# Appendix — Wisconsin v. City of New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1

## Text

5 Court,
>) FILED
/ ~ P4161 4 APR 3 - 195
“OPPICE “OF TNE CLERK
In The

Supreme Court of the United States
October Term, 1994

—_=

STATE OF WISCONSIN,

Petitioner,
Vv.
CITY OF NEW YORK, ET AL..,

Respondents.

———— + a

On Petition for Writ of Certiorari
To the United States Court of A, peals
for the Second Circuit

re |

APPENDIX TO
PETITION FOR WRIT OF CERTIORARI

ee . — =

PETER C. ANDERSON
Assistant Attorney General
Counsel of Record

JAMES E. DOYLE

Attorney General

Wisconsin Department of Justice
Post Office Box 7857

Madison, Wisconsin 53707-7857
(608) 266-9595

Attorneys for Petitioner
March 31, 1995

i
APPENDIX
TABLE OF CONTENTS

Document Page

DECISION, United States Court

of Appeals for the Second Circuit,

dated August 8, 1994

(City of New York v. U.S. Dept. of Commerce,

34 F.3d 1114 (2nd Cir. 1994)) ... 2... cece A-1

MEMORANDUM AND ORDER, United States

District Court for the Eastern District

of New York, dated April 13, 1993

(City of New York v. U.S. Dept. of Commerce,

822 F. Supp. 906 (E.D.N.Y. 1993)) ........... A-41

MEMORANDUM AND ORDER, United States

District Court for the Eastern District

of New York, dated June 7, 1990

(City of New York v. U.S. Dept. of Commerce,

739 F. Supp. 761 (E.D.N.Y. 1990)) ........... A-96

MEMORANDUM AND ORDER, United States

District Court for the Eastern District

of New York, dated April 21, 1989

(City of New York v. U.S. Dept. of Commerce,

713 F. Supp. 48 (E.D.N.Y. 1989)) ........... A-121

NOTICE OF FINAL DECISION, U.S. Department

of Commerce, Office of the Secretary, Decision

on Whether a Statistical Adjustment of the 1990
Census of Population and Housing Should Be

Made for Coverage Deficiencies Resulting in

an Overcount or Undercount of the Population,

dated July 15, 1991

(58 Fed. Reg. 33582 (July 22, 1991))......... A-135

ii
APPENDIX
TABLE OF CONTENTS - Continued

Document Page
ORDER, United States Court

of Appeals for the Second Circuit,

dated January 4, 1995 .................... A-416
ORDER, United States Court

of Appeals for the Second Circuit,

dated December 12, 1994.................. A-419
US. Const. ot. LOB GS oc ck eee A-422
US. Const. emneed. Vc. 555.04 cece. ee A-422
U.S. Const. amend. XIV, §§ land2.......... A-422
U.S. Const. amend. XV,§1................ A-423
S USL. § Salad and OP oi i ie A-424
13 U.S.C. § 141(a),(b),(c),( and (g) .......... A-425
USC. OS . oo citcnds ieee A-427

App. 1

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 813---August Term, 1993
(Argued: January 5, 1994 Decided: August 8, 1994)

Docket No. 93-6183

CITY OF NEW YORK; STATE OF NEW YORK; CITY OF
LOS ANGELES; CITY OF CHICAGO; CITY OF
HOUSTON; DADE COUNTY, FLORIDA; UNITED
STATES CONFERENCE OF MAYORS; NATIONAL
LEAGUE OF CITIES; LEAGUE OF UNITED LATIN
AMERICAN CITIZENS; 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 GCNZALES;
ATHALIE RANGE; JERRY ALAN WOOD; CAROLYN
SUE LOPEZ; CITY OF ATLANTA, GEORGIA;
MAYNARD JACKSON, Individually, and as the Mayor of
the City of Atlanta; FLORIDA HOUSE OF
REPRESENTATIVES; FLORIDA STATE CONFERENCE;
MIGUEL A. DE GRANDY; WILLYE DENNIS; MARIO
DIAZ-BALART; DR. CHARLES EVANS; RODOLFO
GARCIA, JR.; BOLLOWY L. "BO" JOHNSON; ALFRED
J. LAWSON, JR.; WILLIS LOGAN, JR.; JOHNNIE
MCMILLAN; ALZO J. REDDICK; PETER RUDY
WALLACE; T.K. WETHERELL,

Plaintiffs-Appellants,
STATE OF TEXAS; CITY OF PHOENIX, ARIZONA;

STATE OF NEW JERSEY; STATE OF FLORIDA; CITY
OF CLEVELAND, OHIO; CITY OF DENVER,

App. 2

ow

COLORADO; CITY OF INGLEWOOD, CALIFORNIA:
CITY OF NEW ORLEANS, LOUISIANA; CITY OF
OAKLAND, CALIFORNIA; CITY OF PASADENA,
CALIFORNIA: CITY OF PHILADELPHIA,
PENNSYLVANIA; CITY OF SAN ANTONIO, TEXAS;
CITY OF SAN FRANCISCO, CALIFORNIA; BROWARD
COUNTY, FLORIDA; STATE OF ARIZONA; CITY OF
BALTIMORE, MARYLAND; CITY OF BOSTON,
MASSACHUSETTS: CITY OF LONG BEACH,
CALIFORNIA; CITY OF SAN JOSE, CALIFORNIA; LOS
ANGELES COUNTY, CALIFORNIA: SAN BERNADINO
COUNTY, CALIFORNIA; DISTRICT OF COLUMBIA;
NAVAJO NATION; STATE OF NEW MEXICO; CITY OF
TUCSON, ARIZONA; COUNCIL OF GREAT CITY
SCHOOLS,

Intervenors-Plaintiffs-
Appellants,

PEOPLE OF THE STATE OF CALIFORNIA EX REL
DANIEL E. LUNGREN, ATTORNEY GENERAL,

Plaintiff,
COUNTY OF HUDSON, NEW JERSEY,
Intervenor-Plaintiff,

ec ,-

_ UNITED STATES DEPARTMENT OF COMMERCE;
RONALD H. BROWN, ESQ. 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 Census;
BARBARA EVERITT BRYANT, As Director of Bureau of
Census; WILLIAM J. CLINTON, As President of the
United States; DONALD K. AN DERSON , As Clerk of the
United States House of Representatives; MICHAEL

App. 3

ESPY, As Secretary of Agriculture; DONNA E.
SHALALA, As Secretary of Health & Human Services;
HENRY CISNEROS, As Secretary of Housing & Urban
Development; ROBERT B. REICH, As Secretary of Labor;
FREDERICO PENA, As Secretary of Transportation;
RICHARD W. RILEY, As Secretary of Education,

Defendants-Appellees,
STATE OF WISCONSIN; STATE OF OKLAHOMA,

Intervenors-Defendants-
Appellees.

Before: TIMBERS, KEARSE, and LEVAL, Circuit
Judges.

KEARSE, Circuit Judge:

Plaintiffs City of New York et al. appeal from a
judgment entered in the United States District Court for
the Eastern District of New York following a bench trial
before Joseph M. McLaughlin, Judge, dismissing their
action to compel defendants United States Department of
Commerce ("DOC") et al. (collectively the “federal
defendants") to make statistically-based adjustments to
the 1990 United States census in order to rectify
acknowledged undercounting of certain minority groups,

“Honorable Joseph M. McLaughlin, of the United
States Court of Appeals for the Second Circuit, sitting by
designation. When the case was initiated, Judge
McLaughlin was a Direct Judge in the Eastern District;
he became a Circuit Judge in 1990.

App. 4

including African-Americans, Hispanics, Asian-Pacific
Islanders, and Native Americans. The district court,
applying a standard of review set out in the
Administrative Procedure Act, 5 U.S.C. § 706 (1988)
("APA"), see 713 F.Supp. 48, 54 (1989), dismissed the
complaint on the ground that the decision of the Secretary
of Commerce (the "Secretary") not to adjust the census
figures was not arbitrary or capricious. See 822 F.Supp.
906 (1993). On appeal, plaintiffs contend that, because
the constitutional right to equal apportionment of votes
depends on having the most accurate census practicable,
the district court should not have applied an
arbitrary-and-capricious standard of review but should
have reviewed the Secretary's decision de novo. In
opposition, the federal defendants argue that the
Secretary's decision not to make a statistical adjustment
to the census was entirely immune from judicial review
or, at the most, was reviewable only for reasonableness,
and that the district court correctly found that the
decision not to adjust was not unreasonable. The States
of Wisconsin and Oklahoma, as intervenors-defendants-

appellees, argue that the district court’s decision should
be affirmed on the ground that the Census Act, 13 U.S.C.
§ 131 et seg. (1988), prohibits any statistical adjustment
of a census that is used for congressional apportionment.

For the reasons stated below, we conclude that the
district court properly held that the Secretary's decision
is reviewable and that the Census Act does not prohibit a
statistical adjustment of the initial census enumeration;
but we conclude that the court should not have reviewed
the Secretary’s decision under the APA’s
arbitrary-and-capricious standard of review. We vacate
and remand for the court to determine whether the
Secretary's decision not to make an adjustment in order
to improve the overall count and reduce the
disproportionate undercounting of minority groups was
essential to the achievement of a legitimate governmental
interest.

App. 5

I. BACKGROUND

The background of this litigation focusing on the
1990 census has been painstakingly explored by the
district court in several published opinions, see City of
New York v. United States Department of Commerce, 713
F.Supp. 48 (E.D.N.Y.1989) ("NYC v. DOC I"), City of New
York v. United States Department of Commerce, 739
F.Supp. 761 (E.D.N.Y.1990) ("NYC v. DOC II"), City of
New York v. United States Department of Commerce, 822
F.Supp. 906 (E.D.N.Y.1993) ("NYC v. DOC HII"),
familiarity with which is assumed. The following
description is taken largely from NYC v. DOC III, which
includes the district court’s findings after trial.

A. The Constitutional Requirement of a Decennial Census

The Constitution of the United States requires a
decennial census of the population. See Art. I, § 2, cl. 3
(an “actual Enumeration shall be made ... within every ...
Term of ten Years"). The Constitution provides that
members of the House of Representatives shall be
apportioned among the states "according to their
respective Numbers." Art. I, § 2, cl. 3; see also 14th
Amend. § 2 ("Representatives shall be apportioned among
the several States according to their respective numbers,
counting the whole number of persons in each State....").
The apportionment of Representatives among the states
also determines the allocation of votes to the states for the
election of the President. 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...."’

In addition to these federal constitutional purposes,
the census data are used by the states to draw boundaries
for congressional and state legislative districts and are
used by local governments to establish districts for other
representative bodies such as county legislatures, city

App. 6

councils, and boards of supervisors. Census data are also
used to allocate federal and state funding and services.
For purposes other than apportionment, Congress has
directed that, in addition to the decennial census, there be
a mid-decade census. See 13 U.S.C. § 141(d).

The Constitution provides that the decennial
census shall be conducted "in such Manner as [Congress]
shall by Law direct." Art. I, § 2, cl. 3. The agency
designated by Congress to conduct the census is the
Bureau of the Census ("Bureau" or "Census Bureau"), an
agency within DOC. See 13 U.S.C. § 2 (1988).

B. The Census Bureau’s Planned Statistical Adjustment

Each decennial census has inevitably contained
errors, resulting from, inter alia, the failures of millions
of United States residents to return census forms or be
counted by other means, leading to omissions, and the
multiple counting of some residents and the listing of
nonexistent persons, leading to overcounting. The census
thus provides at best only an estimate of the nation’s true
population. Further, the census has been found to
undercount members of ethnic and racial minority groups
more severely than members of other demographic groups.
This phenomenon, known as the "differential undercount,"
has skewed every census since at least 1940. The Census
Bureau started measuring the differential undercount in
that year.

In preparation for the 1980 census, the Bureau
hoped that a combination of outreach efforts and attempts
to focus energies on improving the count in areas such as
inner cities, where the undercount was particularly great,
would lead to a reduction of both the overall undercount
and the differential undercount. When those efforts failed,
the Bureau decided to create a program for the 1990
census that would address the problem though other
techniques. By 1984, the Bureau had developed an

App. 7

internal research plan to aid it in deciding whether or not
the 1990 census should be statistically adjusted in order
to reduce the differential undercount. The Bureau created
an Undercount Steering Committee and an Undercount
Research Staff to consider the undercount problem and
sought advice from outside experts and organizations such
as the American Statistical Association and the National
Academy of Science. The Bureau also consulted state and
local governments, planned an extensive advertising
campaign, designed a more ethnically inclusive census
questionnaire, and developed an automated geographical
control system to help assure accurate and timely maps
and geographic files for the 1990 census.

Based on recommendations of the Undercount
Steering Committee, the Undercount Research Staff, and
other experts, the Bureau determined that the best tool
for adjusting the census would be a "post-enumeration
survey" ("PES"). Using a "dual system elimination," also
known as "capture/recapture," the original enumeration
would be followed by a second measurement, the PES,
which would attempt to measure the rate at which people
were omitted or erroneously enumerated by the census, in
order to determine the net undercount rate. The net
undercount rate would indicate the appropriate amount
by which the census should be adjusted.

