CENSUS

Article I of the Constitution requires a decennial census of the population in order to apportion congressional representation among the states. In the landmark reapportionment cases of the 1960s, the census assumed a central role not only in apportionment but in the process of electoral districting as well. Following the command of james madison in federalist No. 54 that "numbers are the only proper scale of representation," the Supreme Court in reynolds v. sims (1964) decreed that "[p]opulation is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies." Reliance on the census was indispensable for the Court's willingness to confront the "political thicket" of redistricting and representation.

First, numerical standards from the census provided unassailable empirical data and thereby stemmed charges of the judiciary's making impermissible political decisions. Second, the census provided the denominator for the one person, one vote rule, which emerged as the most successful justiciable standard for overseeing politics. Third, the imposition of objective apportionment constraints furthered the efforts to control gerrymandering and helped realize the Court's 1969 command that "each resident citizen has, as far as is possible, an equal voice in the selections [of public officials]."

Since the 1960s, the hope that the census could bring constitutional order to the reapportionment process has faded. Despite its apparent simplicity, the one person, one vote rule engendered considerable litigation and conflicting rules of tolerable deviations for federal and state redistricting. Rather than defeat gerrymanders, the one person, one vote standard spawned a burgeoning industry of computer-aided redistricting that in turn allowed clever partisan manipulations. Even the Court admitted in 1983 that "the rapid advances in computer technology and education during the last two decades make it relatively simple to draw contiguous districts of equal population and at the same time to further whatever secondary goals the State has."

The increased constitutional role occupied by the census also raised the pressure on the decennial enumeration. For all its appearance of objective neutrality, the census involves difficult demographic decisions resulting from a large and mobile population. The census requires "attribution" and "correction" of residence for persons not found during the actual enumeration, for college students, for overseas citizens, for military personnel stationed abroad, for individuals who maintain two homes, and for homeless individuals, among others. In addition, beginning in 1950, the U.S. Bureau of the Census began a post-enumeration survey of the population to check against systematic undercounts. Among the discoveries was that racial and ethnic minorities were significantly more likely to be missed in the enumeration, a problem that persists to this day. Because the resolution for these technical issues has immediate consequences for apportionment, for in-state districting, and for eligibility for federal matching funds, it is not surprising that the census itself is increasingly the subject of litigation.

One source of litigation concerns apportionment decisions between the states. In Department of Commerce v. Montana (1992), for example, a state sued over the mechanism for apportioning the fractional remainder when the census numbers were divided by the 435 seats in Congress. Franklin v. Massachusetts (1992) challenged the manner in which overseas federal employees were counted, on the ground that an apparently disproportionate number selected states without income taxes as their official residences. In each case, the Supreme Court, using a generous rational basis standard of review, granted the federal government wide discretion in implementing the census and in apportioning congressional seats.

Far more contentious has been the persistent undercount of minorities that, critics argue, would be alleviated by using more sophisticated statistical adjustments of the census—as opposed to the elusive attempt to count each and every American. In Wisconsin v. New York (1996), however, the Court again applied rational basis review to hold that the decision by the U.S. Secretary of Commerce not to adjust the census statistically to compensate for the minority undercount was within the broad discretion of the executive branch.

More recently, the Court, in Department of Commerce v. United States House of Representatives (1999), ruled that the census cannot be statistically adjusted for the purpose of congressional apportionment. The decision was premised exclusively on whether the Census Act, as a matter of statutory interpretation, itself prevents using sampling in the congressional apportionment context. Because the Court did not reach any constitutional issues, the decision left unresolved whether the Constitution permits statistical sampling in other contexts, such as redistricting and allocation of federal funds to the states, as well as whether a statutory amendment to the Census Act to permit sampling for congressional apportionment would be constitutional.

Samuel Issacharoff
(2000)

Bibliography

Issacharoff, Samuel and Lichtman, Allan J. 1993 The Census Undercount and Minority Representation: The Constitutional Obligation of the States to Guarantee Equal Representation. Review of Litigation 13:1–29.