Appendix — Wisconsin v. City of New York

Court,

FILED

941631 APR 4 - 1995

QEFICE @E IHE CLERK

No. 94-

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

STATE OF OKLAHOMA,

Petitioner,

Vv.

CITY OF NEW YORK, et ai.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

ROBERT D. NELON

Counsel of Record

DON G. HOLLADAY

ANDREWS DAVIS LEGG BIXLER

MILSTEN & PRICE

500 West Main

Oklahoma City, Oklahoma 73102

(405) 272-9241

April 4, 1995 Attorneys for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

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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)) ............. 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-46

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-104

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-130

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

(56 Fed. Reg. 33,582 (July 22, 1991)) .......

ORDER, United States Court

of Appeals for the Second Circuit,

a

ORDER, United States Court

of Appeals for the Second Circuit,

rere

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 GONZALES;

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

App. 2

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,

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 COLUPABIA;

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,

——— a —e_ws Om —

edietiett A A TT —

App. 3

COUNTY OF HUDSON, NEW JERSEY,

Intervenor-Plaintiff,

--V_--

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. ANDERSON, As Clerk of the

United States House of Representatives; MICHAEL 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.

App. 4

KEARSE, Circuit Judge:

Plaintiffs City of New York ef 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, 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

comp)zint 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

“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. 5

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 ef 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.

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 III"), familiarity with which

is assumed. The following description is taken largely from

App. 6

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

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

~~

App. 7

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 interna! 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 sn Undercount Research Staff to consider the

App. 8

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. 9

category. These categories, or "poststrata," were defined by

age, sex, race, Hispanic origin, housing tenure, type of

: environment (¢.g., urban or rural), and geographic region.

This categorization resulted in a total of 1,392 exhaustive

and mutually-exclusive poststrata. In addition, anomalous

results in the PES were to be addressed by statistical

"smoothing," a procedure designed to minimize the effects

of sampling error by reducing the difference between the

results produced by PES sampling and the results that would

be obtained if one were able to survey the entire population.

= 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

County, Florida, the National League of Cities, the League

of United Latin American Citizens, the National Association

for the Advancement of Colored People, and numerous

individuals. The original plaintiffs were eventually joined by

interveaing plaintiffs that included more than a dozen other

cities, the States of Texas, New Jersey, Florida, Arizona,

1 epee ee

App. 10

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. 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. /d. 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

anteater ieee

App. 11

decision whether or not to adjust the 1990 Decennial

Census;

the Secretary of Commerce intends that the 1990

Decennial Census shall be conducted in conformity

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 a 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 4 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

App. 12

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. 4 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 or not

to Carry Out a Statistical adjustment of the 1990 Decennial

Census." (Jd. 4 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 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 [G]uidelines,

... 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.” (Jd.

App. 13

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 II

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:

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 procedures may only be used as

supplements to the Census.

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.

App. 14

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.

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

App. 15

shall be a factor in the Cecision. 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 requested 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.

The district court rejected defendants’ contention that

these motions presented nonjusticiable issues, and it granted

plaintiffs’ request for a declaration that statistical adjustment

would not of itself violate either the Constitution or the laws

of the United States, see NYC v. DOC IJ, 739 F.Supp. at

767. As to the attack on the Guidelines, the court ruled that,

while they were vague 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.

App. 16

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 the 1989 Stipulation.

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

Bureau would rely on the mail return of those questionnaires

to count most of the population, an accurate and

comprehensive list was vital. In constructing the list, the

Bureau relied primarily on commercial mailing lists,

supplemented by extensive field research and collaboration

with the United States Postal Service. Numerous quality

controls were instituted to improve the accuracy of the list.

Step two was the "mail out/mail back" phase, in

which census questionnaires were mailed to each housing

unit, and members of each household were asked to

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

included a general advertising campaign; campaigns

specifically directed at African-Americans, Hispanics,

Asian-Pacific Islanders, and Native Americans: publication

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

App. 17

believed that the normal procedure would be particularly

The return rate of questionnaires 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 atterapts 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 (1) 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 a...

add 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

App. 18

Bureau's follow-up efforts in phase four added 5.4 million

people, bringing the total count 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 cities,

counties, states, and the nation. The Bureau then

App. 19

implemented quality-control checks, including more than

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 by 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.

App. 20

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 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 direct evidence that the

adjusted counts would be more accurate. He stated that

while at the state and local levels the statistical analyses had

not been completed, “the total error model" Suggested that

"the adjusted figures tend to be too high.” The Secretary

acknowledged, however, that the adjusted figures were

"generally closer in numeric terms to the true population

than the census counts which tend to be too low.” (/d. at

2-1.) The Secretary also recognized that up to 2/3 of the

population "lives in jurisdictions where the adjusted counts

appear more accurate,” and that only "one third of the

App. 21

population lives in areas where the census appears more

accurate." (/@. at 1-5.) He concluded, however, that "(t)he

loss function analysis and hypothesis tests that have been

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 consider

distributive accuracy--or fairness--and use reasonable

estimates of the error variance of the alternative” PES-based

adjustment. (/d. at 2-2.) The Secretary defined “distributive

accuracy” as "getting most nearly correct the proportions of

people in different areas." (/d. 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

1 ae ee

App. 22

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 recognizing that "adjustment is an

issue about which reasonable men and women and the best

statisticians and demographers can disagree" (Administrative

Record, Defendants’ Exhibit 1, at 1118), recommended in

favor of adjustment.

G. The Trial and NYC v. DOC Ill

Plaintiffs attacked the Secretary's 1991 Decision as a

self-serving, post-hoc compilation of documents assembled

for the purpose of strengthening DOC’s position, and

contended that the Secretary's decision was tainted by

partisan political influence and violated the Constitution, the

APA, and the 1989 Stipulation. After yet another

unsuccessful motion by defendants to dismiss the action on

nonjusticiability grounds, and after a consolidation of the

case with two others presenting identical issues, City of

Atlanta v. Mosbacher, 92-CV-1566, and Florida House of

Representatives v. Franklin, 92-CV-2037, a 13-day bench

trial was held. The evidence consisted chiefly of the

testimony of experts in demographics and statistics, hundreds

of exhibits, and numerous deposition transcripts.