Although the Bureau had used a PES in a number
of ways since 1950, it had never used dual system
elimination to make a statistical adjustment to a
decennial census. The Bureau worked throughout most
of the 1980s to hone the PES into an effective tool for
census adjustment. For example, an adjustment problem
can occur when individuals who have different
probabilities of being counted are placed in a single
category. This problem was to be reduced by the use of
"poststratification,” a technique in which highly specific
categories are created and all individuals with a similar
likelihood of being counted are placed in a specific

App. 8

category. These categories, or "poststrata," were defined
by age, sex, race, Hispanic origin, housing tenure, type of
environment (e.g., urban or rural), and geographic region.
This categorization resulted in a total of 1,392 exhaustive
and mutually-exclusive poststrata. In addition,

between the results produced by PES sampling and the
results that would be obtained if one were able to survey

C. DOC’s 1987 Decision, NYC v. DOC I, and the 1989
Stipulation

By May 1987, the Census Bureau had determined
that an adjustment of the 1990 census using a
postenumeration survey would be feasible and that the
Bureau would undertake to conduct a full-fledged PES in
order to be able to correct the census. High-ranking DOC
officials, however, promptly decided against any
adjustment in the 1990 census, though they instructed
Bureau officials not to disclose that decision publicly. On
October 30, 1987, DOC publicly announced its decision
that the 1990 census would not be statistically adjusted.

The present action was commenced in 1988 by
plaintiffs including the cities of New York, Los Angeles,
and Chicago, the States of New York and California, Dade

Association for the Advancement of Colored People, and
numerous individuals. The original plaintiffs were
eventually joined by intervening plaintiffs that included
more than a dozen other cities, the States of Texas, New
Jersey, Florida, Arizona, New Mexico, and the Navajo
Nation. Plaintiffs contended that the Secretary's
announced decision not to adjust the 1990 census violated
their rights under, inter alia, the Fifth Amendment.

App. 9

Complaining principally of an anticipated loss of
representation and an anticipated deprivation of funds to
be distributed under federal programs based on census
figures, plaintiffs challenged the methodology to be used
in the 1990 census and sought to enjoin the census unless
it would be subject to adjustment.

The federal defendants moved to dismiss the
complaint, contending that the Secretary’s decision was
unreviewable. The district court denied that motion,
holding that plaintiffs had standing to challenge the
census on constitutional grounds. NYC v. DOC I, 713
F.Supp. at 52. The court also ruled that it would review
the Secretary's decision against adjustment under the
arbitrary-and-capricious standard set out in the APA. Id.
at 54.

In the wake of these decisions, the parties entered
into a stipulation dated July 17, 1989 (the "1989
Stipulation"), pursuant to which plaintiffs would
withdraw their motion to enjoin the census and DOC
would reconsider, in accordance with specified
ground-rules, its 1987 decision not to adjust the 1990
census. The principal premises of the 1989 Stipulation
were that

the Secretary of Commerce is vested by law with
supervisory authority over the Bureau of the
Census and the conduct of the Decennial Census
and does not by anything said herein intend to
relinquish any authority or decision-making power
thereby duly vested in him, including without
limitation the decision whether or not to adjust the
1990 Decennial Census;

that

the Secretary of Commerce intends that the 1990
Decennial Census shall be conducted in conformity

App. 10

with all applicable statutory and constitutional
requirements ... and in a manner designed to
achieve the most accurate population counts
practicable;

and that

the parties hereto at this time believe that the
Census, including a post-enumeration survey and
other adjustment-related operations, can and will
be conducted in a manner that will result in the
most accurate counts practicable, and no party has
any basis at this time to believe that the Census,
including the PES and adjustment-related
operations, cannot and will not be conducted in
such g-manner.

(1989 Stipulation "Whereas" clauses.)

The agreement called for the vacatur of the
Secretary's 1987 decision against adjustment of the 1990

census (1989 Stipulation ¥ 2), and required the federal
defendants to

undertake to conduct a [PES] of not fewer than
150,000 households ... and such other procedures
or tests as they deem appropriate, as part of the
1990 Decennial Census in a manner calculated to
ensure the possibility of using the PES, not solely
for evaluation purposes, but to produce corrected
counts usable for congressional and legislative
reapportionment, redistricting, and all other
purposes for which the [Bureau] publishes data,

(id. { 3). The Stipulation also required a de novo
reconsideration by the then-new Secretary Robert
Mosbacher, “undertaken with an open mind, without any
prejudgment, and consistent with the procedures set
forth" in the 1989 Stipulation, on "the question of whether

App. 11

or not to carry out a statistical adjustment of the 1990
Decennial Census." (/d. ¥ 2.)

The 1989 Stipulation required that the Secretary's
assessment of any proposed adjustment be in accordance
with a set of published guidelines (the "Guidelines"), to be
promptly developed by DOC, “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." (1989 Stipulation ¥ 4.) DOC was also required
to appoint and fund a Special Advisory Panel of statistical
and demographic experts ("Advisory Panel") to advise the
federal defendants with respect to, inter alia,

the application and achievement of the
[Gjuidelines, ... 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.

(1989 Stipulation ¥ 7.) If the Secretary eventually
decided against an adjustment to the census, his decision
was to be accompanied by a "detailed statement of its
grounds." (/d. 4 5.) The 1989 Stipulation was approved
by the district court in an order dated July 17, 1989
("1989 Order").

D. The DOC Guidelines and NYC v. DOC Il

Following the 1989 Stipulation, DOC appointed an
eight-member Advisory Panel, which consisted of four
persons selected from a list of seven candidates submitted
by plaintiffs, and four members chosen by DOC without
input from plaintiffs. DOC proposed and received
comments on a set of guidelines, and in March 1990, it
promulgated the following final Guidelines:

App. 12

1. The Census shall be considered the most
accurate count of the population of the United
States, at the national, state, and local level,
unless an adjusted count is shown to be more
accurate. The criteria for accuracy shall follow
accepted statistical practice and shall require the
highest level of professional judgment from the
[Bureau]. No statistical or inferential procedure
may be used as a substitute for the Census. Such
— may only be used as supplements to the
ensus.

2. The 1990 Census may be adjusted if the
adjusted counts are consistent and complete across
all jurisdictional levels: national, state, local, and
census block. The resulting counts must be of
sufficient quality and level of detail to be usable
for Congressional reapportionment and legislative
redistricting, and for all other purposes and at all
levels for which census counts are published.

3. The 1990 Census may be adjusted if the
estimates generated from the pre- specified
procedures that will lead to an adjustment decision
are shown to be more accurate than the census
enumeration. In particular, these estimates must
be shown to be robust to variations in reasonable
alternatives to the production procedures, and to
variations in the statistical models used to
generate the adjusted figures.

4. The decision whether or not to adjust the 1990
Census should take into account the effects such a
decision might have on future census efforts.

5. Any adjustment of the 1990 Census may not
violate the United States Constitution or Federal
statutes.

App. 13

6. There will be a determination whether to adjust
the 1990 Census when sufficient data are
available, and when analysis of the data is
complete enough to make such a determination. If
sufficient data and analysis of the data are not
available in time to publish adjusted counts by
July 15, 1991, a determination will be made not to
adjust the 1990 Census.

7. The decision whether or not to adjust the 1990
Census shall take into account the potential
disruption of the process of the orderly transfer of
political representation likely to be caused by
either course of action.

8. The ability to articulate clearly the basis and
implications of the decision whether or not to
adjust shall be a factor in the decision. The
general rationale for the decision will be clearly
stated. The technical documentation behind the
adjustment decision shall be in keeping with
professional standards of the statistical
community.

See NYC v. DOC II, 739 F.Supp. at 769 (emphasis
omitted).

In April 1990, plaintiffs challenged the Guidelines,
contending that, in violation of the 1989 Order, they were
impermissibly vague and were biased against any
adjustment to the 1990 census. Plaintiffs also
a declaratory judgment that a statistical adjustment to
the census would not violate the Constitution or any
federal statute. Defendants opposed, contending that any
decision by the Secretary on whether or not to adjust the
census presented a nonjusticiable political question, and
that, in any event, since the Secretary could still elect to
adjust the census, plaintiffs’ requests were premature.

App. 14

and while some of them "lend themselves easily to abuse,"
id. at 770, the Guidelines satisfied defendants’ obligations
under the 1989 Stipulation and were not unduly biased
against adjustment, see id.

E. The Implementation and Results of the 1990 Census

In eventually conducting the 1990 census, the
Census Bureau used a four-step process for the initial
enumeration. It followed with a PES as required by th
1989 Stipulation. ges aha

1. The Initial Enumeration

As a first step in the enumeration, the Bureau
compiled a list indicating every household in the nation to
which the Bureau would send questionnaires. Since the

accurate and comprehensive list was vital. In
constructing the list, the Bureau relied primarily on

complete and return the questionnaires to the local census
office on or before April 1, 1990 ("Census Day"). The
Bureau’s efforts to encourage participation in this phase

App. 15

included a general advertising campaign; campaigns
specifically directed at African-Americans, Hispanics,
Asian-Pacific Islanders, and Native Americans;
publication of specialized foreign-language brochures;
maintenance of a set of toll-free telephone numbers
providing answers in any of eight languages for persons
having questions regarding the questionnaire, including
one number from which callers could request
questionnaires written in Spanish. The Bureau employed
different outreach methods in areas where it was believed
that the normal procedure would be particularly
ineffective.

The return rate of questionneires in phase two was
only 63 percent. Step three was a follow-up phase. The
Bureau sent second mailings to households that had failed
to return forms; in census districts with particularly low
return rates, it remailed forms to all residents.

In the fourth phase, the Bureau engaged in a
further, largely in-person, “nonresponse follow-up" with
respect to households that still had not returned
questionnaires. Each nonresponding unit was assigned a
census enumerator who was to make as many as six
attempts to contact a household member to obtain the
information necessary to complete a census form. If these
efforts proved unproductive, the enumerator would try to
obtain basic information on the missing housing unit from
a neighbor, building manager, or other reliable source.
Once 95 percent of a district’s operations were completed,
enumerators made one final attempt to visit each
remaining nonresponding household to obtain as complete
an interview as possible. Then the Bureau implemented
"Coverage-Improvement Programs," which included (l)a
100-percent recheck of vacant or uninhabitable units, (2)
a "Were you counted?" advertising campaign to reach
people who thought they might have been missed by the
census, (3) a parolee and probationer check to set the
names and Census Day addresses of those people and add

App. 16

them to the census if they had not already been counted,
(4) a housing coverage check, in which the Bureau
recanvassed select blocks, and (5) a local government
review program, which provided local governments with
an opportunity to challenge census counts for their areas.
The Bureau's follow-up efforts in phase four added 5.4
million people, bringing the total ce int to 249,632,692.

2. The PES

The Bureau also implemented the PES. In
preparation, the Bureau had selected approximately 5,000
blocks to achieve what it deemed an appropriate sample
size for each of the 1,392 poststrata previously developed;
in February 1990, Bureau employees had visited each
sample block and listed all the housing units they found,
identifying approximately 170,000 households.

After the Census Day enumeration, Bureau
interviewers returned to each address in the sample
blocks to obtain information regarding the residency
status of those households on Census Day, and discovered
that those blocks contained approximately 400,000 people.
The Bureau then compared the data obtained in these
visits against the information collected in the original
enumeration of the sample blocks. From this comparison,
the Bureau estimated rates of omission and rates of
erroneous overcounting, and calculated a net rate for each
poststratum. The Bureau used these results to develop an
“adjustment factor" for each poststratum, i.e., a number
which, when multiplied by the population count as
indicated by the actual enumeration, would reflect the
variations found in the PES. ‘The 1,392 poststrata
resulted in 1,392 corresponding adjustment factors.

After the use of statistical “smoothing,” the Bureau
applied the smoothed adjustment factors to produce
adjusted counts down to the block level; these counts
were then aggregated to provide population estimates for

App. 17

cities, counties, states, and the nation. The Bureau then
implemented quality-control checks, including more than
twenty formal research projects which analyzed pctential
sources of error within the PES. The results of these
studies were then combined in a “total error model,"
which summarized the overall quality of the PES data.

3. The Results Shown 5y the Combined
Enumeration and PES

In the end, estimates drawn from the PES revealed
that the enumeration resulted in a national undercount of
2.1 percent, or approximately 5.3 million persons out of a
total population of approximately 255 million. As was
expected, the undercount was greater for members of
racial and ethnic minorities. Hispanics were
undercounted by 5.2 percent, Native Americans by 5.0
percent, African-Americans by 4.8 percent, and
Asian-Pacific Islanders by 3.1 _ percent. The
PES-calculated undercount for non-African-Americans was
1.7 percent, and for non-Hispanic Whites, 1.2 percent.
The impact of the differential undercount was naturally
more severe in those areas in which racial and ethnic
minorities were more concentrated. If the adjusted count
indicated by the PES were adopted, Arizona and
California would each gain a seat in the House of
Representatives; Wisconsin and Pennsylvania would each
lose one seat.

