Wisconsin v. City of New York

The undercount is not thought to be spread consistently across the population: Some segments of the population are “undercounted” to a greater degree than are others, resulting in a phenomenon termed 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 8.4% (and the under-count for whites at 5.0%). Ibid. The problem of the differential undercount has persisted even as the census has come to provide a more numerically accurate count of the population. In the 1980 census, for example, the overall under-count was estimated at 1.2%, and the undercount of blacks was estimated at 4.9%. Ibid.

The Census Bureau has recognized the undercount and the differential undercount as significant problems, and in the past has devoted substantial effort toward achieving their reduction. Most recently, in its preparations for the 1990 census, the Bureau initiated an extensive inquiry into various means of overcoming the impact of the undercount and the differential undercount. As part of this effort, the Bureau created two task forces: the Undercount Steering Committee, responsible for planning undercount research and policy development; and the Undercount Research Staff (URS), which conducted research into various methods of improving the accuracy of the census. In addition, the Bureau consulted with state and local governments and various outside experts and organizations.

Largely as a result of these efforts, the Bureau adopted a wide variety of measures designed to reduce the rate of

at the next step — the “capture” stage — one would conduct a fairly quick count of the entire patch, making sure to record both the number of pumpkins counted in the entire patch and the number of pumpkins counted in the selected section. Let us imagine that this stage results in a count of 10,000 pumpkins for the entire patch and 1,000 pumpkins for the selected section. Next, at the “recapture” stage, one would perform an exacting count of the number of pumpkins in the selected section. Let us assume that we now count 1,100 pumpkins in that section. By comparing the results of the “capture” phase and the results of the “recapture” phase for the selected section, it is possible to estimate that approximately 100 pumpkins actually in the patch were missed for every 1,000 counted at the “capture” phase. Extrapolating this data to the count for the entire patch, one would conclude that the actual number of pumpkins in the patch is 11,000.

In the context of the census, the initial enumeration of the entire population (the “capture”) would be followed by the postenumeration survey (PES) (the “recapture”) of certain representative geographical areas. The Bureau would then compare the results of the PES to the results of the initial enumeration for those areas targeted by the PES, in order to determine a rate of error in those areas for the initial enumeration (i. e., the rate at which the initial enumeration undercounted people in those areas). That rate of error would be extrapolated to the entire population, and thus would be used to statistically adjust the results of the initial enumeration.

The URS thought that the PES also held some promise for correcting the differential undercount. The PES would be conducted through the use of a system called post-stratification. Thus, each person counted through the PES would be placed into one, and only one, of over 1,000 post-strata defined by five categories: geography; age; sex; status

adjust was essential for the achievement of a legitimate governmental objective. Ibid.

The dissenting judge stated that he would have affirmed based upon the decision of the District Court. See ibid. He also noted that the majority’s decision created a conflict with two other decisions of the Courts of Appeals. See Detroit v. Franklin, 4 F. 3d 1367 (CA6 1993), and Tucker v. United States Dept. of Commerce, 958 F. 2d 1411 (CA7 1992).

Wisconsin, Oklahoma, and the United States each filed a petition for certiorari. We granted those petitions, and consolidated them for argument. 515 U. S. 1190 (1995). We now reverse.

I

n recent years, we have twice considered constitutional challenges to the conduct of the census. In Department of Commerce v. Montana, 503 U. S. 442 (1992), the State of Montana, several state officials, and Montana’s Members of Congress brought suit against the Federal Government, challenging as unconstitutional the method used to determine the number of Representatives to which each State is entitled. A majority of a three-judge District Court looked to the principle of equal representation for equal numbers of people that was applied to intrastate districting in Wesberry v. Sanders, supra, and held it applicable to congressional apportionment of seats among the States. Noting a significant variance between the population of Montana’s single district and the population of the “ideal district,” the court found that Congress’ chosen method of apportionment violated the principle of Wesberry, and therefore voided the federal statute providing the method of apportionment.

In a unanimous decision, this Court reversed. We began by revisiting Wesberry, a case in which the Court held unconstitutional wide disparities in the population of congressional districts drawn by the State of Georgia. Montana, supra, at 459-460 . We recognized that the principle of Wesberry— “ ‘equal representation for equal numbers of people’ ” — had

evolved though a line of cases into a strictly enforced requirement that a State “ ‘make a good-faith effort to achieve precise mathematical equality”’ among the populations of congressional districts. See Montana, supra, at 460 , quoting Kirkpatrick v. Preisler, 394 U. S. 526 , 530-531 (1969) (disparities between congressional districts in Missouri held unconstitutional); see also Karcher v. Daggett, supra (1% disparity between population of New Jersey districts held unconstitutional). Returning to Montana’s challenge to Congress’ apportionment decision, we noted that the Wesberry line of cases all involved intrastate disparities in the population of voting districts that had resulted from a State’s redistricting decisions, whereas Montana had challenged interstate disparities resulting from the actions of Congress. Montana, supra, at 460 .

