The Census Requirement
The Census Clause “reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the states, would determine the manner of conducting the census.”344 These determinations “all suggest a strong constitutional interest in accuracy.”345
The language employed—“actual enumeration”—requires an actual count, but gives Congress wide discretion in determining the methodology of that count. The word “enumeration” refers to a counting process without describing the count’s methodological details. The word “actual” merely refers to the enumeration to be used for apportioning the Third Congress, and thereby distinguishes “a deliberately taken count” from the conjectural approach that had been used for the First Congress. Finally, the conferral of authority on Congress to “direct” the “manner” of enumeration underscores “the breadth of congressional methodological authority.” Thus, the Court held in Utah v. Evans, “hot deck imputation,” a method used to fill in missing data by imputing to an address the number of persons found at a nearby address or unit of the same type, does not run afoul of the “actual enumeration” requirement.346 The Court distinguished imputation from statistical sampling, and indicated that its holding was relatively narrow. Imputation was permissible “where all efforts have been made to reach every household, where the methods used consist not of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of the method is highly unlikely.”347
Although the Census Clause expressly provides for an enumeration of persons, Congress has expanded the scope of the census by including not only the free persons in the states, but also those in the territories, and by requiring all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court,348 and is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action.
Although taking an enlarged view of its census power, Congress has not always complied with its positive mandate to reapportion representatives among the states after the census is taken.349 It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929,350 it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called “method of major fractions,” which had been earlier employed in the apportionment of 1911, and which has now been replaced with the “method of equal proportions.” Following the 1990 census, a state that had lost a House seat as a result of the use of this formula sued, alleging a violation of the “one person, one vote” rule derived from Article I, § 2. Exhibiting considerable deference to Congress and a stated appreciation of the difficulties in achieving interstate equalities, the Supreme Court upheld the formula and the resultant apportionment.351 The goal of absolute population equality among districts “is realistic and appropriate” within a single state, but the constitutional guarantee of one Representative for each state constrains application to districts in different states, and makes the goal “illusory for the Nation as a whole.”352
Although requiring the election of Representatives by districts, Congress has left it to the states to draw district boundaries. This has occasioned a number of disputes. In Ohio ex rel. Davis v. Hildebrant,353 a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several states produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to state legislatures by the Constitution, the Court decided that it was legislative in character and subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the state constitution.354
- Utah v. Evans, 536 U.S. 452, 476 (2002).
- Utah v. Evans, 536 U.S. 452 (2002).
- See also Wisconsin v. City of New York, 517 U.S. 1 (1996), in which the Court held that the decision of the Secretary of Commerce not to conduct a post-enumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discretion conferred by the Constitution and statute; and Franklin v. Massachusetts, 505 U.S. 788 (1992), upholding the practice of the Secretary of Commerce in allocating overseas federal employees and military personnel to the states of last residence. The mandate of an enumeration of “their respective numbers” was complied with, it having been the practice since the first enumeration to allocate persons to the place of their “usual residence,” and to construe both this term and the word “inhabitant” broadly to include people temporarily absent.
- Knox v. Lee (Legal Tender Cases), 79 U.S. (12 Wall.) 457, 536 (1971) (“Who questions the power to do this?”).
- For an extensive history of the subject, see L. SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT (1941).
- 46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. § 2a.
- U.S. Department of Commerce v. Montana, 503 U.S. 442 (1992).
- 503 U.S. at 463 (“[T]he need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible to have the same size district in any pair of States, let alone in all 50”).
- 241 U.S. 565 (1916).
- Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932).