Following the trial, the district court entered its

findings of fact and conclusions of law. Though it

confirmed its earlier ruling that it had the authority to review

the Secretary’s decision not to adjust the census, because

App. 23

"*Article 1, § 2 requires the census to be as accurate as

practicable,’" NYC v. DOC III, 822 F.Supp. at 919 (quoting

NYC v. DOC II, 739 F.Supp. at 767), and though the court

found substantial merit in plaintiffs’ contentions that the

PES-indicated adjustment in the 1990 census was warranted,

it rejected plaintiffs’ claims and dismissed the complaint on

the basis of the standard of review to be applied. See NYC

v. DOC III, 822 F.Supp. 906.

The court found that "for most purposes the PES

resulted in a more accurate--or to be statistically fashionable,

a less inaccurate--count than the original census." NYC v.

DOC III, 822 F.Supp. at 916. Plaintiffs contended that the

Secretary's finding of greater distributive accuracy in the

loss function analysis was flawed because it was based solely

on the larger number of states where greater distributive

accuracy was produced by the unadjusted count, without

regard for the fact that adjustment produced greater

distributive accuracy for the larger percentage of the nation’s

population; plaintiffs also challenged the rationality of “the

Secretary's rejection of numerous loss function analyses

performed by the Bureau supporting the superior accuracy of

the adjusted counts, and his putative concern with the

technical aspects of the PES." The court found that these

challenges constituted "a compelling attack on the Decision."

NYC v. DOC III, 822 F.Supp. at 923 (italics omitted).

However, adhering to its NYC v. DOC J ruling that

the Secretary's refusal to adjust the census was to be

reviewed under the APA’s arbitrary-and-capricious standard,

the district court concluded that it could not overturn the

Secretary's decision. The court stated that

App. 24

[t]he conclusion that the Secretary must

provide the most accurate census practicable ... 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 [G]uidelines,

which help to illuminate the meaning of both

"accuracy" and “practicability.”

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. a: 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

[p)laintiffs 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, | would probably have

ordered the adjustment. However, it is not within my

province to make such determinations. The question

Nae

App. 25

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 differential undercount, the Court

cannot, on the record before it, supplant the Secretary’s

decision." NYC v. DOC III, 822 F.Supp. at 931.

This appeal followed.

II. 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 eject the contention of

intervenors-defendants-appellees, relying on 13 U.S.C. §

195, that any statistical adjustment of the census is barred by

App. 26

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.

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.

App. 27

Section 141’s provision for sampling was added in

1976. See Pub.L. 94-521, 90 Stat. 2459 ("1976 Act").

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 call for use

of sampling. Thus, whereas the pre-1976 version of § 195

provided that statistical sampling “may” be used 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

authorize the use of sampling procedures in carrying

7 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.

App. 28

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.

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.

App. 29

B. The Standard of Review

In reasoning that the district court should have

applied a standard of review more stringent than the

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. Jd. 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

.«" dd. 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. Jd. at 7, 84 S.Ct. at $29. Noting that "[tJhe

history of the Constitution, particularly that part of it relating

to the adoption of Ar. I, § 2, reveals that those who framed

the Constitution meant that, no matter what the mechanics of

an election, whether statewide or by districts, it was

App. 30

ion 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

[wjhile 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

App. 31

scheme that had resulted in state legislative districts of

[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:

App. 32

"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

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/Reynolds v. Sims as-nearly-

as-practicable standard. The Court reject{[ed] 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

App. 33

practicable” standard. The whole thrust of the "as nearly as

practicable” approach is inconsistent with adoption of fixed

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 equal 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 practicable” standard requires that the

State make a good-faith effort « achieve precise

mathematical equality. See Reynolds v. :'ims, 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

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

App. 34

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 cf

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"

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

whieve 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

App. 35

cases” reflects an "equal protection approach"); id. at 692,

109 S.Ct. at 1437-38 (“equal protection guarantee of

"one-persor, 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 election 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 Amendment, which applies 10 thr

States, and is a component of the Due Process Clause of the

Fifth Amendment, which applies to the federal government.

See, e.g., 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 —_ standards are lacking. Judicial

standards under the Equal Protection Clause are well

App. 36

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 "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

App. 37

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, €.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 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

App. 38

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 Ill, 822 F.Supp. at 929.

A second difference between cases involving state

actors and those involving federal actors is the result of

constraints that are in part geographical. While it may be

possible for a state 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

es

App. 39

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 (zelying on

Wesberry/Reynolds v. Sims tine of cases and applying

good-faith test in challenge to federal apportionment

legislation); Franklin v. Massachusetts, --- U.S. ----, ----,

112 S.Ct. 2767, 2777, 120 L.Ed.2d 636 (1992) (reviewing

merits of census claim to “determinfe] 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, e.g., Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252,

265-66, 97 S.Ct. 555, 563-64, 50 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

App. 40

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 v. 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 by

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

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." Jd. 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|

ly’" 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, €.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

App. 42

foreseeability of discriminatory effects, see, €.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 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. Jd. 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 1.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

that

level would not lead him to an adjustment unless it

were “convincingly” shown to be not just as accurate, but

“more accurate” at every other level as well. (See, €.2.,

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 racia! minority

groups had been undercounted more severely than members

of other demographic groups; and the Census Bureau had

notec 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.

E

App. 44

not under an arbitrary-and-capricious standard of review but

rather under the more traditional standard applicable to an

equal protection claim that a 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

TIMBERS, Senior Circuit Judge, dissenting:

I would affirm on the excellent, comprehensive

opinion of Judge McLaughlin reported at 822 F.Supp. 906

App. 45

(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. 46

UNITED STATES DISTRICT COURT

EASTERN 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,

App. 47

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,

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,

°° _— oe.