We found this difference to be significant beyond the simple fact that Congress was due more deference than the States in this area. Wesberry required a State to make “a good-faith effort to achieve precise mathematical equality” in the size of voting districts. Kirkpatrick, supra, at 530-531 . While this standard could be applied easily to intrastate dis-tricting because there was no “theoretical incompatibility entailed in minimizing both the absolute and the relative differences” in the sizes of particular voting districts, we observed that it was not so easily applied to interstate districting decisions where there was a direct tradeoff between absolute and relative differences in size. Montana, supra, at 461-462. Finding that Montana demanded that we choose between several measures of inequality in order to hold the Wesberry standard applicable to congressional apportionment decisions, we concluded that “[n]either mathematical analysis nor constitutional interpretation provide[d] a conclusive answer” upon which to base that choice. Montana, supra, at 463 .

We further found that the Constitution itself, by guaranteeing a minimum of one representative for each State, made it virtually impossible in interstate apportionment to achieve

the standard imposed by Wesberry. Montana, supra, at 463 . In conclusion, we recognized the historical pedigree of the challenged method of apportionment, and reemphasized that Congress’ “good-faith choice of a method of apportionment of Representatives among the several States ‘according to their respective Numbers’ commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard.” Montana, supra, at 464.

In Franklin v. Massachusetts, 505 U. S. 788 (1992), we reiterated our conclusion that the Constitution vests Congress with wide discretion over apportionment decisions and the conduct of the census. In Franklin, the State of Massachusetts and two of its registered voters sued the Federal Government, arguing that the method used by the Secretary to count federal employees serving overseas was (among other things) unconstitutional. Restating the standard of review established by Montana, we examined the Secretary’s decision in order to determine whether it was “consistent with the constitutional language and the constitutional goal of equal representation.” See Franklin, supra, at 804; Montana, supra, at 459 . After a review of the historical practice in the area, we found that the plaintiffs had not met their burden of proving that a decision contrary to that made by the Secretary would “make representation . . . more equal.” Franklin, 505 U. S., at 806 . Concluding that the Secretary’s decision reflected a “judgment, consonant with, though not dictated by, the text and history of the Constitution . . . ,” we held the Secretary’s decision to be well within the constitutional limits on his discretion. Ibid.

In its decision in this action, the Court of Appeals found that a standard more strict than that established in Montana and Franklin should apply to the Secretary’s decision not to statistically adjust the census. The court looked to equal protection principles distilled from the same line of state redistricting cases relied upon by the plaintiffs in Montana,

and found that both the nature of the right asserted by respondents — the right to have one’s vote counted equally— and the nature of the affected classes — “certain identifiable minority groups” — required that the Secretary’s decision be given heightened scrutiny. 34 F. 3d, at 1128 . The court drew from the District Court’s decision “implicit” findings: that the census did not achieve equality of voting power as nearly as practicable; “that for most purposes and for most of the population [the PES-based] adjustment would result in a more accurate count than the original census; and that the adjustment would lessen the disproportionate under-counting of minorities.” Id., at 1129 .

The court recognized two significant differences between the intrastate districting cases and the instant action: first, that this case involves the federal rather than a state government; and second, that constitutional requirements make it impossible to achieve precise equality in voting power nationwide. Ibid. But it found these differences nondetermi-native, deciding that no deference was owed to the Executive Branch on a question of law, and that the “impossibility of achieving precise mathematical equality is no excuse for [the Federal Government] not making [the] mandated good-faith effort.” Ibid. The court found that the respondents here had established a prima facie violation of the Wesberry standard both by showing that the PES-based adjustment would increase numerical accuracy, and by virtue of the fact that “the differential undercount in the 1990 enumeration was plainly foreseeable and foreseen.” 34 F. 3d, at 1130-1131 . The court held that the Secretary’s decision would have to be vacated as unconstitutional unless on remand he could show that the decision not to adjust “(a) furthers a governmental objective that is legitimate, and (b) is essential for the achievement of that objective.” Id., at 1131 .