F. The Secretary’s 1991 Decision Not To Adjust

The Secretary decided not to adjust the 1990
census. The population count reported to the President
was thus 249,632,692 rather than 254,902,609 as
indicated by the enumeration supplemented by the PES.

The Secretary’s decision was issued on July 15,
1991, in a 178-page document entitled “Decision of the
Secretary of Commerce on Whether a Statistical

App. 18

Adjustment of the 1990 Census of Population and Housing
Should be Made for Coverage Deficiencies Resulting in an
Overcount or Undercount of the Population" ("Secretary's
1991 Decision" or Decision"). Stating that "Blacks
appear to have been undercounted in the 1990 census by
4.8%, Hispanics by 5.2%, Asian-Pacific Islanders by 3.1%,
and American Indians by 5.0%, while non-Blacks appear
to have been undercounted by 1.7%," the Secretary
acknowledged that the enumeration “was lower than
average among certain segments of our population," but
stated that "[i]f we change the counts by a computerized,
Statistical process, we abandon a two hundred year
tradition of how we actually count people." (Secretary’s
Decision at 1-1.)

Though acknowledging that the PES-indicated
adjustment would appear to make the aggregate national
count more accurate, reflecting more accurately both the
total population of the country and certain racial and
ethnic subpopulations of the country (id. at 2-1), the
Secretary was concerned that with respect to places
having populations of less than 100,000 there was no

prepared by the Census Bureau to date, although of
uncertain reliability, do support the Superior accuracy of
the census counts versus the adjusted figures when we

App. 19

consider distributive accuracy—or fairness-and use
reasonable estimates of the error variance of the
alternative" PES-based adjustment. (Jd. at 2-2.) The
Secretary defined "distributive accuracy” as "getting most
nearly correct the proportions of people in different areas."
(Id. at 2-1.) He declined to use the adjustments unless
not only numerical accuracy but also distributive accuracy
would be increased.

In sum, though conceding that the adjustments
would likely bring greater accuracy in the count at the
national level, the Secretary expressed the principal
concerns (1) that adjustment might not improve
distribution of Representatives among the states; (2) that
about half of his advisors believed accuracy at the state
and local levels would not be improved; and (3) that
uncertainty as to the methods of adjustment and
assumptions behind them might engender dispute about
the accuracy of the census and create the danger that an
adjustment might "be made on the basis of research
conclusions that may well be reversed in the next several
months" (Secretary's 1991 Decision at 1-8). In addition,
he expressed the concern that the adjustment process
might be subject to manipulation, since the effects of
different adjustment methods could be ascertainable in
advance; he stated, however, that he was confident that
there had been no such manipulation with respect to the
1990 PES.

The Secretary also noted the divergence of views
among his advisors. The Advisory Panel split evenly,
with the four members selected from plaintiffs’ list
recommending adjustment, and the four members chosen
solely by DOC recommending against it. The Undercount
Steering Committee voted seven to two in favor of
adjustment, and both the Under-Secretary of Commerce
for Economic Affairs and the Administrator of the
Economics and Statistics Administration voted against
adjustment. The Director of the Census Bureau, while

App. 20 App. 21

recognizing that “adjustment is an issue about which The court found that "for most purposes the PES
reasonable men and women and the best statisticians and resulted in a more accurate~or to be statistically
demographers can disagree" (Administrative Record, fashionable, a less inaccurate-count than the original
Defendants’ Exhibit 1, at 1118), recommended in favor of census." NYC v. DOC III, 822 F.Supp. at 916. Plaintiffs
adjustment. contended that the Secretary's finding of greater
distributive accuracy in the loss function analysis was
G. The Trial and NYC v. DOC III flawed because it was based solely on the larger number
of states where greater distributive accuracy was
Plaintiffs attacked the Secretary’s 1991 Decision as produced by the unadjusted count, without regard for the
a self-serving, post-hoc compilation of documents fact that adjustment produced greater distributive
assembled for the purpose of strengthening DOC’s accuracy for the larger percentage of the nation’s
position, and contended that the Secretary's decision was population; plaintiffs also challenged the rationality of
tainted by partisan political influence and violated the "the Secretary's rejection of numerous loss function
Constitution, the APA, and the 1989 Stipulation. After analyses performed by the Bureau supporting the superior
yet another unsuccessful motion by defendants to dismiss accuracy of the adjusted counts, and his putative concern
the action on nonjusticiabi ity grounds, and after a with the technical aspects of the PES." The court found
consolidation of the case with two others presenting that these challenges constituted "a compelling attack on
identical issues, City of Atlanta v. Mosbacher , 92-CV-1566, the Decision." NYC v. DOC III, 822 F.Supp. at 923
and Florida House of Representatives vy. Franklin, (italics omitted).
92-CV-2037, a 13-day bench trial was held The evidence |
consisted chiefly of the testimony of experts in However, adhering to its NYC v. DOC I ruling that
demographics and statistics, hundreds of exhibits, and the Secretary's refusal to adjust the census was to be
numerous deposition transcripts. reviewed under the APA's arbitrary-and-capricious
standard, the district court concluded that it could not
Following the trial, the district court entered its overturn the Secretary's decision. The court stated that
findings of fact and conclusions of law. Though it
confirmed its earlier ruling that it had the authority to [t]he conclusion that the Secretary must
review the Secretary’s decision not to adjust the census, provide the most accurate census practicable ...
because "Article I, § 2 requires the census to be as does not| } lead inexorably to the conclusion that a
accurate as practicable,” NYC v. DOC III, 822 F.Supp. at decision against adjustment is therefore
919 (quoting NYC v. DOC Ii, 739 F.Supp. at 767), and unconstitutional. In deciding whether the
though the court found substantial merit in plaintiffs’ | Secretary's decision was arbitrary and capricious
contentions that the PES-indicated adjustment in the in light of the requirement that the decision
1990 census was warranted, it rejected plaintiffs’ claims provide the most accurate census practicable, the
and dismissed the complaint on the basis of the standard Court must turn to the Secretary's consideration of
of review to be applied. See NYC p. DOC III, 822 F.Supp. the [G]uidelines, which help to illuminate the
906. meaning of both "accuracy" and "practicability."

App. 22

NYC v. DOC III, 822 F.Supp. at 920. The court reviewed
the Secretary’s evaluation of the PES-indicated
adjustments against each of the eight Guidelines, and
found that none of the Guidelines was applied in an
arbitrary or capricious manner. For example, the court
found that, in applying Guideline One, the Secretary's
"decision to focus on distributive, rather than numeric,
accuracy was consonant with the constitutional goal of
assuring the most accurate census practicable, given the
census’s function as a standard by which to distribute
political representation and economic benefits." Jd. at
924. The district court also found that the Secretary’s
skepticism concerning the methodology of adjustment was
not an inappropriate consideration. See id.

The court concluded that

[pllaintiffs have made a powerful case that
discretion would have been more wisely employed
in favor of adjustment. Indeed, were this Court
called upon to decide this issue de novo, I would
probably have ordered the adjustment. However, it
1s not within my province to make such
determinations. The question is whether the
Secretary's decision not to adjust is so beyond the
pale of reason as to be arbitrary or capricious.
That far I cannot go.

Id. at 928-29 (footnote omitted). The court added that
"[w]hile plaintiffs’ counsel has illustrated that adjustment
is statistically feasible, and would improve the quality of
the counts for most purposes while ameliorating the
profoundly disturbing problem of differentia] undercount,
the Court cannot, on the record before it, supplant the

ncaa decision." NYC v. DOC IIT, 822 F.Supp. at
1.

This appeal followed.

App. 23

Il. DISCUSSION

On appeal, plaintiffs challenge the district court’s
use of the arbitrary-and-capricious standard of review and
contend that the court should have reviewed the
Secretary's Decision de novo. While we agree with the
district court’s rejection of the de novo standard, we
disagree with its use of the arbitrary-and-capricious
standard. For the reasons below, we conclude that, given
the concededly greater accuracy of the adjusted count, the
Secretary's decision was not entitled to be upheld without
a showing by the Secretary that the refusal to adjust the
census was essential to the achievement of a legitimate
governmental objective.

A. Statutory Authorization for Statistical Adjustment

Preliminarily, we reject the contention of
intervenors-defendants-appellees, relying on 13 U.S.C. §
195, that any statistical adjustment of the census is
barred by the Census Act (the "Act"). As presently
formulated, § 195 of the Act provides as follows:

Except for the determination of population
for purposes of apportionment of Representatives in
Congress among the several States, the Secretary
shall, if he considers it feasible, authorize the use
of the statistical method knowing as "sampling" in
carrying out the provisions of this title.

13 U.S.C. § 195 (1988) (emphasis added). Since any
reapportionment of Representatives hinges on the number
of persons “as ascertained under the ... decennial census,"
2 U.S.C. § 2a(a) (1988), § 195 might appear to preclude
the use of sampling in connection with the decennial
census, as contrasted with a mid-decade census.
However, § 195 must be read in conjunction with § 141 of
the Act and in light of the Act’s legislative history.

App. 24

Section 141, as presently formulated, reads as
follows:

The Secretary shall , in the year 1980 and every 10
years thereafter, take a decennial census of
population as of the first day of April of such year

--- In such form and content as he may determine,

including the use of sampling procedures and
special surveys.

13 U.S.C. § 141(a) (1988) (emphasis added). Thus, §
141(a) plainly provides for the use of sampling and
surveys In connection with the decennial census.

Section 141’s provision for sampling was
1976. See Pub.L. 94-521, 90 Stat. 2459 C1976 =
Previously, that section had made no provision whatever
for sampling or special Surveys; and while § 195 had
mentioned such methods, it did not appear to urge their
use. The prior version of § 195 read as follows:

Except for the determination of population
for apportionment purposes, the Secretary may,
where he deems it appropriate, authorize the use
of the statistical method known as "sampling" in
carrying out the provisions of this title.

13 U.S.C. § 195 (1970) (emphasis added). In the 1976 Act
the present version of § 195, quoted at the beginning of
this section, was adopted in order to strengthen the cal]

where "appropriate," the present version

: provides that
such methods "shall" be used where "feasible." The
legislative history indicated that, by "if ... feasible"
Congress meant “whenever possible":

Section 10 amends section 195 of title 13,
U.S.C., to require that the Secretary of Commerce

App. 25

authorize the use of sampling procedures in
carrying out the provisions of this title whenever
he deems it feasible, except in the apportionment
of the U.S. House of Representatives. This differs
from present language which grants the Secretary
discretion to use sampling when it is considered
appropriate. This section as amended strengthens
congressional intent that, whenever possible,
sampling shall be used.

Report of the Senate Post Office and Civil Service
Committee 94-1256 ("S.Rep.") at 6, reprinted in 1976
U.S.Code Cong. & Admin. News ("USCCAN") at 5468
(emphasis added). The Senate Report further explained
that the 1976 Act inserted the authorizing language in §
141 in order "to encourage the use of sampling and
surveys in the taking of the decennial census." S.Rep. at
4, reprinted in 1976 USCCAN 5466; see also Conf.Rep. No.
94-1719, at 13, reprinted in 1976 USCCAN at 5481
(Senate and House of Representatives proposals same
with respect to amendment of § 141). In addressing the
1976 Act as a whole, the Senate Report stated that one of
"[t]he purposes of this legislation [was] ... to direct the
Secretary of Commerce to use sampling and special
surveys in lieu of total enumeration in the collection of
statistical -data whenever feasible...." S.Rep. at 1,
reprinted in 1976 USCCAN at 5463-64 (emphasis added).

Reading §§ 141 and 195 together in light of their
legislative history, we conclude that Congress intended
the Secretary (a) to conduct an actual enumeration as
part of the decennial census, and (b) in lieu of a "total"
enumeration, S.Rep. at 1, reprinted in 1976 USCCAN at
5464, to use sampling and special surveys “whenever
possible," id. at 6, reprinted in 1976 USCCAN at 5468.
Accordingly, we conclude that a statistical adjustment to
the initial enumeration is not barred by the Census Act
and indeed was meant to be encouraged.

App. 26

We turn, therefore, to the question of what
standard should have been used by the district court in
this case in reviewing the Secretary’s decision not to
adjust the census.

B. The Standard of Review

In reasoning that the district court should have
applied a standard of review more stringent than the
arbitrary-and-capricious test, we begin with a review of
Supreme Court decisions in cases involving apportionment
and the right to vote, most of which focused on the
drawing of voting districts by states. In Baker v. Carr,
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),
presented with equal protection challenges to the
apportionment of seats for the Tennessee state legislature,
the Court rejected the defendants’ contentions (a) that
apportionment presented a nonjusticiable political issue,
and (b) that the plaintiffs had no standing to seek judicial
review. Id. at 209, 82 S.Ct. at 706. The Court observed
that "[a] citizen’s right to a vote free of arbitrary
impairment by state action has been judicially recognized
as a right secured by the Constitution, when such
impairment resulted from dilution by a false tally ...." Id.
at 208, 82 S.Ct. at 705 (citing United States v. Classic,
313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)
(emphasis ours)).