App. 48

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

THE STATE OF WISCONSIN, and

THE STATE OF OKLAHOMA,

Defendants-Intervenors.

sii aieeielesiilitiasiaialitiaattaai x

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.

FLORIDA HOUSE OF REPRESENTATIVES,

FLORIDA STATE CONFERENCE,

THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE,

MIGUEL A. DE GRANDY,

App. 49

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,

-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

App. 50

the United States Department of Commerce,

Defendants.

jn 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 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)

“sitting by designation

App. 51

("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 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

App. 52

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 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.

App. 53

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 out/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 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,

‘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. 54

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. 55

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 other minorities

have been persistently undercounted to a greater degree than

*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. 56

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 census statistically in an effort to reduce the differentia!

*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. 57

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 settled

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 enumerated by the census, in order

to determine a net undercount rate.

*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 total population of fish in the

lake is therefore 1,111. Tr. at 41-42.

App. 58

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 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

*Poststratification grouped all individuals with a similar likelihood of

being counted in the census. These groups, labeled “posistrata”, were

defined by age, sex, race, Hispanic origin, housing tenure (i.¢. whether

the individual owned or rented a residence), type of place (i.¢., central

city, suburb, outside metropolitan area), and geographic region. Tr. at

$13. This cotegorination sovuleed to 8 toul of 1,592 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. 59

Commerce Department officials, who informed Keane that

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

App. 60

constitutional grounds;’ the 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 mecessary 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 (the

"While the defendants continued to argue during pretrial proceedings

challenges to the census methods employed to arrive at the apportionment

are justiciable. United States Dep't of Commerce v. Montana, U.S.

___, 112 S.Ct. 1415, 1424-26, 118 L.Ed.2d 87 (1992).

App. 61

"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 I], 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. /d. at 770.

The Post-Enumeration Survey

Following this Court’s decision in City of New York

I, the Bureau resumed work on its plans to implement the

PES, and implemented it in 1990. In the first step of 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 McGecehee,

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. 62

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 use of the PES was 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. 63

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 population estimates for cities, unties, states,

and the nation. Tr. at 224-25; Decision =: «18.

A number of quality control checks were made to test

the results 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

"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, were

a particular raw adjustment factor had a small variance (i.¢., 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 adjusiment 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 | ,392 raw adjustme:t

factors became 1,392 smoothed adjusted factors. The census count for

each postratum group was then multiplied by its smoothed adjustmeni

factor and adjusted census counts were produced. Tr. at 788-89;

Decision 4-17-4-18.

App. 64

particular sources of error were then combined in the "total

error mode!" that summarized the overall quality of the PES

data. Tr. at 652-59."

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 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

_@ 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

''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 Al2. As one

of the witnesses testified here, “statistics is never having to say you're

certain.” Tr. at 1922.

App. 65

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 sstatisticaliy 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.

Id. 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 "[a]djustment 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.” Jd. 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 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 ""[wJhen you say--you know how to do

it but you can’t prove its mght or wrong--then it’s no longer defensible.

If it weren't for the problem that we had to defend it in court, there

App. 66

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 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

would have been a strong inclination to have adjusted....'"

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.” Jd.

“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.

App. 67

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 that the process the

‘Plaintiff Hudson County, New Jersey, also claims that the decision

against adjustment violated the Voting Rights Act, which provides that:

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

(%h Cir.1992) (argument that Voting Rights Act contemplates suits

App. 68

Secretary used to make his decision was a sham.’ They

seek an order directing the 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 under 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.

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, a

___» 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. |

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, | cannot, on the record before me,

conclude that such contacts represented improper influence. Moreover,

the plaintiffs’ attack on the integrity of Mr. Mosbacher--who was never

a party to these conversations--does not warrant extended discussion here.

App. 69

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 from

Massachusetts to Washington. /d. at__, 112 S.Ct. at

2770.

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

App. 70

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 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

}

os

"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...

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 ef 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(b)(6) (Highway Planning and Construction); 49 U.S.C.App. § 1607a

(Urban Mass Transportation Capital and Operating Assistance programs).

App. 71

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, U.S.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's decision. Hence, the question

App. 72

for review is, as the plaintiffs have pithily stated, “whether

the Secretary's 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.

Il. 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, cl. 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 Constitution

is beguilingly simple: “The actual enumeration shall be

“Plaintiffs also contend that the Secretary's decision was arbitrary

and capricious independently of the Supulation, 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

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. 73

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 US. 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, _U.S.__, 112 S.Ct. 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

precise

imposed by Article I, § 2, itself make that goal illusory for

the nation as a whole.” Jd. at , 112 S.Ct. at 14

(emphasis in original) (citation omitted) The fj

constraints making mathematical precision illusory on the

App. 74

national level were "[t)he constitutional guarantee of a

minimum of one Representative for each State," and "the

need to allocate a fixed number of indivisible Representatives

among 50 states of varying populations." Jd.

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 Ar. 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, 1 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

App. 75

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.”

Ill. 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 accordance

with the Stipulation."

The Stipulation provided that the Secretary retained

all authority and decision-making power, "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

'%~ 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 sufficiency. City of New York Il, 739

F.Supp. at 769 & n. 9.

App. 76

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

count is shown to be more accurate. The criteria for

accuracy shall follow accepted statistical practice and

shall require the highest level of professional

j gment 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 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

, and to variations in the statistical models

used to generate the adjusted figures.

App. 77

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.

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 lying behind the adjustment

decision shall be in keeping with professional

standards of the statistical community.

City of New York II, 739 F.Supp. at 769 (emphasis in

original).

"Most of these guidelines are embroidered with an

accompanying ‘explanation.’" Jd. The Decision discussed

App. 78

each of the guidelines in detail, and concluded that numbers

1, 2, 3, 4 and 7 militated against an adjustment, while

numbers 5, 6, and 8 did not tilt either way. The plaintiffs

argue that the conclusions reached by the Secretary with

respect to guidelines 1, 2, 3, 4 and 7 are the result of

implausible assumptions, unwarranted speculation, and

misuse, misstatement, and disregard of the evidence.

