States.") The count included as inhabitants “every person

occasionally absent at the time of the enumeration, as belonging

to that place in which he usually resides in the United States.”

1 Stat. 103 (1790). The 1790 census implemented the Framers’

understanding that apportionment was to be based on total

population.

Madison had stated in 1787, in discussing qualifications for

House membership, “both [’resident’ and ‘inhabitant’] were

vague, but the latter least so in common acceptance, and would

not exclude persons absent occasionally for a considerable time

on public or private business." 2 Farrand at 217 (emphasis

added).

The constitutional requirement is that all persons be counted

in the census for purposes of apportionment. FAIR, 486 F.

Supp. at 576. Children, prisoners, the mentally incompetent and

aliens (including illegal aliens) are counted for purposes of

apportionment, even though not entitled to vote. FAJR, 486 F.

Supp. at 576; see also Note, Constitutional Issues of the Federal

Census, 94 Harv. L. Rev. 841, 847-48, (1981).

To treat those serving abroad as less deserving of

representation than convicts or illegal aliens, when they are

capable of being adequately enumerated and counted back to the

States, infringes on both a state’s right to equal representation

based on population, as well as those individuals’ right to fair

representation in Congress.

Massachusetts argues that because these citizens were

excluded in 1980, they should be excluded again. However, this

Court has never been persuaded to deny equal protection for

reasons “based on exigencies of history or convenience.” New

York City Bd. of Estimate v. Morris, 489 U.S. 688, 703 n.10

(1989); Reynolds, 377 U.S. at 579-80. Enumeration

methodologies have so far improved in the last decade as to

obviate any argument that the practice is historically unsound.

The Census Bureau is readily capable of allocating overseas

federal and military personnel and dependents to the states for

apportionment purposes. Both Article 1, Section 2 and the Fifth

Amendment’s equal protection guarantees require no less.

CONCLUSION

The judgment of the district court should be reversed, the

finality of the 1990 Census and Apportionment be confirmed,

and judgment be entered affirming the decision of the Secretary

to count those serving the country overseas.

Respectfully submitted,

KENNETH O. EIKENBERRY

Attorney General

JAMES M. JOHNSON*

Sr. Assistant Atorney General

J. LAWRENCE CONIFF

JEFFREY T. EVEN

CAROLE A. RESSLER

Auorneys

Attorneys for Amicus Washington

*Counse!l of Record

Certificate of Entitlement

HOUSE OF REPRESENTATIVES

OFFICE OF THE CLERK

WASHINGTON, D.C.

I, Donnald K. Anderson, Clerk of the House of

Representatives of the United States, Hereby Certify,

Pursuant to the Provisions of Title 2, United States

Code, Section 2a (b), That the State of

WASHINGTON

Shall be Entitled, in the One Hundred Third

Congress and in Each Congress Thereafter Until a

Subsequent Reapportionment Shall Take Effect

Under Applicable Statute, to

NINE REPRESENTATIVES

in the House of Representatives of the Congress of

the United States.

APPENDIX A

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.