In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526,
11 L.Ed.2d 481 (1964) ("Wesberry"), the Court, reviewing
the drawing of congressional districts in Georgia,
confirmed that "[t]he right to vote is too important in our
free society to be stripped of judicial protection by" an
interpretation of Article I that would shield from judicial
review state congressional apportionment systems that
debase a citizen’s right to vote. Id. at 7, 84 S.Ct. at 529.
Noting that "[t]he history of the Constitution, particularly
that part of it relating to the adoption of Art. I, § 2,
reveals that those who framed the Constitution meant

App. 27

that, no matter what the mechanics of an election,
whether statewide or by districts, it was population which
was to be the basis of the House of Representatives," 376
U.S. at 8-9, 84 S.Ct. at 530, the Wesberry Court held that,

construed in its historical context, the command of
Art. I, § 2, that Representatives be chosen “by the
People of the several States" means that as nearly
as is practicable one man’s vote in a congressional
election is to be worth as much as another’s .... To
say that a vote is worth more in one district than
in another would not only run counter to our
fundamental ideas of democratic government, it
would cast aside the principle of a House of
Representatives elected "by the People," a principle
tenaciously fought for and established at the
Constitutional Convention.

376 U.S. at 7-8, 84 S.Ct. at 530 (footnotes omitted)
(emphasis added). The Court concluded that

[while it may not be possible to draw
congressional districts with mathematical
precision, that is no excuse for ignoring our
Constitution’s plain objective of making equal
representation for equal numbers of people the
fundamental goal for the House of Representatives.
That is the high standard of justice and common
sense which the Founders set for us.

Id. at 18, 84 S.Ct. at 535.

The principles set out in Wesberry were further
explained in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct.
1362, 12 L.Ed.2d 506 (1964), which struck down an
Alabama scheme that had resulted in state legislative
districts of widely disparate sive. The Court noted that

App. 28

[t]he right to vote freely for the candidate of one’s
choice is of the essence of a democratic society, and
any restrictions on that right strike at the heart of
representative government. And the right of
suffrage can be denied by a debasement or dilution
of the weight of a citizen’s vote just as effectively as
by wholly prohibiting the free exercise of the
franchise.

Id. at 555, 84 S.Ct. at 1378 (emphasis added). The
Reynolds v. Sims Court discussed Wesberry as follows:

We determined [in Wesberry] that the
constitutional test for the validity of congressional
districting schemes was one of substantial equality
of population among the various districts
established by a state legislature for the election of
members of the Federal House of Representatives.

In that case we decided that an apportionment of
congressional seats which "contracts the value of
some votes and expands that of others" is
unconstitutional, since "the Federal Constitution
intends that when qualified voters elect members
of Congress each vote be given as much weight as
any other vote....". We concluded that the
constitutional prescription for election of members
of the House of Representatives “by the People,"
construed in its historical context, "means that as
nearly as is practicable one man’s vote in a
congressional election is to be worth as much as
another’s." We further stated:

"It would defeat the principle solemnly
embodied in the Great Compromise--equal
representation in the House for equal numbers of
people--for us to hold that, within the States,
legislatures may draw the lines of congressional
districts in such a way as to give some voters a

App. 29

greater voice in choosing a Congressman than
others."

We found further, in Wesberry, that “our Constitution’s
plain objective" was that "of making equal representation
for equal numbers of people the fundamental goal...." We
concluded by stating:

"No right is more precious in a free country than
that of having a voice in the election of those who
make the laws under which, as good citizens, we
must live. Other rights, even the most basic, are
illusory if the right to vote is undermined. Our
constitution leaves no room for classification of
people in a way that unnecessarily abridges this
right."

Reynolds v. Sims, 377 U.S. at 559-60, 84 S.Ct. at 1380
(emphasis added).

In Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct.
1225, 22 L.Ed.2d 519 (1969), which involved a drawing of
congressional districts in Missouri which resulted in a
1.06 to 1 ratio of the largest district to the smallest, the
Court elucidated the Wesberry/Xeynolds v. Sims
as-nearly-as-practicable standard. The Court rejectled]
Missouri’s argument that there is a fixed numerical or
percentage population variance small enough to be
considered de minimis and to satisfy without question the
"as nearly as practicable" standard. The whole thrust of
the "as nearly as practicabie" approach is inconsistent
with adoption of fixed numerical standards which excuse
population variances without regard to the circumstances
of each particular case. The extent to which equality may
practicably be achieved may differ from State to State and
from district to district. Since "equal representation for
equa! numbers of people [is] the fundamental goal for the
House of Representatives," Wesberry v. Sanders, supra,
376 U.S. at 18, 84 S.Ct. at 535, the “as nearly as

App. 30

practicable" standard requires that the State make a
good-faith effort to achieve precise mathematical equality.
See Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362,
1390, 12 L.Ed.2d 506 (1964). Unless population variances
among congressional districts are shown to have resulted
despite such effort, the state must justify each variance,
no matter how small.

Equal representation for equal numbers of people
is a principle designed to prevent debasement of voting
power and diminution of access to elected representatives.
Toleration of even small deviations detracts from these
purposes. Therefore, the command of Art. I, $2, that
States create congressional districts which provide equal
representation for equal numbers of people permits only
the limited population variances which are unavoidable
despite a good-faith effort to achieve absolute equality, or
for which justification is shown.

Clearly, the population variances among the
Missouri congressional districts were not unavoidable.
Indeed it is not seriously contended that the Missouri
Legislature came as close to equality as it might have
come.... [I]t is simply inconceivable that population
disparities of the magnitude found in the Missouri plan
were unavoidable.

Kirkpatrick v. Preisler, 394 U.S. at 530-32, 89 S.Ct. at
1229.

In Karcher v. Daggett, 462 U.S. 725, 103 S.Ct.
2653, 77 L.Ed.2d 133 (1983), the Court confirmed the
strictness of this standard when it upheld the invalidation
of a New Jersey congressional districting plan where the
population of the largest district was less than 1% greater
than the population of the smallest. Quoting the
Wesberry/Reynolds v. Sims “as nearly as practicable"

App. 31

language, 462 U.S. at 730, 103 S.Ct. at 2658, the Court
held that deviations could not be sanctioned where,
though small, they “were not the result of a good-faith
effort to achieve population equality," id. at 727, 103 S.Ct.
at 2656.

In sum, the Supreme Court has long held that the
right to vote is too important to be deprived of judicial
protection; that that right is impaired not only by total
disenfranchisement but also by dilution, because the
Constitution calls for one person’s vote to be worth as
much as another’s as nearly as is practicable; that
dilution may result from creating voting districts of
different sizes or from "a false tally"; and that, in
apportioning legislative seats through districting, a state
must make a good-faith effort to achieve the goal of
“one-person, one-vote."

The root of the guarantee of "one-person, one-vote"
is the Constitution’s guarantee to all persons of the equal
protection of the law. See, e.g., New York City Board of
Estimate v. Morris, 489 U.S. 688, 699, 109 S.Ct. 1433,
1441, 103 L.Ed.2d 717 (1989) ("Reynolds v. Sims line of
cases" reflects an "equal protection approach"); id. at 692,
109 S.Ct. at 1437-38 ("equal protection guarantee of
‘one-person, one-vote”); Hadley v. Junior College District,
397 U.S. 50, 56,90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970)
‘as a general rule, whenever a state or local government
decides to select persons by popular elect’on to perform
governmental functions, the Equal Protection Clause of
the Fourteenth Amendment requires that each qualified
voter must be given an equal opportunity to participate in
that election, and when members of an elected body are
chosen from separate districts, each district must be
established on a basis that will insure, as far as is
practicable, that equal numbers of voters can vote for
proportionately equal numbers of officials"); Baker v. Carr,
369 U.S. at 209-10, 82 S.Ct. at 706. The equal protection
requirement appears explicitly in the Fourteenth

App. 32

Amendment, which applies to the states, and is a
component of the Due Process Clause of the Fifth
Amendment, which applies to the federal government.
See, eg., United States Department of Agriculture v.
Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782
(1973); id. at 533 n. 5, 93 S.Ct. at 2825 n. 5 (""[w]hile the
Fifth Amendment contains no equal protection clause, it
does forbid discrimination that is "so unjustifiable as to be
violative of due process"”" (quoting Schneider v. Rusk, 377
U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218
(1964))); Shapiro v. Thompson, 394 U.S. 618, 641-42, 89
S.Ct. 1322, 1335, 22 L.Ed.2d 600 (1969); Bolling v.
Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).
Because the right to equal apportionment is rooted in the
right to equal protection, a court faced with a challenge to
the constitutionality of an apportionment system is not
called upon to "enter upon policy determinations for which
judicially manageable standards are lacking. Judicial
standards under the Equal Protection Clause are well
developed and familiar," and applicable. Baker v. Carr,
369 U.S. at 226, 82 S.Ct. at 715.

Under the familiar judicial standards, a claim of
denial of equal protection subjects the challenged
governmental act to a degree of scrutiny that depends in
part on the nature of the affected right and in part on the
nature of the classification. At one end of the spectrum,
a program that (a) is social or economic in nature, and (b)
is not alleged to discriminate on the basis of inherently
suspect classifications or to implicate "fundamental"
personal rights, will not be held to violate equal protection
principles if it has any rational relationship to a
legitimate governmental purpose. See, e.g., Schweiker v.
Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67
L.Ed.2d 186 (1981); City of New Orleans v. Dukes, 427
U.S. 297, 303, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511
(1976) (per curiam). At the other end of the spectrum, a
scheme that either (a) impinges on the exercise of a
fundamental personal right, or (b) disadvantages a

App. 33

"suspect" class, such as a racial or ethnic group, has
traditionally been subject to strict scrutiny to determine
whether the scheme is "precisely tailored to serve a
compelling governmental interest." Plyler v. Doe, 457 U.S.
202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982); see,
e.g., Kramer v. Union Free School District No. 15, 395
U.S. 621, 627-30, 89 S.Ct. 1886, 1889-91, 23 L.Ed.2d 583
(1969) (right to vote in school district election); Shapiro v.
Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22
L.Ed.2d 600 (1969) (right to travel); Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113,
86 L.Ed. 1655 (1942) (right to procreate). In general, if a
law alleged to infringe a certain right directly would
require a heightened degree of scrutiny, heightened
scrutiny should also be given when the law is alleged to
infringe that right discriminatorily. See Police
Department v. Mosley, 408 U.S. 92, 96, 101-102, 92 S.Ct.
2286, 2293-94, 33 L.Ed.2d 212 (1972); Eisenbud v. Suffolk
County, 841 F.2d 42, 45-46 (2d Cir.1988).

In the present case both the nature of the right
and the nature of the affected classes are factors that
traditionally require that the government's action be given
heightened scrutiny: the right to have one’s vote counted
equally is fundamental and constitutionally protected, and
the unadjusted census undercount disproportionately
disadvantages certain identifiable minority groups.
Inaccuracies in the decennial census affect both the
distribution of Representatives among states and the
distribution of Representatives within most states, since
states use the census figures in drawing district lines.
Though the differential undercount has been noted, see,
e.g., Karcher v. Daggett, 462 U.S. at 737 n. 9, 103 S.Ct. at
2662 n. 9 ("the rate of undercount in the census for black
population on a nationwide basis is significantly higher
than the rate of undercount for white population"), that
disparate effect has been tolerated in the past only
because the census figures were considered to be "the ’best
population data available,” see id. at 738, 103 S.Ct. at

App. 34

2662 (quoting Kirkpatrick v. Preisler, 394 U.S. at 528, 89
S.Ct. at 1227). Here, however, the district court implicitly
found that the census did not achieve equality of voting
power as nearly as practicable. It found that the
PES-indicated statistical adjustment was feasible; that
for most purposes and for most of the population that
adjustment would result in a more accurate count than
the original census; and that the adjustment would
lessen the disproportionate undercounting of minorities.
Equal protection analysis requires that heightened
scrutiny be given to the Secretary’s decision to adhere to
an acknowledged undercount that concededly impacts
minority groups more severely than nonminority groups.
Governmental action that disproportionately denies
representation on the basis of race or ethnicity cannot be
upheld solely on the basis that the action was "not so far
beyond the pale of reason as to be arbitrary or capricious,"
NYC v. DOC III, 822 F.Supp. at 929.

There are, of course, differences between the
present case and the Wesberry/Reynolds v. Sims line of
cases because the present case focuses not on action by a
state within its boundaries but rather on federal action
that is nationwide in scope. One difference is the result
of institutional factors. When the defendant is a state
entity, the Supremacy Clause of the Constitution, Art. VI,
cl. 2, is applicable, and federal law prevails. When the
defendant is the federal government, the Supremacy
Clause does not come into play, and a court must give
effect to the principle of separation of powers. See, e.g.,
Department of Commerce v. Montana, --- U.S. ----, ----, 112
S.Ct. 1415, 1426, 118 L.Ed.2d 87 (1992) ("DOC v.
Montana"). In our view, the latter factor means that,
except with respect to questions of law, a court generally
should not review decisions of the Executive Branch under
a de novo standard.