Guideline One

Guideline One, establishes the point of departure for

analysis of the adjustment question. It mandates that the

actual count be considered the most accurate count of the

population “at the national state and local level, unless an

adjusted count is shown to be more accurate."

To test the accuracy of the adjusted counts against the

actual enumeration, the Decision referred to a population

measurement technique that the Census Bureau had used,

Demographic Analysis ("DA"). Decision at 2-9. DA

estimates the population, and the subpopulations of particular

groups, through administrative records such as birth and

death certificates, and immigration statistics. /d. The

Secretary conceded "that the PES and DA estimates are not

far apart in a statistical sense," but found "some important

and puzzling differences," which “lead to sharply different

conclusions” and raise some “question” as to "whether the

adjusted figures are more accurate than the census count

even at the national level." /d. at 2-10, 2-35.

Among the specific problems that the Secretary noted

were: (1) that the overall undercount rate inferred from

comparing the actual enumeration to DA (1.85%) is smaller

than that inferred from the PES (2.07%), a result contrary

App. 79

to intuitive expectation;” (2) that, at the national level, there

were instances where a PES-based adjustment would move

sub-population totals in the opposite direction from that

indicated by DA;?' (3) that PES would add 1,055,826 more

females than DA indicates should be added; and (4) “that al!

groups of black males (except those aged 10-19) are

substantially undercounted by the PES relative to DA.”

Decision at 2-10.

In addition to a comparison with DA, the Secretary

also discussed a number of other statistical techniques that

were used to gauge the accuracy of the PES counts when

compared to the census results. He conceded that the

PES-adjusted estimates might reflect more accurately the

total population, and the racial and ethnic subpopulations of

the country, and that “[a}t the State and local level.... the

adjusted figures tend to be too high, but generally closer in

*According to the Secretary, DA would normally be expected to

reveal a higher undercount rate when compared to the Census than the

PES would, because the PES and Census will both miss people who are

difficult to survey, while DA, which relies solely on an examination of

records, will not. Decision at 2-10.

"'Some examples of this problem cited by the Secretary are:

An adjustment based on the PES will add 180,318 non-black

males aged 10-19, while the DA indicates 136,908 should be

deleted--a difference in the wrong direction of 317,226.

An adjustment based on the PES will delete 91,631 males over

the age of 65, while DA indicates that 192,950 should be

added--a difference in the wrong direction of 284,541 persons.

An adjustment based on the PES will delete 245,253 females

over the age of 45 while DA indicates 146,255 should be

added--a difference of 391,508 persons in the wrong direction.

Decision at 2-12 (footnotes omitted).

App. 80

numeric terms to the true population than the census counts

which tend to be too low.” Jd. at 2-1. He concluded,

however, that "[t}he loss function analysis and hypothesis

tests that have been 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 consider distributive accuracy--or fairness--and use

reasonable estimates of the error variance of the alternative

(PES-based adjustment]." /d. at 2-2.

He also expressed concern that there was little or no

direct evidence that the adjusted counts led to greater

‘distributive accuracy at local levels. On that basis, the

Secretary concluded that Guideline One militated against

adjustment hecause “acceptance of adjusted counts as more

accurate requires not only that the counts themselves be

shown to be more accurate, but that the distribution of those

counts across the United States reflect more accurately the

distribution of the population.” Jd. at 2-8 (emphasis in

original).

As support for these concerns, the Secretary

discussed a Census Bureau loss function analysis that

measured the number of individual states whose population

would be made less accurate by adjustment than by using the

census count. As conducted by the Bureau, the loss function

indicated that 21 states’ population shares would be made

adjustment. Jd. at 2-30. The Secretary similarly expressed

his trepidation that there was insufficient evidence to support

App. 81

the greater distributive accuracy of the adjusted counts at the

local level. Jd.

In his consideration of Guideline One, the Secretary

also expressed serious concern over the methodology by

which the PES was taken, and the manner in which the

adjusted counts were tabulated.” He was particularly

discomfited by the manner in which unresolved cases in the

PES were treated because the Bureau had to determine

whether people found in the PES were also found in the

census in order to compute dual system estimates for the

poststrata. Such determinations were made by “matching”

census forms to PES forms for the same household. A

household survey in the PES that was "matched" to the

census record of that residence meant that there was no error

in the census enumeration of that household. A non-match

meant an undercount. Decision at 2-16. Because there were

cases where incomplete census and PES forms made such

matching impossible, the Bureau was forced to employ a

mathematical model to impute enough missing characteristics

to enable it to make a match determination. Even after that

imputation was complete, there were people found in the

PES for whom it was impossible to determine whether they

matched people counted in the census, and vice-versa. In

those cases a different set of formulas was used to impute

match status.

“among other things, the Secretary was troubled by the effects that

erroneous enumerations in the census, correlation basis, and failure in the

PES total error model could have on the adjusted counts. /d. at 1-17-23.

The proof at trial, however, has made it clear that these matters were

peripheral to the Secretary's conclusion under Guideline One, and

therefore do not merit significant discussion here.

App. 82

The Secretary concluded that, “[iJn general, missing

data were not found to be.a serious problem,” but identified

several areas of concern with the imputation process. First,

he noted that while the rates of imputation in the P and E

samples” were low--1.7% and 2.1% respectively--weighted

up to the national population they represented almost nine

million people, a number almost twice as large as the net

national undercount. Decision at 2-16. Second, in noting the

high correlation between imputation ratios and undercount

ratios, he stated that "the strata for which there is more

doubt about the quality of the adjusted data because of

imputation tend to be the same strata for which an

adjustment would result in large increases in the population.

Id. Finally, the Secretary noted that the assumptions in the

imputation models were largely untested. Decision at 2-17.

His concern was exacerbated by his respect for the research

of Panel member Kenneth Wachter, which indicated that

flaws in the imputation model could render the adjusted

counts “significantly in error."

