October 1, 1998 12:00 am

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Statement of Frank Askin
ACLU General Counsel

For at least 40 years, the ACLU has devoted significant energies to the twin goals of one-person- one-vote and equal political representation for members of discrete racial minorities. We have vigorously pursued these objectives in both the judicial and legislative arenas. Cases and legislation intended to effectuate these goals have been among the organization’s major priorities.

Another such landmark legal battle will be waged before the United States Supreme Court this year. The ACLU will file an amicus brief. We view the case of United States House of Representatives v. United States Dept. of Commerce as important to the proper functioning of our democracy as Baker v. Carr was. It represents one more 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.

It is important to put this matter, which involves the seemingly mundane issue of the methodology to be used in conducting the 2000 census, in historical perspective:

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 of Congressional redistricting to reflect population equality together with the passage of the Voting Rights Act of 1965 — which the ACLU vigorously supported — 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 holding that claims that legislative districting decisions adversely affected the interests of minority groups required proof of intentional discrimination.

The civil rights forces, with the ACLU in the forefront, then convinced Congress to overrule Bolden with the Voting Rights Amendments of 1982, providing that state election and voting laws were illegal if they “resulted in” an adverse impact on persons of color or “language minorities.” 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. 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 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 ACLU and other civil rights organizations had to defend the gains of the civil rights 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” whom 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 at least 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” which inevitably accompanies the constitutionally mandated decennial census. 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 another way, five per cent of the non-white population is denied legislative representation. Moreover, inner city areas also get short-changed in the distribution of federal funds tied to population figures.

And the extraordinary thing is that Congress filed its own lawsuit 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 the plaintiffs’ 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.

For the ACLU, 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 legislative districts must be of equal size 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?

Now the fact is that the one federal court which addressed these issues directly found they could not. In a 1994 decision, the Second Circuit held that the prior Department of Commerce was required to adopt sampling techniques in connection with the 1990 census because the failure to do so would deny equal protection to discrete and insular minority groups.

However, that case arose from an interstate challenge charging that the differential undercount would result in improper allocation of congressional seats and Electoral College Electors among the states. And the Supreme Court reversed the Second Circuit and held that the 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.

Unfortunately, a cryptic footnote in the opinion by Chief Justice Rehnquist repeated the statement from the Bolden opinion that claims of equal protection denial required proof of intentional discrimination. The Chief Justice failed to mention that, at least so far as voting rights are concerned, Bolden was overruled by the 1982 amendments to the Voting Rights Act and the Court’s opinion in Gingles.

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 part of the problem.

As it has done for the past 40 years, the ACLU will be making its views known.

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