A second difference between cases involving state
actors and those involving federal actors is the result of

App. 35

constraints that are in part geographical. Wh.ie it may be
possible for a steve to achieve equality of population in its
congressional election districts, efforts toward such a goal
nationwide are constrained by three constitutional
requirements: (1) that each state be allotted at least one
Representative, (2) that the number of Representatives
not exceed one for every 30,000 persons, and (3) that
congressional election districts not cross state boundaries.
Given these constraints, the goal of precise equality in
voting power is “illusory for the Nation as a whole." DOC
v. Montana, --- U.S. at ----, 112 S.Ct. at 1429. That the
goal of precise equality cannot be achieved nationwide on
account of those constraints, however, does not relieve the
federal government of the obligation to make a good-faith
effort to achieve voting-power equality "as nearly as is
practicable." See id. at ---- - ----, 112 S.Ct. at 1426-29
(relying on Wesberry/Reynolds v. Sims line of cases and
applying good-faith test in challenge to federal
apportionment legislation); Franklin v. Massachusetts, ---
US. ----, ----, 112 S.Ct. 2767, 2777, 120 L.Ed.2d 636 (1992)
(reviewing merits of census claim to "determin[e] whether
the Secretary’s [judgment in allocating overseas military
personnel among states) is consistent with the
constitutional language and the constitutional goal of
equal representation" (citing DOC v. Montana)). We
conclude that the federal government, no less than the
states, is required to make a good-faith effort to achieve
the Constitution’s plain objective of equal representation
for equal numbers of people. The impossibility of
achieving precise mathematical equality is no excuse for
not making this mandated good-faith effort.

C. Burdens of Proof

Although for most types of equal protection claims,
a plaintiff must show that the government’s
discrimination was intentional, see, eg., Village of
Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50

App. 36

L.Ed.2d 450 (1977) (housing); Washington v. Davis, 426
U.S. 229, 239-45, 96 S.Ct. 2040, 2047-50, 48 L.Ed.2d 597
(1976) (employment), the Supreme Court has not imposed
such a requirement in any of the cases involving
apportionment. As the Seventh Circuit noted in Tucker
v. United States Department of Commerce, 958 F.2d 1411
(7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 407, 121
L.Ed.2d 332 (1992), cases such as Reynolds v. Sims

do not place on plaintiffs any burden of proving
that a malapportionment represents a deliberate
effort to dilute some group’s voting power. It is
enough that the state’s electoral districts are
malapportioned. We assume that those cases
survive the later ones, such as Washington uv.
Davis, supra, that require proof of intentional
discrimination. The purpose of that requirement is
to prevent the concept of equal protection from
being used to invalidate governmental policies that
just happen to bear more heavily against a
vulnerable group, whereas the reapportionment
cases vindicate a right that the Supreme Court has
found to be implicit in the Constitution to an
apportionment mechanism that will, so far as
possible give each person’s vote the same weight in
an election. A state’s failure to create the required
mechanism is an intentional denial of the right to
an equally weighted vote.

958 F.2d at 1414 (emphasis in original). Rather, the
Supreme Court has held that the burden of a plaintiff
asserting an apportionment claim is simply to show that
the governmental entity failed to make a good-faith effort
to achieve equal districts as nearly as practicable. Thus,
in Karcher v. Daggett, the Court stated the principal issue
as

whether the population differences among districts
could have been reduced or eliminated altogether

App. 37

by a good-faith effort to draw districts of equal
population. Parties challenging apportionment
legislation must bear the burden of proof on this
issue, and if they fail to show that the differences
could have been avoided the apportionment scheme
must be upheld. If, however, the plaintiffs can
establish that the population differences were not
the result of a good-faith effort to achieve equality,
the State must bear the burden of proving that
each significant variance between districts was
necessary to achieve some legitimate goal.

462 U.S. at 730-31, 103 S.Ct. at 2658. Once the plaintiff
shows that a scheme was not the product of a good-faith
effort to achieve equality, "the burden shift[s] to the
[governmental entity] to prove that the population
deviations in its plan were necessary to achieve some
legitimate state objective." Id. at 740, 103 S.Ct. at 2663
(emphasis added); see also Kirkpatrick v. Preisler, 394
U.S. at 532, 89 S.Ct. at 1229-30 (state did not carry its
burden of showing that disparity was “unavoidable"):
Reynolds v. Sims, 377 U.S. at 560, 84 S.Ct. at 1381
(Constitution prohibits “unnecessar[ ]y”" abridgement of
right to vote (quoting Wesberry, 376 U.S. at 18, 84 S.Ct.
at 535)).

In those cases in which a plaintiff is required to
show that discrimination was intentional, the requisite
intent may be inferred from such factors as “the totality
of the relevant facts, including the fact, if it is true, that
the law bears more heavily on one race than another,"
Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049, or
from the historical background of the decision, see, e.g.,
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. at 267-68, 97 S.Ct. at 564-65,
or from the foreseeability of discriminatory effects, see,
e.g., Columbus Board of Education v. Penick, 443 U.S.
449, 465, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979). The
government's "[aJdherence to a particular policy or

App. 38

practice, with full knowledge of the predictable effects of
such adherence upon racial imbalance,” is a factor that
may be taken into account in determining whether acts
were undertaken with discriminatory intent. Id. The
same types of evidence may support an inference that the
discrimination resulted from the lack of a good-faith effort
to achieve equality as nearly as practicable.

In the present case, the findings of the district
court, set out principally in Part I.G. above, plainly show
that plaintiffs carried their burden of proving that the
Secretary's refusal to adjust the census in accordance with
the PES did not reflect an effort to achieve equality as
nearly as practicable. Those findings are supported by,
inter alia, the Secretary's acknowledgement that the
PES-indicated adjustments would likely not only make
the census more accurate nationally, but would also
reduce the disparate impact of the census’ inaccuracies on
minority groups, and that he gave other factors priority
over achievement of greater accuracy. For example, he
stated that he valued "distributive accuracy" over
numerical accuracy; and in stating that an adjustment
would not be made because it would not result in greater
distributive accuracy, the Secretary revealed that he
would decline to make the generally improving
adjustment that would lessen the disproportionate
undercounting of minorities if it would result in a
distribution of Representatives that would be different
from the present distribution, although just as accurate.
The Secretary also stated that he felt that eliminating the
possibility of manipulation of statistical surveys in the
future was more important than using the admittedly
unmanipulated 1990 PES to achieve a more accurate
overall count; and that he believed that the use of
statistics (notwithstanding Congress’s expressed intent to
encourage such use) was undesirable because it might
reduce state cooperation in the actual enumeration phase
of future censuses. He adopted presumptions against any
adjustment to the census, stating that greater accuracy at

Anp. 39

the national level would not lead him to make an
adjustment unless it were "convincingly" shown to be not
just as accurate, but "more accurate" at every other level
as well. (See, e.g., Secretary's Decision at 2-5.)

The inference that the Secretary did not make the
required good-faith effort is also supported by the fact
that the differential undercount in the 1990 enumeration
was plainly foreseeable and foreseen. In the 1940 census
and in every census since, members of ethnic and racial
minority groups had been undercounted more severely
than members of other demographic groups; and the
Census Bureau had noted those disproportionate
undercounts. Though the Bureau set out to design a
program to lessen that effect for the 1990 census, the
Secretary initially decided in 1987 that no adjustment
would be made; and after the proceedings in this case led
to the withdrawal of that decision, the Secretary again
decided in 1991 that no adjustment would be made,
notwithstanding his acknowledgements that it was
generally agreed that at the national level the
adjustments would result in greater accuracy, that half of
his advisors apparently believed that the adjustments
would not reduce accuracy even at regional or local levels,
and that a PES-adjusted count appeared to be more
accurate in areas encompassing up to two-thirds of the
national population.

In sum, we conclude that plaintiffs amply showed
that the Secretary did not make the required effort to
achieve numerical accuracy as nearly as practicable, and
that the burden thus shifted to the Secretary to justify his
decision not to adjust the census in a way that the court
found would for most purposes be more accurate and
would lessen the disproportionate counting of minorities.
The Secretary's decision not to make that adjustment is
subject to scrutiny not under an arbitrary-and-capricious
standard of review but rather under the more traditional
standard applicable to an equal protection claim that a

App. 40

fundamental right has been denied on the basis of race or
ethnicity. While precise equality is a goal that at the
national level may be illusory, there must be a good-faith
effort to approach that goal as nearly as is practicable,
and the substantive question becomes what choice should
be made among imperfect alternatives. When the official
answer is that it is preferable to undercount minorities,
that answer must be supported by an official showing that
that result (a) furthers a governmental objective that is
legitimate, and (b) is essential for the achievement of that
objective.

CONCLUSION

We have considered all of defendants’ arguments in
support of the judgment dismissing the complaint and
have found them to be without merit. The judgment is
vacated, and the matter is remanded for further
proceedings not inconsistent with this opinion.

TIMBERS, Senior Circuit Judge, dissenting:

I would affirm on the excellent, comprehensive
opinion of Judge McLaughlin reported at 822 F.Supp. 906
(E.D.N.Y.1993). From the majority's refusal to do so, I
respectfully but emphatically dissent.

The only two other circuits that have ruled on this
issue have agreed with Judge McLaughlin. City of Detroit
v. Franklin, 4 F.3d 1367 (6 Cir.1993), cert. denied, --- U.S.
----, 114 S.Ct. 1217, 127 L.Ed.2d 563 (1994); Tucker v.
U.S. Dept. of Commerce, 958 F.2d 1411 (7 Cir.), cert.
denied, --- U.S. ----, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992).
The majority decision in the instant case is the only
contrary one. Thus it creates a conflict among the
circuits.

App. 41

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

THE CITY OF NEW YORK,

THE STATE OF NEW YORK,

THE PEOPLE OF THE STATE OF
CALIFORNIA EX REL. DANIEL E.
LUNGREN, ATTORNEY GENERAL,

THE CITY OF LOS ANGELES,

THE CITY OF CHICAGO,

DADE COUNTY, FLORIDA,

THE U.S. CONFERENCE OF MAYORS,

THE NATIONAL LEGUE 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, and

THE STATE OF TEXAS,

THE CITY OF PHOENIX, ARIZONA,

THE STATE OF NEW JERSEY,

THE STATE OF FLORIDA,

THE CITY OF CLEVELAND, OHIO,

THE CITY OF DENVER, COLORADO,

THE CITY OF INGLEWOOD, CALIFORNIA,
THE CITY OF NEW ORLEANS, LOUISIANA,
THE CITY OF OAKLAND, CALIFORNIA,
THE CITY OF PASADENA, CALIFORNIA,
THE CITY OF PHILADELPHIA, PENNSYLVANIA,

App. 42

THE CITY OF SAN ANTONIO, TEXAS,

THE CITY OF SAN FRANCISCO, CALIFORNIA,
BROWARD COUNTY, FLORIDA,

THE STATE OF ARIZONA,

THE CITY OF BALTIMORE, MARYLAND,

THE CITY OF BOSTON, MASSACHUSETTS,
THE CITY OF LONG BEACH, CALIFORNIA,
THE CITY OF SAN JOSE, CALIFORNIA,

LOS ANGELES COUNTY, CALIFORNIA,

SAN BERNARDINO COUNTY, CALIFORNIA,
THE DISTRICT OF COLUMBIA,

THE NAVAJO NATION,

THE STATE OF NEW MEXICO,

THE CITY OF TUCSON, ARIZONA,

THE COUNTY OF HUDSON, NEW JERSEY and,
THE COUNCIL OF THE GREAT CITY SCHOOLS,

Plaintiff-Intervenors,
-against- 88 CV 3474

UNITED STATES DEPARTMENT OF COMMERCE,

RONALD H. BROWN, 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,

WILLIAM CLINTON, as President of the
United States, and

DONALD K. ANDERSON, as Clerk of the
United States House of Representatives,

Defendants, and

App. 43

THE STATE OF WISCONSIN, and
THE STATE OF OKLAHOMA,
Defendants-Intervenors.