Based on all the foregoing, the Secretary concluded

that there was simply uot enough convincing evidence to

support a finding that the adjusted counts would lead to

greater distributive accuracy than the census counts, and

therefore that the guideline "weigh{ed] in favor of a decision

not to adjust." Jd. at 2-36.

The plaintiffs assail this conclusion on several

grounds. First, they argue that the Secretary misused DA

In the jargon of the DSE, the “P sample” represented the group

surveyed by the PES. The “E sample” represented the people living in

the same household as the P sample as counted by the census. Decision

at 4-12-4-13.

App. 83

because that technique has historically been most accurate as

a “yardstick of the census in terms of national undercount

and as a measure of differential undercount between

demographic groups,” but "is much less reliable in its ability

to estimate an undercount rate for a specific group in a

particular census,” as the Secretary attempted to use it.

They contend that the Secretary's focus on discrepancies

between PES and DA undercount rates for certain specific

groups is an attempt to obfuscate the fact that, as the

Secretary himself admits, the "detailed analysis shows that

the PES and DA estimates are not far apart in a statistical

sense." Decision at 2-10.

With respect to the Secretary's professed concern

over distributive accuracy, the plaintiffs contend that the

Secretary's invocation of a loss function that merely counted

up the number of states whose populations would be made

less accurate, regardless of the greater aggregate accuracy of

the adjustment, and without reference to the extent that

counts are made less accurate, is statistically insupportable.

They also argue that the Secretary's rejection of numerous

loss function analyses performed by the Bureau supporting

the superior accuracy of the adjusted counts, and his putative

concern with the technical aspects of the PES are irrational

at best, and disingenuous at worst.

I have reviewed in some detail the Secretary's

conclusion that Guideline One militated against adjustment

and the plaintiffs’ arguments to the contrary. While the

plaintiffs have made a compelling attack on the Decision,

and the Secretary has conceded that the objective criteria

used to measure the adjusted counts show a greater numeric

accuracy at the national level and that the Census Bureau

estimates of distributive accuracy marginally favor the

App. 84

adjusted counts, I find that Secretary's conclusion under

Guideline One was neither arbitrary nor capricious.

The Secretary's decision to focus on distributive,

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. In that regard, I find that the Secretary's use of a

loss function that considered the number of states whose

populations would be made less accurate by adjustment to be

appropriate. Similarly, the Secretary's concern that "[w)ith

respect to places under 100,000 population, there is no direct

evidence that adjusted counts are more accurate” was

legitimate, given Guideline One's requirement that the

adjusted counts be shown to be more accurate at the local

level. Decision at 2-30.

Plaintiffs’ attack on the Secretary for subjecting the

tests favoring adjustment to unrealistically rigorous scrutiny

misconstrues Guideline One, which clearly states that "[t}he

Census shall be considered the most accurate count of the

population of the United States, at the national, state, and

local levels, unless an adjusted count is shown to be more

accurate." City of New York Il, 739 F.Supp. at 769

(emphasis added). Thus, plaintiffs’ failure to illustrate

affirmatively the superior accuracy of the adjusted counts

either (1) at any level mentioned in Guideline One, or (2) for

any reasonable definition of accuracy, is sufficient to support

a finding that Guideline One favors use of the original

census counts.

Turning to the Secretary's focus on the mechanics of

the PES and the use of imputation, I find this consideration

Guideline Two states that adjustment may be made

only if the adjusted counts are “consistent and complete

across all jurisdictional levels: national, State, local and

census block." The guideline also requires the adjusted

counts to "be of sufficient quality and level of detail to be

usable for ... all ... purposes and at all levels for which

census counts are published." Ciry of New York II, 739

F.Supp. at 769 (emphasis in Original). The Secretary

recognized that "[t}he adjusted figures ... are consistent

across all jurisdictional levels and of sufficient detail for all

purposes,” but nevertheless concluded that Guideline Two

militated against adjustment because of the questionable

quality of the adjusted counts. Decision at 2-45.

: “See the discussion of capture/recapture in note 4, supra.

App. 86

and that at broad levels such as the national and state levels

the assumption caused no serious problems, the Secretary

ultimately concluded that "local heterogeneity is a serious

problem for adjusting the 1990 census’”, and that “"[the]

evidence indicates that a substantial portion, possibly a

majority, of relative counts for district-size units can be

made worse off by adjustment.’" Decision at 2-42 (quoting

Report of Special Advisory Panel Member Kenneth Wachter,

at 26).

In reaching this conclusion, the Secretary worried that

because members of an individual poststratum might have a

different likelihood of being undercounted, thereby

debunking the homogeneity assumption, generalizing the

undercount rate of those counted in the PES to all members

of that poststratum might seriously interfere with the

accuracy of the count for some census purposes, including

redistricting. He discussed two studies conducted by the

Bureau that addressed the homogeneity assumption, and

which the Bureau had relied on in concluding that individuals

within each poststratum were sufficiently uniform to warrant

such an assumption, dubbed the "P12" and "P15" studies.

Decision at 2-38-2-40. The Secretary opined that the

Bureau's evidence from those studies was "mixed."

He was also concerned about the adverse

consequences that a failure in the homogeneity assumption

could have on adjustments at local levels, noting that because

would be adjusted based on data gathered elsewhere.

Decision at 2-43.

App. 87

The plaintiffs brand the Secretary's concern about

heterogeneity as “unreasonable.” They assert that because

perfect homogeneity is utterly unattainable in the world of

survey sampling, the relevant question is whether a departure

from the homogeneity assumption has an important impact

on the measurement. They contend that because the

assumption, and particularly because the P12 study

confirmed that the population subgroups defined for the PES

are sufficiently uniform to be usable for adjustment, there

was sufficient homogeneity to warrant the conclusion that the

adjusted counts lead to improvement.