We think that the Court of Appeals erred in holding the “one person-one vote” standard of Wesberry and its progeny applicable to the action at hand. For several reasons, the

“good-faith effort to achieve population equality” required of a State conducting intrastate redistricting does not translate into a requirement that the Federal Government conduct a census that is as accurate as possible. First, we think that the Court of Appeals understated the significance of the two differences that it recognized between state redistricting cases and the instant action. The court failed to recognize that the Secretary’s decision was made pursuant to Congress’ direct delegation of its broad authority over the census. See Art. I, § 2, cl. 3 (Congress may conduct the census “in such Manner as they shall by Law direct”). The court also undervalued the significance of the fact that the Constitution makes it impossible to achieve population equality among interstate districts. As we have noted before, the Constitution provides that “[t]he number of Representatives shall not exceed one for every 30,000 persons; each State shall have at least one Representative; and district boundaries may not cross state lines.” Montana, 503 U. S., at 447-448 .

While a court can easily determine whether a State has made the requisite “good-faith effort” toward population equality through the application of a simple mathematical formula, we see no way in which a court can apply the Wes-berry standard to the Federal Government’s decisions regarding the conduct of the census. The Court of Appeals found that Wesberry required the Secretary to conduct a census that would “achieve voting-power equality,” which it understood to mean a census that was as accurate as possible. 34 F. 3d, at 1129 . But in so doing, the court implicitly found that the Constitution prohibited the Secretary from preferring distributive accuracy to numerical accuracy, and that numerical accuracy — which the court found to be improved by a PES-based adjustment — was constitutionally preferable to distributive accuracy. See id., at 1131 (“[T]he Secretary did not make the required effort to achieve numerical accuracy as nearly as practicable,. . . the burden thus shifted to

constitutional language and the constitutional goal of equal representation,” Franklin, 505 U. S., at 804 , it is within the limits of the Constitution. In light of the Constitution’s broad grant of authority to Congress, the Secretary’s decision not to adjust need bear only a reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census.

In 1990, the Census Bureau made an extraordinary effort to conduct an accurate enumeration, and was successful in counting 98.4% of the population. See 58 Fed. Reg. 70 (1993); Brief for Federal Parties 28. The Secretary then had to consider whether to adjust the census using statistical data derived from the PES. He based his decision not to adjust the census upon three determinations. First, he held that in light of the constitutional purpose of the census, its distributive accuracy was more important than its numerical accuracy. Second, he determined that the unadjusted census data would be considered the most distributive^ accurate absent a showing to the contrary. And finally, after reviewing the results of the PES in light of extensive research and the recommendations of his advisers, the Secretary found that the PES-based adjustment would not improve distributive accuracy. Each of these three determinations is well within the bounds of the Secretary’s constitutional discretion.

As we have already seen, supra, at 18, the Secretary’s decision to focus on distributive accuracy is not inconsistent with the Constitution. Indeed, a preference for distributive accuracy (even at the expense of some numerical accuracy) would seem to follow from the constitutional purpose of the census, viz., to determine the apportionment of the Representatives among the States. Respondents do not dispute this point. See Brief for Respondents 54 (“Distributive accuracy is an appropriate criterion for judging census accuracy because it calls attention to a concern with the uses

to which census data are put”). Rather, they challenge the Secretary’s first determination by arguing that he improperly “regarded evidence of superior numeric accuracy as ‘not relevant’ to the determination of distributive accuracy.” Id., at 39 (quoting Pet. App. 201a); see also Brief for Respondents 51-54. In support of this argument, respondents note that an enumeration that results in increased numerical accuracy will also result in increased distributive accuracy.

We think that respondents rest too much upon the statement by the Secretary to which they refer. When quoted in full, the statement reads: “While the preponderance of the evidence leads me to believe that the total population at the national level falls between the census counts and the adjusted figures, that conclusion is not relevant to the determination of distributive accuracy.” Pet. App. 201a. In his decision, the Secretary found numerical accuracy (in addition to distributive accuracy) to be relevant to his decision whether to adjust. See id., at 157a. Even if the Secretary had chosen to subordinate numerical accuracy, we are not sure why the fact that distributive and numerical accuracy correlate closely in an improved enumeration would require the Secretary to conclude that they correlate also for a PES-based statistical adjustment.