CITY OF ATLANTA, and
MAYNARD JACKSON, Individually
and as Mayor, City of Atlanta,

Plaintiffs,

-against- 92 CIV 1566
RONALD H. BROWN, as Secretary of

United States Department of Commerce,
BUREAU OF THE CENSUS, and

BARBARA EVERITT BRYANT, as Director
of the Bureau of the Census,

Defendants.
xX

FLORIDA HOUSE OF REPRESENTATIVES,

FLORIDA STATE CONFERENCE,

THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE,

MIGUEL A. DE GRANDY,

WILLYE DENNIS,

MARIO DIAZ-BALART,

Dr. CHARLES EVANS,

RODOLFO GARCIA, JR.,

BOLLEY L. "BO" JOHNSON,

ALFRED J. LAWSON, JR.,

WILLIS LOGAN, JR.,

JOHNNIE MCMILLIAN,

ALZO J. REDDICK,

PETER RUDY WALLACE,

T.K. WETHERELL,

Plaintiffs,

App. 44

-against- 92 CIV 2037

RONALD H. BROWN, as Secretary of the
United States Department of Commerce,

MICHAEL ESPY, as Secretary
of Agriculture,

DONNA E. SHALALA, as Secretary of Health
and Human Services,

HENRY CISNEROS, as Secretary of Housing
and Urban Development,

ROBERT B. REICH, as Secretary of Labor,

FREDERICO PENA, as Secretary of
Transportation,

RICHARD W. RILEY, as Secretary of
Education, and

MICHAEL R. DARBY, as Under Secretary
for Economic Affairs of
the United States Department of Commerce,

Defendants.

xX
MEMORANDUM AND ORDER
McLAUGHLIN, Circuit Judge’.

Plaintiffs--states, cities, citizens’ groups, and
individual citizens and taxpayers--seek a judgment: (1)
vacating former Secretary of Commerce _ Robert
Mosbacher’s July 15, 1991 decision that the 1990 census
would not be statistically adjusted; (2) ordering that such
an adjustment be made; and (3) allowing plaintiffs to use
and publicize certain data generated by the Census
Bureau, and already produced, subject to a protective
order, to the plaintiffs during this litigation. For the
reasons set forth below, the Court holds that the decision

“sitting by designation

App. 45

against adjustment shall not be disturbed, but grants the
plaintiffs’ request to use and publish the Census Bureau
data. The following constitute the Court’s findings of fact
and conclusions of law in accordance with Federal Rule of
Civil Procedure 52.

FACTS

Just to recount the facts of this case is arduous,
given its four-year history, the number of parties involved,
and the complicated statistical evidence lying at the core
of the dispute. Many of the material facts have been set
forth in two prior published opinions--City of New York v.
United States Dep’t of Commerce, 713 F.Supp. 48
(E.D.N.Y.1989) ("City of New York I"), and City of New
York v. United States Dep’t of Commerce, 739 F.Supp. 761
(E.D.N.Y.1990) ("City of New York II") -some familiarity
with which is assumed.

Census Background

The Constitution requires a decennial census.
Article I, Section 2, Clause 3 states that "[t]he actual
enumeration shall be made [every ten years], in such
manner as [the Congress] shall by Law direct." Congress
has, in turn, delegated to the Secretary of Commerce the
duty of taking the census "in such form and content as he
may determine, including the use of sampling procedures
and special surveys." 13 U.S.C. § 141(a) (1982). The
Bureau of the Census, an agency within the Department
of Commerce, actually conducts the census. See 13 U.S.C.
§ 2 (1982).

The results of the census are used for a galaxy of
purposes. The federal government uses them to calculate
how to dispense program funds among the states. States
use the counts for political redistricting. Sociologists and
historians study them for more esoteric purposes. None
of this obscures the central truth that the “basic

App. 46

constitutional purpose" of the census is "to determine the
apportionment of Representatives among the States."
Carey v. Klutznick, 653 F.2d 732, 736 (2d Cir.1981).

The first census of the American population was in
1790. Thomas Jefferson, who was in charge of it,
complained of an undercount. There have been 20
subsequent censuses. Each of them has also resulted in
an undercount. More troubling than the undercount
itself, however, is that racial and ethnic minorities are
undercounted to a greater degree than the population as
a whole. This problem, known antiseptically as the
"differential undercount," has skewed every census since
the Bureau started measuring it in 1940.

Because the counts are used to calculate the
political representation and financial aid to be afforded to
a given area, the fear that the census may be
perpetuating a system in which those most in need of
representation and aid are deprived of both is a major
concern. With that in mind, the Census Bureau began,
after the 1980 census, to develop a method by which both
the undercount of the entire population and the
differential undercount could be reduced through a
statistical adjustment employing a "“post-enumeration
survey" ("PES"). This method (and the Department of
Commerce’s reaction to it) lie at the heart of this case.

The 1990 Census

Taking the census has always been a daunting
task, and the 1990 count was no exception. The Bureau
began preparing in 1983, seeking to improve the
techniques that it had used in prior censuses. Among
other things, it consulted with state and local
governments, planned an extensive advertising campaign,
designed a more ethnically inclusive census questionnaire,
and increased the amount of automation used, including
the use of an automated geographic control system, which

App. 47

assured accurate and timely maps and geographic files for
the 1990 census. While the parties may disagree on the
quality of the census counts achieved in 1990, the
four-step procedure used to conduct the census is largely
undisputed.

First: an address list of housing units was
compiled. This list was crucial because it indicated every
household in the nation to which the Bureau would send
questionnaires. Since the Bureau relies on the mail
return of those questionnaires to count a majority of the
population, an accurate and comprehensive list was
vitally important. In constructing the list, the Bureau
relied primarily on commercial mailing lists,
supplemented by extensive field research and
collaboration with the Postal Service. Then, numerous
quality controls were instituted to improve the accuracy
of the list. |

Second: census questionnaires were mailed to each
housing unit. Householders were asked to complete and
return the questionnaires to the local census district office
on or before April 1, 1990.' This is called the "mail
out/mail back" phase. The effort to get individuals to
participate in the mail ovt/mail back phase was extensive.
In addition to the Census Bureau’s general advertising
campaign, it also conducted campaigns specifically
targeted at African-Americans, Asians, Hispanics, and
Native Americans. In addition, the Bureau published
specialized, foreign-language brochures encouraging public
participation in the census. It also maintained a set of
toll-free numbers (in eight languages) for anyone who had
questions regarding the census questionnaire, and every
census form advised Spanish speakers that they could call

‘April 1, 1990 day is officially entitled "Census Day,"
and is the precise date as of which the Census Bureau
seeks to count the population.

App. 48

a toll-free 800 number to obtain a census form in Spanish.
Finally, the Census Bureau employed different methods
in areas where it was believed that the normal procedure
would be particularly ineffective. See Secretary of the
Department of Commerce, Decision on Whether or Not a
Statistical Adjustment of the 1990 Decennial Census of
Population Should be Made for Coverage Deficiencies
Resulting in an Overcount or Undercount of the
Population, July 15, 1991 (the "Decision"), at 4-5-4-6.

Third: because the return rate of census
questionnaires is obviously never 100%, and in 1990 was
only 63%, see Transcript of Trial ("Tr.") at 1823, the
Census Bureau embarked on an extensive follow-up
campaign. Second mailings were sent to households that
failed to return the initial form, and in census districts
with particularly low return rates, the Bureau remailed
census forms to all residents. Tr. at 1730-31.

Fourth: when steps 1-3 did not produce a census
return from a particular household, the Census Bureau
engaged in "non-response follow-up," the final stage of the
enumeration. During this phase, each non-responding
housing unit was assigned to a "census enumerator," an
employee who was directed to make up to six attempts to
contact a household member to obtain the information
necessary to complete a census form. If this also proved
fruitless, the enumerator was then required to try to
obtain basic information on the missing housing unit from
a reliable source, such as a neighbor or building manager.
Decision at 4-7. Once 95% of a district’s operations were
completed, a final phase of non-response follow-up
required enumerators to make one last-ditch attempt to
visit each remaining unresolved household to obtain as
complete an interview as possible.

App. 49

After the enumeration was completed,
post-enumeration "Coverage Improvement Programs"
were implemented, with the result that 5.4 million people
were added to the counts. Decision at 4-7. The result of
all of these efforts was that 249,632,692 people were
counted during the 1990 census. Decision at 4-2.

The Differential Undercount

Despite the herculean efforts of the Census Bureau,
it is undisputed that the 1990 Census was not--and could
not realistically be--successful in its goal of achieving an
exact count of the nation’s population. Given the nature
of the task, it is not surprising that the census fails to
count some individuals ("omissions") and also adds
persons into the count erroneously ("erroneous
enumerations"). Tr. at 80-82.

The "net undercount" is the difference between
omissions and erroneous enumerations. It is undisputed
that the 1990 census, like all previous censuses, resulted
in a net national undercount. Decision at 1-1. It is
similarly uncontroverted that African-Americans and

*These coverage improvement programs included: (1)
a 100 percent re-check of vacant, uninhabitable, or
nonexistent units; (2) the "Were you counted?" advertising
campaign to reach people who thought they might have
been missed by the census; (3) a parolee and probationer
check, to set the names and Census Day addresses of
those people and add them to the census if they had not
already been counted; (4) the housing coverage check, in
which the Census Bureau recanvassed select blocks based
on evidence flushed out by the automated management
information system; and (5) the local government review
program, which provided local governments with the
opportunity to challenge census counts for their areas.
Decision at 4-7-4-9.

App. 50

other minorities have been persistently undercounted to
a greater degree than non-Hispanic whites in all censuses
since 1940 when the Bureau began measuring such
differences, and that this anomaly is perpetuated in the
1990 census. The difference between the undercount rate
for non-Hispanic whites and that for minority populations
is known as the "differential undercount." Tr. at 91-92.
According to the Secretary, "Blacks appear to have been
undercounted in the 1990 census by 4.8%, Hispanics by
5.2%, Asian-Pacific Islanders by 3.1%, and American
Indians by 5.0%, while non-Blacks appear to have been
undercounted by 1.7%." Decision at 1-1.

The Possibility of Statistical Adjustment

The Census Bureau has been aware of the
existence of a differential undercount since the 1950's.
The intractable problem has been how to fix it. Following
the 1980 census, concerns over the persistence of the
differential undercount, its deleterious effects on the
accuracy of census counts, and the unfair results arising
from such inaccuracy, prompted the Bureau to start a
research program aimed at developing statistical
techniques to ameliorate the problem in the 1990 census.”
Tr. at 525, 1291-92. By 1984, the Bureau had developed
a timetable for internal Bureau research that would
ultimately lead to a decision whether to adjust the 1990

‘Discomfiture over the persistent pattern of
differential undercount had prompted the Bureau to
conduct a Post-Enumeration Program (the "PEP") in 1980,
a survey designed to evaluate the quality of the 1980
census and to estimate the undercount, including the
differential undercount, at both national and subnational
levels. A lawsuit to have the 1980 census adjusted
statistically by use of the PEP or another statistical
technique was unsuccessful. See Cuomo v. Baldrige, 674
F.Supp. 1089 (S.D.N.Y.1987).

App. 51

census statistically in an effort to reduce the differential
undercount. Two task forces were created to consider the
undercount problem as it related to the upcoming 1990
census: The Undercount Steering Committee ("USC") was
responsible for planning undercount research and policy
development. The Undercount Research Staff ("URS")
conducted the actual research. Other divisions at the
Bureau also conducted research on the undercount and
the possibility of adjustment. Tr. at 517-25, 1292-93. In
addition, the Bureau sought the opinions of outside
experts and organizations, such as the American
Statistical Association and the National Academy of
Science, regarding the possibilities for adjustment.

| After considering the alternatives, the Bureau
settied upon the PES as the best tool to statistically
adjust the census through the use of “dual system
estimation" ("DSE"). Tr. at 559-61. Dual system
estimation or, in more pedestrian’ terms,
“capture/recapture," is, as relevant here, an approach that
uses a second measurement to ascertain the quality of the
estimate obtained by an initial measurement, and then
uses that information to provide a purportedly more
accurate, dual system estimate.‘ Here, the original
enumeration, the census, was followed by a second
measurement, the PES, which attempted to measure the
rate at which people were omitted and erroneously

‘At trial, the parties explained capture/recapture in
terms of determining the number of fish in a lake. First
you capture 1000 fish, tag them and throw them back.
Then, you catch another 100. If 90 of those have tags, it
suggests that 90 percent of all the fish in the lake are
tagged. If so, then the 1000 fish initially tagged represent
90% of all the fish in the lake. Doing the algebra, the
ep — of fish in the lake is therefore 1,111. Tr.
at .

App. 52

enumerated by the census, in order to determine a net
undercount rate.

While the Bureau has used post-enumeration
surveys in a variety of ways since 1950, it has never
statistically adjusted based on DSE. The Bureau worked
throughout the 1980’s to design the PES to make it an
effective tool for census adjustment. Tr. at 572. For
example, correlation bias, which may occur when
residents become confused by an overlap between the
census and the PES, was addressed by distinctly
separating the two procedures. Tr. at 578-82. Another
species of correlation bias, which arises when individuals
who have different probabilities of being counted ("capture
probabilities") in the census are grouped together in the
PES, was reduced by the use of "poststratification." Tr. at
205-208.° In addition, statistical "smoothing" was chosen
to address anomalous results in the PES.®

By the Spring of 1987, after much testing and
fine-tuning, the Census Director, John Keane, had decided
that the Bureau should proceed with plans to adjust the
1990 census data through the use of DSE, if the PES
results met a certain quality standard. Dr. Keane met

*Poststratification grouped all individuals with a
similar likelihood of being counted in the census. These
groups, labeled "poststrata", were defined by age, sex,
race, Hispanic origin, housing tenure (i.e. whether the
individual owned or rented a residence), type of place (i.e.,
central city, suburb, outside metropolitan area), and
geographic region. Tr. at 513. This categorization
resulted in a total of 1,392 exhaustive and mutually
exclusive poststrata. Tr. at 206-07. In other words, each
resident of the United States fits into one, and only one,
poststratum.

