01-714 Utah v. Evans

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Utah argues that the words “actual Enumeration” require the Census Bureau to seek out each individual and prohibit it from relying on imputation, but the Constitution’s text does not make the distinction that Utah seeks to draw. Rather, it uses a general word, “enumeration,” that refers to a counting process without describing the count’s methodological details. The textual word “actual” refers in context to the enumeration that would be used for apportioning the Third Congress, succinctly clarifying the fact that the constitutionally described basis for apportionment would not apply to the First and Second Congresses. The final part of the sentence says that the “actual Enumeration” shall take place “in such Manner as” Congress itself “shall by Law direct,” thereby suggesting the breadth of congressional methodological authority, rather than its limitation. See, e.g., Wisconsin v. City of New York, 517 U.S. 1, 19. This understanding of the text is supported by the history of the Constitutional Convention of 1787, which demonstrates that “actual Enumeration” does not limit census methodology as Utah proposes, but was intended to distinguish the census from the apportionment process for the First Congress, which was based on conjecture rather than a deliberately taken count. Further support is added by contemporaneous general usage, as exemplified by late-18th-century dictionaries defining “enumeration” simply as an act of numbering or counting over, without reference to counting methodology, and by contemporaneous legal documents, in which “enumeration” does not require contact between a census taker and each enumerated individual, but is used almost interchangeably with the phrase “cause the number of the inhabitants … to be taken.” Indeed, the Bureau’s imputation method is similar in principle to other efforts used since 1800 to determine the number of missing persons, including asking heads of households, neighbors, landlords, postal workers, or other proxies about the number of inhabitants in a particular place. Nor can Utah draw support from the Census Clause’s basic purposes: to use population rather than wealth to determine representation, to tie taxes and representation together, to insist upon periodic recounts of the population, and to take from the States the power to determine the manner of conducting the census. Those matters of general principle do not directly help determine the issue of detailed methodology before the Court. Nonetheless, certain basic constitutional choices may prove relevant. The decisions, for example, to use population rather than wealth, to tie taxes and representation together, to insist upon periodic recounts, and to take from the States the power to determine methodology all suggest a strong constitutional interest in accuracy. And an interest inaccuracy here favors the Bureau, which uses imputation as a last resort after other methods have failed. The Court need not decide here the precise methodological limits foreseen by the Census Clause.

It need say only that in this instance, 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, those limits are not exceeded.”

182 F. Supp. 2d 1165, affirmed.

Local effect:

The decision has not previously been considered by the Seventh Circuit.

Breyer, J.; O’Connor, J., concurring in part and dissenting in part; Thomas, J., concurring in part and dissenting in part; Scalia, J., dissenting.