Volume 8 no. 4
Supreme Court Rules in Census Case
On March 20, 1996, the Supreme Court ruled 9-0 in Department of Commerce v. City of New York (No. 94-1614) that the Secretary of Commerce was not required to statistically adjust the 1990 census, despite the Department's admitted undercount of the overall population and the disproportionate undercount of certain racial and ethnic minority groups. The Court additionally held that the Secretarys decision was consistent with the Census Act (13 U.S.C. 141), and was not subject to strict scrutiny. The strict scrutiny standard requires that any law, policy, or governmentally supported action must be narrowly tailored to address a compelling state interest.
The questions before the court were:
1) whether the Secretary of Commerces decision to not statistically adjust the 1990 census count is consistent with Article I, Section 2, Clause 3 of the United States Constitution that [t]he actual Enumeration shall be made...in such manner as [Congress] shall by law direct;
2) whether the opinion of the 2nd Circuit Court of Appeals is consistent with federal law, 13 U.S.C. Section 195 which authorizes the Secretary to use a statistical method known as sampling "to conduct the census, but prohibits the use of sampling in purposes of apportionment of Representatives in Congress" and 13 U.S.C. Section 141 which gives the Secretary of Congress the mandate to determine the mode of conducting the census including the use of sampling procedures and special surveys;
3) whether the Court of Appeals correctly applied the test of heightened scrutiny to the Secretary of Commerces decision.
The Department of Commerce is required pursuant to the U.S. Constitution to conduct a population count of the United States every ten years. The task of counting the population is shared with the Bureau of the Census, a branch of the Department of Commerce which takes instruction from the Secretary of Commerce in regards to the method of conducting the census count. The significance of the census count is manifold. The results of the census are used:
to apportion the Members of the House of Representatives (Article I, Sec. 2, Clause 2),
to determine the number of votes each state receives for the election of the President via the electoral college (Article II, Sec. 1, clause 2),
to aid the federal government in dispensing funds through federal programs to the states, and
to assist states in drawing intrastate political districts.
Since its inception, the census goal of achieving "actual enumeration", that is, an exact count of the population, has never been realized. Moreover, the population has been consistently undercounted. For example, "in 1970 the Census Bureau concluded that the census results were 2.7% lower than the actual population." This overall undercount of the population is thought to result from "[p]ersons who should have been counted are not counted at all or are counted at the wrong location; persons who should not have been counted (whether because they died before or were born after the decennial census date or because they were non U. S. Citizens) are counted." Brief for the Respondents 12.
In addition to the overall undercount of the population, there exists a disproportionate undercount of racial and ethnic minorities called the differential undercount.
"Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites. In 1940, for example, when the undercount for the entire population was 5.4%, the undercount for blacks was estimated at 5.0% [check]. Forty years later the evidence of an ever-present differential undercount persists. The 1980 census reveals that the overall population undercount was 1.2% and the undercount for blacks were 4.9%. . . [T]he Secretary estimated that in the 1990 census blacks had been undercounted by 4.8%, Hispanics by 5.2%, Asian/Pacific Islanders by 3.1% and American Indians by 5.0)%, while non-blacks had been undercounted by 1.7%; thus, the black/non-black differential undercount was estimated to be 3.1." Brief for the Respondents.
The differential undercount occurs for several reasons:
1) the Census Bureau fails to include many of the addresses of minority households located in inner cities on the census mail out list,
2) the complexity of the questionnaire discourages a response from individuals with limited education,
3) language difficulties also discourage some minorities from completing the Census questionnaire, and
4) the census reliance on door-to-door visits for inner cities promote an undercount largely because addresses in the projects and multi-unit structures are hard to find and because fear of crime discourages the census counters from conducting the census interview.
The Census Bureau recognized the problems of a persistent, overall undercount and differential undercount of the census. Accordingly, prior to the 1990 Census, the Census Bureau initiated efforts to correct the census undercount by organizing two task forces: the Undercount Steering Committee (USC) and, the Undercount Research Staff (URS) who were responsible for planning the undercount research and conducting the research respectively.
The task forces, with the approval of the Director of the Census Bureau, recommended the use of a statistical adjustment, called the Post Enumeration Survey (PES), a post-stratification method which USC and URS believed would reduce the overall undercount and a disproportionate undercount of racial and ethnic minorities. Subsequently, the Secretary of Commerce rejected the recommendation to statistically adjust the 1990 census because of his desire to achieve distributive accuracy before numerical accuracy. Numerical accuracy most closely reflects the exact count of the total population, while distributive accuracy would provide a better count of the proportions of people in different areas. Accordingly, the Secretary adopted the unadjusted census data because distributive accuracy achieves one of the "constitutional purpose[s] of the census" which is to determine the number of Representatives each state will have.
In opposition to the Secretarys decision not to adjust, on November 3, 1988, the city and State of New York, California, and several other cities brought suit to compel the Department of Commerce and the Bureau of the Census to require a statistical adjustment of the 1990 Census in order to decrease the "anticipated undercount" of the overall population and a disproportionate undercount of ethnic minorities. The state of New York claimed that the decision violated the equal representation rights enumerated in Article I, Section 2, clause 3, and the fourteenth and fifth amendments to the Constitution.
LOWER COURT ACTION
On April 13, 1993, the Secretary's decision not to adjust the census count was upheld by the district court. The district court found that "for most purposes the recommended [statistical adjustment] resulted in a more accurate- or to be statistically fashionable, a less inaccurate count than the original census." Nevertheless, the district court also "found that the [Secretary's] guidelines permitted [him] to ignore all comparisons of accuracy favoring the adjusted counts if the Secretary could identify any comparison as to which there remained uncertainty."
On August 8, 1994, a divided panel of the Second Circuit Court reversed the district courts decision to uphold the Secretarys decision to adopt the unadjusted census count. The Second Circuit court found that the Secretarys decision not to adjust should be subject to heightened scrutiny both because "the Secretarys decision impacted a fundamental right, the right to have ones vote counted, and because the decision had a disproportionate impact upon certain identifiable minority groups." The Court of Appeals sent the case back to the lower court to allow the Secretary to prove that his decision couly withstand such scrutiny. Conversely, one judge dissented on the grounds that the majoritys decision contravenes federal law.
The unanimous opinion of the Supreme Court was delivered by Chief Justice Rehnquist on March 20, 1996. The opinion states:
"In conducting the 1990 United States Census, the Secretary of Commerce decided not to use a particular statistical adjustment that had been designed to correct an undercount in the initial [population count]. The Court of Appeals of the Second Circuit held that the Secretarys decision was subject to heightened scrutiny because of its effect on the right of individual respondents to have their vote counted equally. We hold that the Secretarys decision was not subject to heightened scrutiny, and that it conformed to applicable constitutional and statutory provisions. We conclude that [the Secretarys] decision not to adjust the 1990 census was consonant with, . . . the text and history of the Constitution. The Secretary of Commerce, to whom Congress has delegated its constitutional authority over the census, determined that in light of the constitutional purpose of the census, an actual Enumeration- would best be achieved without the PES-based statistical adjustment of the initial [population count]. We find that conclusion entirely reasonable. Therefore, we hold that the Secretarys decision was well within the constitutional bounds of discretion over the conduct of the census provided to the Federal Government. The judgment of the Court of Appeals is reversed."