Counting All of Us: The Supreme Court and the 2000 Census by FRANK ASKIN* For at least 40 years, the civil rights community has devoted significant energies to the twin goals of one-person-one-vote and equal political representation for members of discrete racial minority groups. It has vigorously pursued these objectives in both the judicial and legislative arenas. Another such landmark legal battle will be waged before the United States Supreme Court this year in United States House of Representatives v. United States Dept. of Commerce, which will be argued November 30. Although the case involves a seemingly technical dispute over the methodology to be used in conducting the next census, the political stakes are high, and the legal issues are in many ways comparable to those presented in Baker v. Carr, the landmark reapportionment decision. The case involves another assault on political equality by those who would turn back the clock to an earlier time when the voices of racial minorities were almost entirely excluded from our nation's legislative arenas. A little historical perspective is necessary. When Baker v. Carr was decided in 1962, the number of non-white members of the United States Congress could be counted on the fingers of one hand. The requirement that Congressional redistricting reflect population equality along with the passage of the Voting Rights Act in 1965 began to make substantial inroads into the racial exclusivity of the House of Representatives. That movement suffered a setback in 1980 with the Supreme Court's decision in City of Mobile v. Bolden, which held that legislative districting decisions could not be challenged -- even when they diluted minority voting strength -- unless the plaintiffs were able to prove intentional discrimination. The civil rights community then convinced Congress to enact the Voting Rights Amendments of 1982. In 1986, the Supreme Court recognized, in Thornburg v. Gingles, that the 1982 amendments had overruled Bolden's "intent" test and replaced it with an "effects" test focusing on the results of voting regulations. The consequence was extraordinary. Under the command of the revised Voting Rights Act, the Congressional redistricting process in 1990 resulted in a substantial increase in minority representation in the House. While still significantly short of the African-American percentage of the U.S. population, the Congressional Black Caucus had increased to nearly 40 members by 1994. This development was not universally applauded. Opponents went back to the federal courts to argue that state legislatures, under the command of the Voting Rights Act, had gone out of their way to create majority-minority districts, especially in the South, and that this somehow discriminated against white voters. Once more the civil rights community had to defend the gains of an earlier era. But again, as in 1982, the Supreme Court turned its back on racial justice. In an extraordinary perversion of constitutional history, the Supreme Court decided in Shaw v. Hunt, the North Carolina Congressional districting case, that, despite the command of the 1982 Voting Rights amendments, Congress could not take race into account in creating majority minority districts. The Court applied the doctrine of "strict scrutiny" to invalidate legislative enactments designed to enhance the right of racial minorities. Thus the Court turned the doctrine of "strict scrutiny" against the very groups it had been designed to protect -- the "discrete and insular minorities" who Chief Justice Stone recognized, in 1938, could not rely on the majoritarian political process to protect their interests. As a consequence, in a number of states, black political representation is now directly threatened. But this time, racial justice is not under attack only from the courts. Congress has joined the assault. In an effort to place the non-white population on an equitable footing with the majority population when it comes to redistricting the nation after the 2000 census, the Bureau of the Census proposed to take steps to eliminate what social scientists recognize as the "differential undercount." Census Bureau professionals have determined that because of overcrowding, mobility and other factors in urban areas where much of the country's non-white population resides, approximately one out of every 20 African-American and Hispanic Americans are missed by census enumerators -- compared to less than one out of a hundred of non-Hispanic whites. In order to compensate for this differential undercount, the Census Bureau decided to implement certain sampling techniques in connection with the 2000 census in order to more accurately enumerate the population and its geographical distribution. Since legislative districting is governed by population numbers, the impact of the undercount is obvious. Without resorting to sampling techniques, inner city residents get short-changed in the districting process. To put it aother way, 5 per cent of the non-white population is denied legislative representation. Moreover, inner city areas get short-changed in the distribution of federal funds tied to population figures. Rather than applaud this effort, Congress filed its own law suit to forbid the Census Bureau from carrying out this equitable action on the grounds that sampling was forbidden by its interpretation of the 1976 Census Act. Of course, one might think that if Congress wanted to express its clear intent it might do so by new legislation. The problem is that it attempted to do just that, and President Clinton vetoed it. So now Congress is asking the courts to decide what the 1976 Congress intended. Fortifying Congress' statutory argument is a constitutional claim that the Enumeration Clause of the Constitution requires an actual headcount of every citizen. But even if there was such an intention in the original Constitution, that principle would seem to be superseded by the subsequently adopted 14th and 15th Amendments precluding discrimination in voting on the basis of race, and rejecting the infamous "three-fifths compromise," which was also part of the original Enumeration Clause. The real question is how can Congress require that legislative seats be apportioned on the basis of figures that everyone seems to agree undercount racial minorities. If, as the Supreme Court has consistently held, every person has a right to equal representation, and that legislative districts must be equal in population in order to satisfy the constitutional demand of equal protection, how can we blind our eyes to social reality and base these fundamental constitutional decisions on figures all agree are flawed? As to the statutory argument, if the Voting Rights Act prohibits electoral decisions which have an adverse impact on racial minorities, how can the Census Bureau together with legislative districters allow allocations which blatantly deny equal representation to minority groups? The issues are not totally new. They last arose in connection with the 1990 census when New York City and others sued to require the Commerce Department to adopt sampling techniques. In rejecting that challenge, at least in the context of an interstate dispute, the Supreme Court's decision in Wisconsin v. New York stressed that courts should defer to the discretion of the Secretary of Commerce as to whether or not to utilize sampling techniques. Here, of course, the secretary has exercised that discretion in favor of sampling. So the Supreme Court will get another chance this term to demonstrate whether -- on the issue of equal minority participation in the political process -- it will be part of the solution, as it was in a prior era, or whether it is going to remain a part of the problem. Should the Court forbid sampling -- and hold that the ruling applies to intrastate as well as interstate apportionment -- the impact on minority rights is likely to be devastating. _________________ * FRANK ASKIN is Professor of and Robert Knowlton scholar, Rutgers School of Law, Newark, and a General Counsel of the American Civil liberties union.