Plaintiffs’ argument is rejected. While they have

made a strong showing that the adjusted counts are more

accurate than the original counts for most purposes for which

the census is used, the Secretary's concern that heterogeneity

may lead to less accurate counts at local levels used for

redistricting appears reasonable. Plaintiffs’ contention that

the Secretary was effectively required to bite the bullet and

ignore the problem that residual heterogeneity posed, once

the Bureau had concluded that there was sufficient evidence

to support the homogeneity assumption, ignores the

guidelines’ mandate that the Secretary determine that the

adjusted counts be usable for all purposes for which census

counts are published. Clearly, there is some likelihood that

residual heterogeneity will have an adverse effect on the

census counts when used for redistricting. This is enough to

support the Secretary's conclusion that Guideline Two

militates against adjustment. Accordingly, I find that his

conclusion was not arbitrary or capricious.

to variations in the statistical models used to generate the

(1) that the actual conduct of the DSE did not proceed

2-54-2-55.

On the first point, the Secretary recounted various

decisions that Bureau employees made after the

pre-specification of the PES, including choices about the

selection of carrier variables during the regression analysis

in the smoothing process. Decision at 2-47. He noted that

one member of the Panel who voted for adjustment had

conceded that certain pre-specified procedures had changed

during the enumeration process and had affected the PES.

Id. (citing Report of Panel Member Wolter, pp. 9-10). The

Secretary agreed with Wolter’s ultimate conclusion that the

decisions to change pre-specified procedures made during the

enumeration and the PES were treated with a high degree of

professionalism and also acknowledged that the PES could

in the world of survey sampling, “robustness” describes the

i ey and reasonableness of the results achieved by a particular

statistical technique. Robustness is determined by exposing such

statistical techniques to variations in the assumptions underlying them.

App. 89

not have been completely pre-specified, but expressed his

discomfort with the deviations as follows:

Although I believe that the decisions [to deviate from

pre-specified procedures] were made for sound

professional i

procedures. This weighs heavily against an

adjustment of the census.

Decision at 2-48 (emphasis in original).

With respect to the robustness of the results when

Subjected to alternative statistical models required by

Guideline Three, the Secretary concluded that "[t}he results

of the adjustment procedure are broadly robust at an

aggregate, national level." Jd. at 2-54. However, he found

three questionable areas where the adjustment methods

concerned him: (1) imputation; (2) poststratification: and (3)

the use of smoothing procedures.

at 2-48-2-49. With respect to poststratification, the

Secretary observed that if poststratification had

the state of residence rather than the census division of

residence as a factor, three states would have had

significantly different counts. Id. at 2-49. Finally, moving

App. 90

two-stage process, including the discretionary selection of

carrier variables, led to an impermissibly high level of

uncertainty to employ the adjusted counts as a basis for

Id. at 2-49-2-54. In short, the Secretary

stated that the lack of comprehensive pre-specification, the

possibility it raised for future political manipulation, and the

uncertainty associated with the use of extensive statistical

assumptions in the adjustment process led him to find that

Guideline Three militated against adjustment.

In their attack on this conclusion, the plaintiffs first

argue that the Secretary's concern over political manipulation

of future censuses because of the lack of pre-specification is

an inappropriate basis for making a determination under

Guideline Three. While I tend to agree with that argument,

I read the Secretary's discussion of future political

manipulation as merely an explanatory note, underscoring

why he thought that pre-specification was so significant.

Because Guideline Three clearly mandated pre-specification,

the Secretary's well-supported conclusion that the procedures

were not adequately pre-specified supported his conclusion

under this guideline.

Plaintiffs also argue that the Secretary required an

impossible degree of pre-specification because some of the

decisions to be made, including decisions relating to the

smoothing process, were highly dependent on data to be

collected during the PES, and therefore could not have been

completely pre-specified. This argument ignores the fact

that certain techniques were pre-specified and then changed

later. See Report of Special Advisory Panel Member Kirk M.

Wolter at 10. The Secretary’s conclusion that

pre-specification did not occur as contemplated by the

guideline was justified.

App. 91

I disagree. The plaintiffs’ reliance on the

imperfections in the census to blink at similar uncertainties

in the adjustment procedure misses the point that, under the

Tubric of the guidelines, the adjusted counts must Satisfy

Certain criteria, regardless of whether the original

enumeration could survive exposure to similar criteria. It

must be remembered that under Guideline One, the

presumption of accuracy runs in favor of the Original census

count. Because the Secretary's concerns over

pre-specification and the robustness of adjustment data were

legitimate, I find that the Secretary’s conclusion under

Guideline Three was not arbitrary or Capricious.

Guideline Four

Guideline Four counsels that "(t]he decision whether

Or not to adjust the 1990 Census should take into account the

effects such a decision might have on future census efforts.”

City of New York II, 739 F.Supp. at 769. With this in mind,

the Secretary stated that he “d{id) not find compelling

evidence in either direction regarding the effects of a

decision on future individual motivations." Decision at 2-58.

Weighing the effects that an adjustment might have on the

App. 92

efforts of state, community, civic, and interest group leaders,

the Secretary was concerned that "an adjustment [would]

remove the incentive that these public officials and groups

currently have to provide active support in achieving a

complete count." Jd. at 2-59. The Secretary found

“unpersuasive” the contention that, even with an adjustment,

local officials would retain a strong incentive to gather data,

and "{found] no evidence indicating that local support would

decrease as a result of a decision not to adjust the census."

Decision at 2-59.

He went on to conclude that a decision to adjust

could hinder the operations of the census in other ways,

including disincentives for Congress to provide funding, and

for enumerators to pursue their task energetically, and the

possibility that adjustment could be distorted for partisan

political purposes in future censuses. /d. at 2-60. Balancing

all these fears, the Secretary concluded “that an adjustment

would adversely affect future census efforts to a greater

extent than any adverse effects of a decision not to adjust.”

Id. at 2-61.

Plaintiffs argue that it is futile to fret over censuses

in the year 2000 and beyond in considering whether or not

to adjust the 1990 census. This argument blithely ignores

the express mandate of Guideline Four that the effect of the

Secretary's decision on future censuses be considered.

