Enumeration Clause and Apportioning Seats in the House of Representatives

Article I, Section 2, Clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.1 The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

Article I, Section 2, Clause 3, known as the Enumeration Clause or 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.” 2 These determinations “all suggest a strong constitutional interest in accuracy.” 3

Some contend that the language employed— “actual enumeration” —requires an actual count, but gives Congress wide discretion in determining the methodology of that count.4 The word “enumeration” refers to a counting process without describing the count’s methodological details, and the Court has held that the word “actual” refers to the enumeration that was 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.5 Finally, the conferral of authority on Congress to “direct” the “manner” of enumeration underscores “the breadth of congressional methodological authority.” 6 In Dep’t of Commerce v. U.S. House of Representatives, the Court held that the Census Act prohibits the use of statistical sampling to determine the population for congressional apportionment purposes, but declined to reach the constitutional question of whether the Census Clause’s requirement for an “actual enumeration” foreclosed the use of statistical sampling in gathering census information.7 In Utah v. Evans, the Court held that the use of “hot-deck imputation,” a method used to fill in missing census data, did not run afoul of the “actual enumeration” requirement.8 The Court determined that Constitution’s text “uses a general word, ‘enumeration,’ that refers to a counting process without describing the count’s methodological details.” 9 The Court distinguished imputation from statistical sampling and indicated that its holding was relatively narrow10 —that imputation was permissible under the Constitution in this case “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.” 11 Thus, the Court held that the Framers “did not write detailed census methodology into the Constitution” and methods, such as imputation, were constitutionally valid.12

Although the Census Clause expressly provides for an enumeration of persons, Congress has historically collected additional demographic information—in some years asking more detailed questions regarding the personal and economic affairs of a subset of respondents.13

The Court confirmed this understanding of the Enumeration Clause in Department of Commerce v. New York.14 In an opinion on behalf of the Court, Chief Justice John Roberts considered whether the Secretary of Commerce’s decision to ask a citizenship question on the census questionnaire violated the Enumeration Clause because the question did not relate to the accomplishment of an actual enumeration.15 The Chief Justice began his analysis by recognizing that the Clause affords virtually limitless authority to Congress in conducting the census, which Congress has, in turn, largely delegated to the Secretary.16 The Court observed that demographic questions have been asked in every census since 1790, providing a “long and consistent historical practice” that informed the permissibility of the underlying practice.17 Because of this understanding of the Clause’s meaning, the Court held that Congress, and by extension the Secretary, has the power to use the census for broader information-gathering purposes without running afoul of the Enumeration Clause.18

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.19 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, 1929,20 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, Section 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.21 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.” 22

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,23 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.24

1: The part of this clause relating to the mode of apportionment of representatives among the several States was replaced by the Fourteenth Amendment, Section 2, and the language regarding taxes on incomes without apportionment, by the Sixteenth Amendment, which allows for a federal income tax. Specifically, section 2 of the Fourteenth Amendment provides that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” The Thirteenth Amendment, ratified on December 6, 1865, abolished slavery, providing in Section 1, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.”
2: Utah v. Evans, 536 U.S. 452, 476 (2002).
3: Id. But see Karcher v. Daggett, 462 U.S. 725, 732 (1983) (recognizing that the census data provides “the only reliable—albeit less than perfect indication of . . . population levels,” and that the “census count represents the ‘best population data available.’” (quoting Kirkpatrick vs. Preisler, 394 U.S. 526, 528 (1969)).
4: Id. at 474 ( “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.” ).
5: Id. at 475.
6: Id. at 474.
7: 525 U.S. 316, 343 (1999); see id. at 346 (Scalia, J., concurring) ( “[A] strong case can be made that an apportionment census conducted with the use of ‘sampling techniques’ is not the ‘actual Enumeration’ that the Constitution requires.” ).
8: Evans, 536 U.S. at 452. “Hot-deck imputation” refers to the concurrent use of current census information as opposed to using information from prior censuses. Id. at 457–58. The concept of “imputation” refers to a methodology used by U.S. Census Bureau that “imputes the relevant information by inferring that the address or unit about which it is uncertain has the same population characteristics as those of a nearby sample or donor address or unit—e.g., its geographically closest neighbor of the same type. . . that did not return a census questionnaire by mail.” Id. at 458 (internal quotation marks omitted).
9: Id. at 474.
10: Id. at 477 (holding that the Court need not decide whether statistical methods are authorized by the Constitution because the Court was not dealing with “the substitution of statistical methods for efforts to reach households and enumerate each individual” ).
11: See also Wisconsin v. City of New York, 517 U.S. 1 (1996) (holding 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); 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).
12: Evans, 536 U.S. at 479.
13: See Dep’t of Commerce v. New York, No. 18-966, slip op. at 2 (U.S. June 27, 2019).
14: See Id.
15: Id. at 11. In so doing, the Court distinguished the instant challenge against the Secretary of Commerce’s decision to collect certain demographic information during the census from prior case law involving the Secretary’s decisions on how to conduct the population count for the census. Id. That case law required decisions about the population count to be reasonably related to accomplishing an actual enumeration. Id.
16: Id.
17: Id. at 12–13 ( “That history matters. Here, as in other areas, our interpretation of the Constitution is guided by a Government practice that ‘has been open, widespread, and unchallenged since the early days of the Republic. In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire.” ).
18: Id. at 13. In a separate part of the opinion, the Court invalidated the inclusion of the question on procedural grounds, concluding that the Secretary violated the Administrative Procedure Act by failing to disclose the actual reason for adding the citizenship question on the census questionnaire. Id. at 28. See also Trump v. New York, No. 20-366, slip op. at 2 (2020) (per curiam) (ruling that challengers to a presidential memorandum directing the Secretary of Commerce to exclude “from the apportionment base aliens who are not in lawful immigration status” lacked standing and that the case was not ripe for adjudication, observing that “[e]veryone agrees by now that the Government cannot feasibly implement the memorandum by excluding the estimated 10.5 million aliens without lawful status.” ).
19: For an extensive history of the subject, see L. Schmeckebier, Congressional Apportionment (1941).
20: 46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. § 2a.
21: U.S. Department of Commerce v. Montana, 503 U.S. 442 (1992).
22: Id. 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” ).
23: 241 U.S. 565 (1916).
24: Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932).