Turning to the Secretary’s second determination, we previously have noted, and respondents do not dispute, the importance of historical practice in this area. See Franklin, supra, at 803-806 (noting importance of historical experience in conducting the census); cf. Montana, 503 U. S., at 465 (“To the extent that the potentially divisive and complex issues associated with apportionment can be narrowed by the adoption of both procedural and substantive rules that are consistently applied year after year, the public is well served . . .”). Nevertheless, respondents challenge the Secretary’s second determination by arguing that his understanding of historical practice is flawed. According to respondents, the Secretary assumed that the census traditionally was con

ducted via a simple “headcount,” thereby ignoring the fact that statistical adjustment had been used in both the 1970 and 1980 censuses. See Brief for Respondents 4-5.

We need not tarry long with this argument.' The Secretary reasonably recognized that a PES-based statistical adjustment would be a significant change from the traditional method of conducting the census. The statistical adjustments in 1970 and 1980 to which respondents refer were of an entirely different type than the adjustment considered here, and they took place on a dramatically smaller scale. See Cuomo v. Baldrige, 674 F. Supp., at 1107 (rejecting argument that Secretary had to conduct PES-like statistical adjustment of 1980 census and finding that “none of [the] adjustments in 1970 were even remotely similar to the types of wholesale adjustments presently suggested . . .”). Moreover, the PES-based adjustment would have been the first time in history that the States’ apportionment would have been based upon counts in other States. See Pet. App. 251a-252a. Here, the Secretary’s understanding of the traditional method of conducting the census was well founded, as was his establishment of a rebuttable presumption that the traditional method was the most accurate.

The Secretary ultimately determined that the available evidence “tends to support the superior distributive accuracy of the actual enumeration,” id., at 185a, and it is this determination at which respondents direct the brunt of their attack. Respondents contend that the Secretary’s review of the evidence is due no deference from this Court. They argue that the Secretary’s decision is not the sort of “highly technical” administrative decision that normally commands judicial deference, and that regardless of its technical complexity, the Secretary’s review of the evidence presents a constitutional issue that deserves no deference. Respondents contend that the Secretary’s review of the evidence is of dubious validity because the Secretary is admittedly “not a statistician,” id., at 139a, and because his conclusion is at

odds with that of the Director of the Census. According to respondents, we should carefully comb the Secretary’s decision in order to review his conclusions de novo.

Respondents’ argument fundamentally misapprehends the basis for our deference to the Secretary’s determination that the adjusted census results do not provide a more distributively accurate count of the population. Our deference arises not from the highly technical nature of his decision, but rather from the wide discretion bestowed by the Constitution upon Congress, and by Congress upon the Secretary. Regardless of the Secretary’s statistical expertise, it is he to whom Congress has delegated its constitutional authority over the census. For that same reason, the mere fact that the Secretary’s decision overruled the views of some of his subordinates is by itself of no moment in any judicial review of his decision.

Turning finally to review the Secretary’s conclusion that the PES-based adjustment would not improve distributive accuracy, we need note only that the Secretary’s conclusion is supported by the reasoning of some of his advisers, and was therefore a reasonable choice in an area where technical experts disagree. Cf. Tucker v. United States Dept. of Commerce, 958 F. 2d, at 1418 (Plaintiffs seeking PES-based statistical adjustment “are asking [courts] to take sides in a dispute among statisticians, demographers, and census officials concerning the desirability of making a statistical adjustment to the census headcount”). The Under Secretary of Commerce for Economic Affairs and the Administrator of the Economics and Statistics Administration both voted against adjustment. Pet. App. 59a, 140a. Moreover, even those who recommended in favor of adjustment recognized that their conclusion was not compelled by the evidence: The Director of the Census Bureau, upon whose recommendation respondents heavily rely, stated in her report to the Secretary that “[adjustment is an issue about which reasonable men and women and the best statisticians and demographers

can disagree.” App. 73. And one of the principal statisticians at the Bureau, Dr. Robert E. Fay, “ ‘told the Secretary that . . . reasonable statisticians could differ’ ” on the question of adjustment. Pet. App. 91a. Therefore, and because we find the Secretary’s two prior determinations as well to be entirely reasonable, we conclude that his decision not to adjust the 1990 census was “consonant with . . . the text and history of the Constitution.” Franklin, 505 U. S., at 806 .

Ill

The Constitution confers upon Congress the responsibility to conduct an “actual Enumeration” of the American public every 10 years, with the primary purpose of providing a basis for apportioning political representation among the States. Here, 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 results of the initial enumeration. We find that conclusion entirely reasonable. Therefore we hold that the Secretary’s 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.