While I recognize that Guideline Four creates a potential

tension with the constitutional requirement that the census be

as accurate as practicable, under the circumstances of this

case, that tension is minimal. Accordingly, I find that the

Secretary's conclusion regarding Guideline Four was neither

arbitrary nor capricious.

App. 93

Guidelines Five & Six

Because the Secretary's conclusions based on

Guidelines Five and Six are not challenged by the plaintiffs,

I will only say that the conclusions reached by the Secretary

in the Decision sufficiently considered those guidelines.”

Guideline Seven

Guideline Seven provides that "[t}he 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." City of New York II, 739 F.Supp. at 769. At an

earlier stage of this litigation, I rejected a request to vacate

Guideline Seven, finding that it, and Guideline Eight, might,

"in a constructive fashion, help define the meaning of ‘the

most accurate census practicable,’" and concluded that, at

least to that extent, they were permissible factors. Jd. at

771.

In his consideration of Guideline Seven, the Secretary

noted that the Clerk of the United States House of

“Guideline Five provides that adjustment cannot violate the

Constitution or any federal statute. The Secretary concluded that because

he had reached a decision not to adjust based on other factors, "legal

considerations did not provide a basis” for his decision. Decision at

2-65.

Guideline Six mandates that if adjusted counts could not be

published by July 15, 1991, a determination would be made against

adjusiment. Although adjusted counts were ready to be published by July

15, 1991, the Secretary had concluded not to adjust, and so this guideline

became moot.

App. 94

Representatives had officially certified to each of the fifty

states the number of seats allotted to that state for the 103rd

Congress (convened in January 1993) based on census

figures released on December 26, 1990, and that, as of May

1991, "some 20 states had already enacted either or both of

their Congressional and State legislative redistricting plans."

Decision at 2-71. The Secretary then went on to outline the

disruption and delay that an adjustment would cause,

particularly in those states where adjustment would change

their allotted number of seats in the House of

Representatives.

It should be remembered that Congress decreed in

1912 there be only 435 seats in the House of

Representatives. We are, therefore, dealing with a zero-sum

game; when one state gains a seat, another must lose one.

If the adjustment were made, California and Arizona, for

example, would each gain one seat in the House, while

Pennsylvania and Wisconsin would each lose one. /d. at

2-72. The Secretary envisioned massive litigation over such

a decision.

Ultimately, the Secretary concluded that Guideline

Seven favored adherence to the census counts. He rejected

the argument that non-adjustment is "inherently disruptive,”

as based on the question-begging premise that the adjusted

counts are more accurate. He also concluded that, even if

it were true that adjustment would result in a fairer

distribution of funds, this consideration would pale in

comparison to the disruption of political representation that

would ensue from a decision to adjust, because “adjustment

would not result in significant shifts in those funds.” /d. at

2-75.

App. 95

Plaintiffs assail the Secretary's Guideline Seven

conclusion on two distinct grounds. First, they suggest that

it is disingenuous for the Secretary to rely on the fact that

the unadjusted counts were already being used for

reapportionment and redistricting purposes, when the

Plaintiffs also observe that the Secretary's conclusion

that adjustment would not result in Significam shifts in

federal funds contradicts an earlier sentence in the Decision

that city and state population "shares are very important

because they determine ... how large a ‘slice of the pie’ of

federal funds go to each city and state.” Decision at 1-3-]-4.

Plaintiffs are right. This, however, does not render the

Secretary's decision invalid under Guideline Seven, because

it involves a matter--the allocation of federal funds--only

tangentially related to Guideline Seven, the basic thrust of

which is the effect of a decision to adjust "on the orderly

transfer of political representation.” Accordingly, while

there is an obvious inconsistency in the discussion

accompanying the result, the plaintiffs have failed to show

that the Secretary's conclusion under Guideline Seven was

Guideline Eight

Guideline Eight requires the Secretary to articulate

the factors relied upon in reaching his decision, and also

requires that “(t)he technical documentation lying behind

[his] decision shall be in keeping with professional standards

of the statistical community." City of New York Il, 739

F.Supp. at 769. Because the plaintiffs do not specifically

attack the Secretary's decision under this guideline, and

because the Secretary concluded that application of this

guideline neither favored nor militated against adjustment, |

find that the Secretary's Decision complied with Guideline

Eight.

*. * *

Having thus parsed the guidelines, the Court

concludes that the Secretary's conclusions under each

guideline and his ultimate decision against adjustment cannot

be characterized as arbitrary or capricious. The breadth of

the guidelines left the Secretary enormous discretion.

Plaintiffs 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, 1 would probably have ordered the adjustment.”’

However, it is 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.

” Additionally, I note that in light of recent improvement in statistical

‘Wools and the practical benefits that the 1990 PES has provided, the use

of adjustment in the next census is probably inevitable.

that the role of the judiciary should be carefully delineated,

especially when the controversy related to the management

of the government. As Hamilton wrote:

The administration of government, in its largest

sense, comprehends all the operations of the body

politic, whether legislative, executive, or judiciary;

but in its most usual and perhaps in its most precise

signification, it is limited to executive details, and

falls peculiarly within the province of the executive

department.

The Federalist No. 72 at 450 (Henry Cabot Lodge, ed.,

1888).

The writings of Montesquieu and Locke bristle with

the notion of separation of powers. But nowhere is it

articulated more succinctly than in the Massachusetts

Constitution:

In the government of this commonwealth, the

legislative department shall never exercise the

executive and judicial powers, or either of them: the

executive shall never exercise the legislative and

judicial powers, or either of them: the judicial shall

never exercise the legislative and executive powers,

or either of them: to the end it may be a government

of laws and not of men.

Mass. Const. pt. 1, art. 30 (1780).

True, the APA sanctions judicial intervention when

the parties feel aggrieved by a final administrative ruling.

App. 98

But the APA tightly cabins judicial oversight, permitting

judicial intrusion only when the administrative decision

abuses reason. It is essential to the maintenance of judicial

integrity that courts reviewing such determinations zealously

adhere to the arbitrary and capricious standard of review.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971) (When

reviewing agency action under the arbitrary and capricious

standard of review, “the ultimate standard of review is a

narrow one. The court is not empowered to substitute its

judgment for that of the agency."); Hudson Transit Lines v.