*For an explanation of smoothing, see infra note 10.

App. 53

with his superior, Robert Ortner, the Under Secretary of
the Department of Commerce, to tell him that such a
decision had been made and that a press conference to
that effect was imminent. Six days later, Keane met
again with Ortner and other Commerce Department
officials, who informed Keane that they had decided
against adjustment. Shortly thereafter, Commerce
Department officials instructed their Census Bureau
officials not to disclose that a decision had been made. Tr.
629-30, 1330. On October 30, 1987 the Department of
Commerce announced its decision against adjustment, and
this lawsuit was born.

History of This Litigation

In November, 1988, plaintiffs sued to enjoin the
1990 census, challenging the methodology by which it
would be taken, and seeking to reverse the decision
against adjustment. Defendants--the Department of
Commerce, its Secretary, President Bush, and other
officials within the Department of Commerce and its
subsidiary, the Bureau of the Census--moved to dismiss
the application for the injunction. This Court denied the
dismissal motion, holding that the plaintiffs had standing
to challenge the census on constitutional grounds;’ the

"While the defendants continued to argue during
pretrial proceedings that this case presented a
non-justiciable political question, the Supreme Court has
now rejected this argument, holding that constitutional
challenges to the census methods employed to arrive at
the apportionment are justiciable. United States Dep’t of
Commerce v. Montana, __ USS. : , 112 S.Ct.
1415, 1424-26, 118 L.Ed.2d 87 (1992).

App. 54

Court also ruled that it would consider the Commerce
Department’s decision against adjustment under the
“arbitrary and capricious" standard of review of the
Administrative Procedure Act, 5 U.S.C. § 706(2)A) (1982)
(the "APA"). City of New York I, 713 F.Supp. at 54.

When the dismissal motion was denied, a hearing
was scheduled on the injunction. It was set to go forward
in the Summer of 1989, when, at the eleventh hour, the
parties entered into a stipulation (the "Stipulation" or the
"Stip."). The Stipulation vacated the Commerce
Department’s 1987 decision against adjustment and
agreed that the new Commerce Secretary, Robert
Mosbacher, would consider de novo and “with an open
mind," whether adjustment was warranted. Stip. at 2-3.
The Stipulation also agreed that the program to gather
the statistical data necessary for adjustment would
proceed, that the Secretary would decide whether to
adjust by July 15, 1991, and that his decision would be
consistent with certain procedures, including the
promulgation of "guidelines" articulating what the
defendants believed to be the relevant technical and policy
considerations affecting the decision. It also mandated
the creation of an eight-member Special Advisory Panel

App. 55

(the "Panel")* of statistical and demographic experts to
advise the Secretary on whether to adjust. Stip. at 4-5.

The defendants adopted and promulgated the
required guidelines, but the plaintiffs challenged them as
inadequate, and they also sought a declaratory judgment
that a statistical adjustment would not violate the
Constitution or any federal statute. Defendants countered
that the plaintiffs’ challenge to the census presented a
non-justiciable political question. This Court rejected the
defendants’ political question claim, and concluded that
statistical adjustment, per se, would not violate either the
Constitution or the laws of the United States. City of
New York II, 739 F.Supp. at 767-68. This Court noted
that, while the guidelines were vague, they did satisfy,
albeit just barely, the defendants’ obligations under the
Stipulation. Jd. at 770.

The Post-Enumeration Survey

Following this Court’s decision in City of New York
1, the Bureau resumed work on its plans to implement the

"By agreement, the Secretary chose four members of
the Panel from a list of seven candidates submitted by the
plaintiffs, and chose the four remaining Panel members
himself. The Stipulation required the Panel members to
be “of such knowledge, judgment and probity that their
judgment and advice shall be entitled to the utmost
respect by defendants." Stip. at 5. The four panel
members chosen from the plaintiffs’ list were Eugene P.
Ericksen, Leobardo F. Estrada, John W. Tukey, and Kirk
M. Wolter. The four panel members chosen unilaterally
by the Secretary were William Kruskal, Michael
McGeehee, V. Lance Tarrance Jr. and Kenneth M.
Wachter. As required by the Stipulation, the Panel
members submitted recommendations to the Secretary
regarding the decision on whether to adjust. Stip. at 5.

App. 56

PES, and implemented it in 1990. In the first step of the
PES, the Bureau methodically selected approximately
5000 blocks’ in an effort to attain an appropriate sample
size for each poststratum. In February 1990, Bureau
employees visited each sample block and listed all the
housing units they found, identifying approximately
170,000 households. In July 1990, Census Bureau
interviewers returned to each address to obtain
information regarding the residency status of those
households on Census Day. The Bureau found that those
blocks contained approximately 400,000 people. Tr. at
208. After collecting the PES data, the Bureau matched
it to the information collected in the original enumeration
for those same sample blocks. From this matching, the
Bureau endeavored to estimate, for each poststratum,
rates of omission and erroneous enumeration, and from
these calculated a net undercount rate for each
poststratum. Tr. at 221.

The Bureau used these results to develop an
“adjustment factor" for each poststratum, i.e., the number
by which the population count as indicated by the census
had to be multiplied so that the entire census would
reflect the variations found in the PES. Accordingly, the
1,392 poststrata resulted in 1,392 corresponding
adjustment factors. One further statistical twist to the

*As used here, "block" means a square block; that is,
all the buildings on four streets forming a square. Tr. at
209. The Census Bureau made a list of the more than
5,000,000 blocks in the United States and then selected
approximately 5,000 that they believed fairly contained
representative samples of the 1,392 poststrata. Tr. at
208; Decision at 4-11-4-12.

App. 57

use of the PES was the employment of "smoothing.""°
After smoothing, the Bureau used the smoothed
adjustment factors to produce adjusted counts down to the
block level, which were then aggregated to provide

Smoothing is a statistical procedure used to reduce
the effects of sampling error. More particularly, it seeks
to reduce the difference between the results from the PES
sample and the results one would receive if one were able
to survey the entire population. Smoothing in the 1990
census took place as follows. First, the 1,392 raw
adjustment factors with corresponding raw variances
(measures of sampling error) were compiled. The Bureau
then employed pre-smoothing, or "modelling the variance,"
in an attempt to improve the accuracy of the estimates of
the variances of the raw adjustment factors. Tr. at 796.
Once modelling the variance was completed for each raw
adjustment factor, a regression was performed. This
regression moved the raw adjustment factor for each
poststratum towards a typical value by an amount
depending on the sampling error associated with that
particular poststratum. Thus, where a particular raw
adjustment factor had a small variance (i.e., where the
sample was very large), it would be moved only a small
amount, whereas raw adjustment factors with larger
variances tended to be moved more. Carrier variables
relating to raw adjustment factors were selected in an
effort to give the best estimate of the typical value. Tr.
807. These carrier variables included the same
characteristics that defined the post-strata, such as age,
sex, race, owner/renter, and other characteristics such as
mail return rate. The end result is that the 1,392 raw
adjustment factors became 1,392 smoothed adjusted
factors. The census count for each postratum group was
then multiplied by its smoothed adjustment factor and
adjusted census counts were produced. Tr. at 788-89;
Decision at 4-17-4-18.

App. 58

population estimates for cities, counties, states, and the
nation. Tr. at 224-25; Decision at 4-18.

A number of quality control checks were made to
test the resuits of the PES. First, the Bureau conducted
or commissioned more than twenty formal research
projects, called "P-Studies," to study the potential sources
of error within the PES. The results of these P-Studies
regarding particular sources of error were then combined
in the “total error model" thet s:zmmarized the overall
quality of the PES data. Tr. at 602-59."

The final result of the PES was that the census
enumeration was estimated to have undercounted the
population by 5,269,917, or 2.07%. In terms of the
differential undercount, the PES indicated that the census
undercounted Hispanics by 5.2%, African-Americans by
4.8% and Asian/Pacific Islanders by 3.1%. The
PES-calculated undercount for non-African-Americans was
1.7% and 1.2% for non-Hispanic whites, with a total
national undercount of 2.1%."

"'The major potential sources of error arising from the
PES included: missing data, poor quality of the reported
Census Day address list, fabrication, matching error,
measurement of erroneous enumerations, balancing the
estimates of gross overcount and gross undercount,
correlation bias, small area estimation, and late census
data. Tr. at 570-73.

'*A recent “discovery of computer errors and some
statistical changes have reduced the estimates of an
undercount to 1.6 percent, about the same as in 1980."
Felicity Barringer, U.S. Population Passes 265 Million,
Bureau Says, N.Y. Times, December 30, 1992, at A12. As
one of the witnesses testified here, "statistics is never
having to say you're certain." Tr. at 1922.

App. 59

The Bureau also conducted a number of "loss
function analyses" to compare the quality of enumeration
counts to the adjusted counts. A loss function analysis is
a systematic way of assessing the consequences flowing
from a particular decision. In the context of the
adjustment decision, the Bureau used loss function
analysis to determine whether the adjusted data were
expected to be more accurate than the unadjusted data.
Tr. at 1941-42. This Court is satisfied that for most
purposes the PES resulted in a more accurate--or to be
statistically fashionable, a less inaccurate--count than the
original census.

The Secretary’s Decision and The Trial

Prior to reaching his decision, Secretary Mosbacher
received the recommendations of the eight Panel
members. Perhaps not surprisingly, the Panel was
deadlocked: the four members selected from the plaintiffs’
list recommended in favor of adjustment, while the four
members chosen unilaterally by the Secretary
recommended against it. Decision at 1-3. The USC voted
7-2 in favor of adjustment. Jd. The Under Secretary of
Commerce for Economic Affairs and the Administrator of
the Economics and Statistics Administration voted against
adjustment. Defendants’ Exhibit 1 at 898. Finally, the
Director of the Census, Dr. Barbara Bryant recommended
in favor of adjustment, but acknowledged that "[t]here is
no perfect truth as to the size and distribution of the
population,” and that “[aJdjustment is an issue about
which reasonable men and women and the best
statisticians and demographers can disagree. The
minority viewpoint expressed in the Census Bureau’s
report ... illustrates this." Id. at 1118-19."

Dr. Bryant’s comments in a year-end interview are
enlightening. See Barringer, supra note 12. In that
interview “she said [that] while the statistical tools were

App. 60

On July 15, 1991, in accordance with the
Stipulation, Secretary Mosbacher went on national
television to announce his decision not to adjust.
Simultaneously, he produced the Decision, a 178-page
report giving the reasons for his decision. The decision
revitalized the case and discovery resumed. Claiming that
the Secretary's decision violated the Constitution, the
APA, and the Stipulation, the plaintiffs requested a trial.
More specifically, they alleged that the administrative
record proffered by the Secretary as the basis of his
decision is a_ self-serving, post-hoc compilation of
documents assembled for the purpose of strengthening the
defendants’ litigation position and that the Secretary's
decision was tainted by partisan political influence. Over
the defendants’ objection, this Court ordered a trial, which
consisted almost exclusively of expert testimony in the

available to make these adjustments for small
geographical units, the necessary tools to double-check the
findings were inadequate. In the face of legal scrutiny
she said, this made a decision to adjust untenable." She
is also quoted as stating that "[e]very number has to
become defensible,” and "[w]hen you say--you know how
to do it but you can’t prove its right or wrong--then it’s no
longer defensible. If it weren’t for the problem that we
had to defend it in court, there would have been a strong
inclination to have adiusted....”"

Dr. Bryant also opined that she believed that an
adjustment would have improved the accuracy of counts
at " the national and state levels, the big levels,” but that
the PES results were "very inconclusive’ when used for
smaller subdivisions of the population." /d.

App. 61

fields of demographics and statistics, and continued for
thirteen trial days."*

The expert witnesses expressed their opinions as to
whether the Secretary considered all the factors specified
in the guidelines in making his decision, and also
analyzed at length the conclusions that the Secretary
reached in the Decision. Plaintiffs’ direct case consisted
of the testimony of nine witnesses, including all four of
the plaintiffs’ designees to the Panel. It also included the
introduction of hundreds of exhibits and numerous
deposition transcripts from other witnesses.

Defendants’ evidence was similarly grand in scope.
They presented five expert witnesses, including one Panel
member. They also introduced the deposition transcripts
of other witnesses and numerous exhibits. Of these,
Exhibit 1, denominated as the Administrative Record by
the defendants, and skeptically dubbed "the so-called
Administrative Record" by the plaintiffs, contains over
12,000 documents and occupies 18,000 pages. The trial
transcript exceeds 2,600 pages.

DISCUSSION
Plaintiffs allege that the Secretary’s decision not to

adjust the census count violates the APA, the
Constitution, and the Stipulation.” They also argue

‘Before trial, two other cases presenting the identical
issue in this case were transferred and consolidated with
this action--City of Atlanta v. Mosbacher, 92-CV-1566;
Florida House of Representatives v. Franklin, 92-CV-2037.

