Wisconsin v. City of New York

517 U.S. 1

Case Year: 1996

Case Ruling: 9-0, Reversed

Opinion Justice: Rehnquist

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Ginsburg, Kennedy, O'Connor, Scalia, Souter, Stevens, Thomas


1st Concurring Opinion



1st Dissenting Opinion



2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


The Constitution requires that a census of the American population take place every ten years and vests Congress with the authority to conduct that count. Through the Census Act, Congress has delegated to the secretary of the Department of Commerce the responsibility to take "a decennial census of the population ... in such form and content as he may determine." The Bureau of the Census and its head, the director of the census, assist the secretary in this task.

The census results are of great political importance. They determine the apportionment of seats in the House of Representatives, they are used in the drawing of state and federal representational districts, and they figure into the method of allocating resources under many government programs. Consequently, the methods used in taking the census are of considerable significance.

It has long been known that the census tends to undercount the general population. The 1970 census, for example, has been estimated to have undercounted the population by 2.7 percent. To add to the difficulty of the situation, the undercounting is not uniform. The African American and Hispanic populations have disproportionately high undercounting levels.

Responding to this problem, the Census Bureau undertook a major study of ways to adjust statistically the actual count to compensate for general and differential undercounting. After years of analysis, the Bureau developed a method, known as a post-enumeration survey (PES), to adjust the actual census count in a manner it believed would more accurately reflect the population and reduce the differential undercount. The PES was controversial, however, and there was a lack of unanimity among experts as to the soundness of the procedure.

As the 1990 census approached, the secretary of commerce announced that the count would be taken in the traditional way and that the PES adjustments would not be used. The decision ran contrary to the position of the Census Bureau director, who supported using PES. The secretary, however, believed that the accuracy of PES had not been sufficiently established to justify abandoning a two-hundred-year tradition of census procedure. He stressed that the most important criterion for accuracy should be "distributive accuracy"--that is, getting the most nearly correct proportions of people in different areas. He conceded that statistical adjustments might improve the "numerical accuracy" of the census at the national level, but that such procedures became increasingly unreliable as one focused on smaller and smaller political subdivisions. He further feared that once the principle of statistical adjustment of actual population counts was adopted, altering the methods of such adjustments for political reasons might occur in the future.

The city of New York led a coalition of parties challenging the secretary's decision. The plaintiffs, including political subdivisions likely to have significant undercounting if traditional methods were used, argued that the decision not to use the PES procedure unconstitutionally diluted the political representation of identifiable racial and ethnic groups. The Department of Commerce, joined by a number of political subdivisions likely to lose representational power if PES was used, defended the secretary's decision. The district court ruled in favor of the secretary. The court of appeals, however, reversed. It held that the secretary's action was subject to heightened scrutiny because it had an impact on the fundamental right of voting and political representation.



In recent years, we have twice considered constitutional challenges to the conduct of the census. In Department of Commerce v. Montana (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 [1964] 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 an 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.... [W]e 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....

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 [ v. Preisler, 1969]. While this standard could be applied easily to intrastate districting 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 trade-off between absolute and relative differences in size.... 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....

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.... 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."...

In Franklin v. Massachusetts (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."... 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."... 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....

In its decision in this case, the Court of Appeals found that a standard more strict than that established in Montana andFranklin 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.... 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 undercounting of minorities."...

... 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."...

We think that the Court of Appeals erred in holding the "one person-one vote" standard of Wesberry and its progeny applicable to the case 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 case. The court failed to recognize that the Secretary's decision was made pursuant to Congress' direct delegation of its broad authority over the census.... 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."...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 Wesberry 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 population equality," which it understood to mean a census that was as accurate as possible.... 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.... As in Montana, where we could see no constitutional basis upon which to choose between absolute equality and relative equality, so here can we see no ground for preferring numerical accuracy to distributive accuracy, or for preferring gross accuracy to some particular measure of accuracy. The Constitution itself provides no real instruction on this point, and extrapolation from our intrastate districting cases is equally unhelpful. Quite simply, "[t]he polestar of equal representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course."Montana.

In Montana, we held that Congress' "apparently good-faith choice of a method of apportionment of Representatives among the several States `according to their respective numbers'" was not subject to strict scrutiny under Wesberry.... With that conclusion in mind, it is difficult to see why or how Wesberry would apply to the Federal Government's conduct of the census--a context even further removed from intrastate districting than is congressional apportionment. Congress' conduct of the census, even more than its decision concerning apportionment, "commands far more deference than a state districting decision that is capable of being reviewed under a relatively rigid mathematical standard."...

Rather than the standard adopted by the Court of Appeals, we think that it is the standard established by this Court inMontana and Franklin that applies to the Secretary's decision not to adjust. The text of the Constitution vests Congress with virtually unlimited discretion in conducting the decennial "actual Enumeration," ... and notwithstanding the plethora of lawsuits that inevitably accompany each decennial census, there is no basis for thinking that Congress' discretion is more limited than the text of the Constitution provides.... Through the Census Act, Congress has delegated its broad authority over the census to the Secretary.... Hence, so long as the Secretary's conduct of the census is "consistent with the constitutional language and the constitutional goal of equal representation," Franklin, 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....

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