United States ICC, 765 F.2d 329, 336 (2d Cir. 1985) ("while

a reviewing court may not supply the basis for the agency's

decision, lest it interfere with matters that Congress entrusted

to the executive agency, it will uphold a decision of less than

ideal clarity if the ‘path which [the agency] followed can be

discerned’") (quoting Colorado Interstate Gas Co. v. FPC,

324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206

(1945)); Connecticut Dep't of Children & Youth Servs. v.

Department of Health & Human Servs., 788 F.Supp. 573,

577 (D.D.C.1992) ("Under this standard, the Court is not

free to substitute its own judgment, but is limited to

determining whether the agency has considered all relevant

factors and whether the agency's decision is reasonable and

in accordance with the relevant statute. Under the [APA],

the standard of review is highly deferential to the agency.").

As Cardozo has reminded us, "[t)he judge, even when he is

free, is still not wholly free. He is not to innovate at

pleasure. He is not a knight-errant, roaming at will in

pursuit of his own ideal of beauty or of goodness. He is to

draw his inspiration from consecrated principles." Benjamin

N. Cardozo, Nature of the Judicial Process 141 (Yale

Univ.Press, 1921).

App. 99

Midst all the sturm und drang, after all is said and

done, the question before the court distills to this: did the

Secretary act reasonably? This, of course, depends mainly

upon the evidence he had before him. In his testimony, Dr.

Robert E. Fay, one of the principal statisticians at the

Census Bureau (who, incidently, voted to adjust) pierced

right to the heart of the case: “I told the Secretary that ...

reasonable statisticians could differ on this conclusion.” Tr.

at 1909. The Court agrees, and therefore, concludes that the

Secretary's decision not to adjust the 1990 census count was

neither arbitrary nor capricious.

The PES Tapes

Plaintiffs also move to vacate a protective order,

issued by Magistrate Judge Ross, governing certain computer

tapes they got from the Government during discovery in this

case. These tapes contain the adjusted census data at the

block level and are the material that would have been

released to the states if the Secretary had decided to adjust.”

Plaintiffs argue that the Court should vacate the protective

order because: (1) plaintiffs already possess the tapes, and,

thus, release of the data would not violate any institutional

confidence, and (2) release of the tapes is appropriate under

13 U.S.C. § 141(c), which requires the Secretary of

Commerce to provide the states with data to be used in

*On July 15, 1991, the day the Secretary announced his decision, he

also released to the public the adjusted census data at the national, state,

Department disclosed half of the adjusted block-level data to Congress.

_ |

App. 100

When they opposed production of these tapes before

Magistrate Judge Ross, the defendants asserted the

“deliberative process” privilege as a basis for their refusal.

The “deliberative process" privilege “protects from

disclosure those agency documents which retiect ‘advisory

of a process by which governmental decisions and policies

are formulated.’" Mobil Oil Corp. v. Department of Energy,

102 F.R.D. 1, 5 (N.D.N.Y.1983) (quoting Mobil Oil Corp.

v. Department of Energy, 520 F.Supp. 414, 416

(N.D.N.Y.1981)).

The privilege is a qualified or discretionary one that

turns on a balance of competing policy claims. See In re

Franklin Nat'l Bank Sec. Litig., 478 F.Supp. 577, 582

(E.D.N.Y.1979). The privilege does not protect purely

factual material. Jd. at 581. Magistrate Judge Ross assumed

arguendo, that the redistricting tapes reflected certain

advisory opinions, but found that the benefit to be derived

from protecting such information was outweighed by the

benefit to accurate judicial fact-finding that would follow

upon production of the tapes. Accordingly, she ordered the

defendants to produce them, but, at the request of the

defendants, also entered a protective order forbidding public

disclosure. The Magistrate Judge was aware at the time of

what she described as the “hotly contested Ninth Circuit

litigation concerning disclosure of these same tapes."

I now have the result of that “hotly contested" Ninth

Circuit case. Assembly of California v. United States Dep't

of Commerce, 968 F.2d 916 (9th Cir.1992). There, the

Department of Commerce was asked to release computer

tapes containing all the block-level census data for California

pursuant to a claim by the California State Assembly under

App. 101

the Freedom of Information Act, 5 U.S.C. § 552(a)

("FOIA"). The Department of Commerce argued, as it does

here, that the data should not be disclosed because of their

The district court rejected that argument and ordered

the Department of Commerce to produce the data. Assembly

of California v. United States Dep't of Commerce, 797

F.Supp. 1554 (E.D.Cal.1992). The Commerce Department

data were neither pre-decisional nor deliberative, the Ninth

Circuit affirmed the order that the tapes be released. 968

F.2d at 923.

A directly contrary result was reached by the

Eleventh Circuit in Florida House of Representatives v.

United States Dep't of Commerce, 961 F.2d 941 (11th

Cir.1992). There, the Florida House of Representatives

brought a FOIA action to compel the Department of

Commerce to release all the adjusted block-level data for

Florida. The district court granted summary judgment for

Florida, and the Department of Commerce appealed. The

Eleventh Circuit reversed, finding that “[bJecause the

adjusted census block level data are a subordinate’s opinion

and reflect the give-and-take of the deliberative process ...

the data are deliberative, and in turn, within the scope of the

deliberative process privilege." Jd. at 950.

Recognizing this split in the circuits, and assuming

arguendo, that the tapes reflect certain aspects of the

deliberative process, I believe the Ninth Circuit has the

better of the argument. Whatever interest the Department of

Commerce may have had in the confidentiality of the block

level counts, that interest was seriously diluted when the

App. 102

Secretary released one half of all the data to Congress; and,

whatever privacy survived as to the block level data for

California was lost following the Ninth Circuit's decision.

Balanced against the slight residuary interest that the

defendants may have in the confidentiality of the block level

data is the public’s interest in full acc

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