‘Plaintiff Hudson County, New Jersey, also claims
that the decision against adjustment violated the Voting
Rights Act, which provides that:

App. 62

that the process the Secretary used to make his decision
was a sham.” They seek an order directing the

No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed
or applied by any State or political subdivision in
a manner which results in a denial or abridgement
of the right of any citizen of the United States to
vote on account of race or color, or in contravention
of the guarantees set forth in section 1973b(f)(2) of
this title, as provided in subsection (b) of this
section.

42 U.S.C. § 1973(a) (1982) (emphasis added). The Court
rejects this claim because it is close to frivolous. By its
plain language, the Voting Rights Act applies only to
misconduct by states or their political subdivisions. See
Senate of California v. Mosbacher, 968 F.2d 974, 979 (9th
Cir.1992) (argument that Voting Rights Act contemplates
suits against the federal government is "severely flawed"),
Tucker v. United States Dep’t of Commerce, 958 F.2d 1411,
1414 (7th Cir.) ("The plaintiffs cannot be serious in
arguing that the refusal to adjust the headcount violates
the Voting Rights Act."), cert. denied, ___ U.S. __, 113
S.Ct. 407, 121 L.Ed.2d 332 (1992).

‘Plaintiffs assert that Secretary Mosbacher was
closely aligned with the Republican Party and, therefore,
never seriously considered adjustment in the belief that
adjustment would favor Democratic politicians. They also
argue that contacts made by then-White House Chief of
Staff John Sununu and a member of his staff to
Commerce Department officials other than Mr. Mosbacher
tainted the decision. I have reviewed these allegations in
detail. While it does appear that Mr. Sununu and his
subordinates expressed their contempt for adjustment to
Department of Commerce personnel, I cannot, on the
record before me, conclude that such contacts represented

App. 63

Secretary of Commerce to make the adjustment and they
ask for permission to use Census Bureau data provided to
them by the defendants during the course of this litigation
— a protective order, and to release that data to the
public.

I. The APA Standard of Review--Finality

The standard by which the Court reviews the
Secretary's decision not to adjust should be stated at the
threshold. At a previous stage in this litigation, this
Court announced that “the arbitrary and capricious
standard as set forth in § 706 of the APA will guide my
review of the Secretary's determination." City of New
York I, 713 F.Supp. at 54.

Defendants now contend that the plaintiffs’ claim
under the APA and, with it, this Court’s decision to
review the Secretary's decision under the arbitrary and
capricious standard, have been vitiated by the Supreme
Court’s recent decision in Franklin v. Massachusetts, __
U.S. __, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). There,
Massachusetts challenged the Census Bureau’s method for
counting federal employees serving overseas, alleging that
it was arbitrary and capricious, and, as such, a violation
of the APA. Massachusetts also asserted that the method
violated the constitutional requirements for conducting a
decennial census and damaged it because it changed the
congressional apportionment, moving one representative
pry 3 Massachusetts to Washington. Id. at__, 112 S.Ct.
at 2770.

improper influence. Moreover, the plaintiffs’ attack on the

integrity of Mr. Mosbacher--who was never a party to

amen conversations--does not warrant extended discussion
ere.

App. 64

Refusing to address the APA claim, the Supreme
Court concluded that the Secretary's determination was
not "final" because, in the context of apportionment, the
Secretary simply reports the results of the census to the
President, who in turn transmits the apportionment for
each state in the House of Representatives to the Clerk of
the House. The Court reasoned that because "there is no
statute that rules out an instruction by the President to
the Secretary to reform the census, even after the data is
[sic] submitted to him," the Secretary’s decision as to how
foreign federal employees are counted is “like the ruling
of a subordinate official," and, therefore, not final for
purposes of APA review. Id. at __, 112 S.Ct. at 2774
(citation omitted).

Defendants believe that the same rationale that led
the Supreme Court to reject the APA claim in Franklin v.
Massachusetts, an apportionment case, applies with equal
vigor here. I disagree. The Supreme Court held that the
Secretary’s acts in conducting the census and reporting
the counts to the President were not "final," for purposes
of challenging apportionment. That case did not involve
a situation where, as here, plaintiffs challenge the counts
as they are used for intra-state redistricting and for
federal fund allocation. See City of New York I, 713
F.Supp. at 50. Neither of these purposes requires the
Secretary to transmit the counts to the President before
publishing them or transmitting them to census data
users.'’ The Secretary's reporting of the counts for those

"With respect to redistricting, 13 U.S.C. § 141(c)
provides, in pertinent part, that:

Tabulations of population for the areas identified
in any plan approved by the Secretary shall be ...
reported to the Governor of the State involved and
to the officers or public bodies having responsibility
for legislative apportionment or districting of such
State....

ee

App. 65

purposes, accordingly, is final agency action for purposes
of APA review. As Justice Stevens explained in Franklin:

Even in the Court’s view, the Secretary's report of
census information to recipients other than the
President would certainly constitute "final agency
action." The Court’s decision thus appears to
amount to a pleading requirement. To avoid the
bar to APA review that the Court imposes today,
litigants need only join their apportionment
challenges to other census-related claims.
Notwithstanding the Court’s novel reading of the
statute, in view of the Secretary's insistence on
unitary census data, relief on any census claim
would yield relief on all other claims.

Franklin, _ US. at ,n. 14, 112 S.Ct. at 2783, n. 14
(Stevens, J., concurring).

Accordingly, I adhere to my earlier decision that
the APA governs the Secretary’ decision. Hence, the
question for review is, as the plaintiffs have pithily stated,

Id. With respect to the plaintiffs’ claim based on
allocation of federal funds, the following statutes provide
for direct reporting of census data by the Secretary of
Commerce, without the President either acting as an
intermediary or retaining final discretionary authority to
report the counts: 42 U.S.C. § 9831 et seg. (Head Start
program); 42 U.S.C. § 702 (Maternal and Child Health
Services Block Grant); 42 U.S.C. § 5632 (Juvenile Justice
and Delinquency Prevention Program); 42 U.S.C. §§ 3024,
3028(b) (Programs for Older Americans); 23 U.S.C. §
104(b6) (Highway Planning and Construction); 49
U.S.C.App. § 1607a (Urban Mass Transportation Capital
and Operating Assistance programs).

App. 66

“whether the Secretarys application of the decision
guidelines, as construed in light of constitutional
requirements, to reject the [adjusted] counts is arbitrary
and capricious.""* Plaintiffs’ Brief at 148.

II. The Constitutional Requirements

In Franklin v. Massachusetts, the Supreme Court
reminded us that in making decisions regarding the
census, "the Secretary’s interpretation [of Art. I, § 2, ci. 3]
{must be] consistent with the constitutional language and
the constitutional goal of equal representation." ___ U.S.
at __., 112 S.Ct. at 2777. The language of the

'8Plaintiffs also contend that the Secretary's decision
was arbitrary and capricious independently of the
Stipulation, because it conflicted with a Department
Organization Order in which the Secretary delegated
authority to conduct the Census to the Director of the
Census Bureau. Department of Commerce Organization
Order 35-2A, August 4, 1975, as updated July 24, 1987.
I find this argument unpersuasive. While the Secretary
did delegate his statutory duty to take the decennial
census, he also required the Director of the Census
Bureau to "report and be responsible to the Assistant
Secretary for Economic Affairs," a position which
subsequently became the Under Secretary for Economic
Affairs. Id.; 15 U.S.C. § 1503a. The Secretary further
directed the Under Secretary for Economic Affairs to
"exercise policy direction and general supervision over ...
the Bureau of the Census." Department of Commerce
Organization Order 10-9, § 4.03, June 26, 1984. Thus,
while delegating the operational responsibility necessary
to prepare and conduct the census, the Commerce
Department retained the authority to control policy
direction, to exercise decision-making authority in
significant Bureau matters, and to supervise the Bureau
in the exercise of its census-taking task.

App. 67

Constitution is beguilingly simple: "The actual
enumeration shall be made ... in such manner as [the
Congress] shall by Law direct."

While the defendants contend that the phrase
“actual enumeration" bars adjustment, I have previously
concluded "that because Article I, § 2 requires the census
to be as accurate as practicable, the Constitution is not a
bar to statistical adjustment." City of New York II, 739
F.Supp. at 767; cf. Kirkpatrick v. Preisler, 394 U.S. 526,
530, 89 S.Ct. 1225, 1228, 22 L.Ed.2d 519 (1969) ("[t]he
whole thrust of the ’as nearly as practicable’ approach is
inconsistent with adoption of fixed numerical standards
which excuse population variances"); Wesberry v. Sanders,
376 U.S. 1, 7-8, 84 S.Ct. 526, 530, 11 L.Ed.2d 481 (1964)
("as nearly as is practicable one man’s vote in a

congressional election is to be worth as much as
another’s").

The defendants also claim that judicial scrutiny of
the Secretary's decision for accuracy is inappropriate after
the Supreme Court’s recent decision in United States
Dep’t of Commerce v. Montana, __ US. wore fT
1415, 118 L.Ed.2d 87 (1992). In Montana, the state
challenged a federal statute governing the method by
which Representatives are allocated to the states because
it resulted in giving Montana only one congressional! seat,
although its population was significantly higher than that
of the average congressional district in the nation. The
Court rejected the challenge, noting that "although
common sense supports a test requiring a good faith effort
to achieve precise mathematical equality within each
State, the constraints imposed by Article I, § 2, itself
make that goal illusory for the nation as a whole." Id. at
—__, 112 S.Ct. at 1429 (emphasis in original) (citation
omitted). The specific constraints making mathematical
precision illusory on the national level were "[t]he -
constitutional guarantee of a minimum of one
Representative for each State," and "the need to allocate

App. 68

a fixed number of indivisible Representatives among 50
states of varying populations." Id. ,

I reject the government’s argument that Montana
mandates a departure from my earlier conclusion that the
Secretary of Commerce must conduct the census in a
manner to render it as accurate as practicable. First, the
constitutional constraints that warranted departure from
that standard in Montana are not present here. Second,
in Montana, the Court noted that Art. I, § 8, cl. 18, of the
Constitution "expressly authorizes Congress to enact
legislation that ’shall be necessary and proper’ to carry
out its delegated responsibilities." Jd. Here, no
constitutional provision requires similar deference to the
Secretary's decision. Finally, the Montana case involved
a challenge to a census procedure only as it related to
apportionment, not as it related to intra-state
redistricting. Here, by contrast, the decision on whether
to adjust the 1990 census had profound effects on
intra-state redistricting because the adjusted counts
would change not only national and state population
figures, but the counts for political subdivisions within
states, such as cities and counties. Because the
implications of the Secretary's decision at issue here are
fundamentally different from the federal statute at issue
in Montana, I adhere to my earlier conclusion that the
Secretary must assure that the census be as accurate as
practicable.

The conclusion that the Secretary must provide the
most accurate census practicable however, does not, lead
inexorably to the conclusion that a decision against
adjustment is therefore unconstitutional. In deciding
whether the Secretary's decision was arbitrary and
capricious in light of the requirement that the decision
provide the most accurate census practicable, the Court
must turn to the Secretary's consideration of the
guidelines, which help to illuminate the meaning of both
“accuracy” and "practicability."

App. 69

III. The Guidelines

An agency decision is arbitrary and capricious "if
the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation
for its decision that runs counter to the evidence before
the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise." Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77
L.Ed.2d 443 (1983). Here, the analytical scaffolding for
review of the Secretary’s decision is established by the

guidelines promulgated in accord
Stipulation." SS

The Stipulation provided that the Secre

retained all authority and decision-making cae
including without limitation the decision whether or not
to adjust the 1990 Decennial Census." Stip. at 1. It also
required the defendants to "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 courts." Stip. at 3. Accordingly, the
defendants promulgated the following eight final
guidelines to serve as the grid against which the
Secretary's decision must be measured:

1. The Census shall be considered the most accurate
count of the population of the United States, at the
national, state, and local level, unless an adjusted

WA discussion of how the guidelines were formulated,
considered, and ultimately promulgated may be found in
the earlier opinion in which I rejected a challenge to their

a City of New York II, 739 F.Supp. at 769 & n.

App. 70

count is shown to be more accurate. The criteria
for accuracy shall follow accepted statistical
practice and shall require the highest level of
professional judgment from the Bureau of the
Census. No statistical or inferential procedure
may be used as a substitute for the Census. Such
procedures may only be used as supplements to the
Census.

The 1990 Census may be adjusted if the adjusted
counts are consistent and complete across all
jurisdictional levels: national, state, local, and
census block. The resulting counts must be of
sufficient quality and level of detail to be usable for
Congressional reapportionment and legislative
redistricting, and for all other purposes and at all
levels for which census counts are published.

The 1990 Census may be adjusted if the estimates
generated from the pre-specified procedures that
will lead to an adjustment decisio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0593%3A03. Public record. Not legal advice.