YOUNG v. KLUTZNICK

MERRITT, Circuit Judge.

In this suit by the City of Detroit and its Mayor against the Census Bureau Director and the Secretary of Commerce, the District Court found that the final 1980 census figures would understate the black and hispanic populations nationally and in Detroit by a statistically significant but undetermined figure, unless adjusted. After finding in advance of the completion of the census that such an undercount would occur, the District Judge held that certification and publication of the figures without adjustment would violate the provisions of the Constitution requiring an accurate decennial enumeration of the population for the purpose of apportioning Congressional representation.1 He construed the Census Act as permitting the use of such an adjusted set of census figures for purposes of determining Congressional representation.2 He ordered that defendants withhold certification of the census figures to the states and the President, a certification required by statute,3 until defendants devise and report to the Court for approval a statistically defensible means of adjusting the census figures to include the uncounted segments of the black and hispanic populations.

We reverse. Plaintiffs have shown no judicially cognizable injury and lack standing to sue. The claimed injury is based on a state of affairs not yet in existence, and it is so hypothetical in nature that it does not present a controversy capable of judicial resolution.

I. STATEMENT OF THE CASE

A. The Undercount Estimated on the Basis of Studies of the 1970 Census

The essential facts are not in dispute. Plaintiffs concede that the Census Bureau in 1980 made a conscientious effort to conduct an accurate head count of a diverse nation of approximately 225 million people using sound demographic methods developed over many years with the advice of leading scholars in many fields. Plaintiffs do not claim that the Census Bureau has discriminated against any class, blacks, hispanics, or others, or any town or region, Detroit or any other place, in the methods used to conduct the head count. On the contrary, all parties agree, including plaintiffs and their experts, that at great cost the Census Bureau, upon the direction of the President and the Congress, has taken new and creative steps during the 1980 census to find and count disadvantaged groups.

No claim is made that upper and middle class blacks and hispanics are undercounted in comparison with whites of the same economic class. Rather, plaintiffs have demonstrated the undeniable fact that for a complex set of reasons4 it is more difficult to count the poor and the uneducated, whether black or white, than the middle class and the well-to-do. Plaintiffs rely on Census Bureau studies of previous census figures that show that, as a group, more blacks are missed than whites because, as a group, blacks are more disadvantaged.5 Plaintiffs' key witness, Dr. Philip M. Hauser, a former director of the Census Bureau and chairman of the University of Chicago Sociology Department, stated the basic reason for previous undercounts of the black population: "It is not a question of color; it is not the difference in color that makes them hard to count. It is that whole cluster of characteristics associated with color which stands as a proxy for this cluster of characteristics" (App. 405).

The demographic and statistical theory that blacks are necessarily undercounted at a substantially higher rate than whites is supported by comprehensive studies of the 1970 census.6 In that census 203 million people were counted, 178 million of whom were identified as white and 23 million of whom were identified as black. Through a combination of survey methods, the Census Bureau now estimates that the 1970 census undercounted the black and white populations as shown on this graph:

Extrapolating from the studies, the parties agree that the 1970 census probably undercounted the white population by approximately 2%, or 3.5 million, and the black population by approximately 8%, or 1.8 million. Although the Census Bureau is unable to break the undercount down by state or locality, the parties tentatively agree that the largest undercounts probably occurred in the poorer sections of large cities and in certain rural areas of the South.

At the time of the trial of this case in August 1980, the Bureau had not completed any interim or final figures for the new census because the tabulation of the census returns was still in process. The parties were unable, therefore, to estimate the 1980 undercount. One of plaintiffs' experts testified that "we don't know anything about the undercount in the 1980 census except some very broad assertions and expectations that the racial undercount will not disappear...." (Dr. Taeuber, App. 638). Another expert of plaintiffs testified that no one could predict whether the 1970 undercount would be repeated in the 1980 census: "This doesn't mean that this [the 1970 undercount estimate] will be what happens in 1980. I don't know, I repeat, nor does anyone else" (Dr. Hauser, App. 478).

The Census Director and other officials testified in detail at the trial about the procedures used and the improvements made in conducting the 1980 census. They predicted hopefully that the added efforts would reduce the undercount. They explained that they had made earlier predictions, based on demographic analysis, that the final 1980 head count would be approximately 222 million and that the undercount would be approximately 5 million, or around 2%. They explained the difficulty and time consuming nature of arriving at a reliable estimate of the undercount. They explained that survey techniques and demographic analysis were not sufficiently advanced as sciences to permit distribution or allocation of the estimated undercount to states and localities on anything other than a pro rata basis using population figures from the census. They explained that since 1790 the census enumeration has never been adjusted to reflect an estimated undercount and that in their opinion Congress by statute had prohibited such an adjustment in the figures used for purposes of Congressional apportionment.7 Finally, for a combination of reasons, they expressed severe reservations about making such adjustments to the census head count. The reasons included the questionable reliability of any such estimate at the national level, the absence of any sound scientific theory for allocation of the national undercount, however determined, to the states and cities, the risk of undermining public confidence and public use of the census and the likelihood that the internal consistency of census data will be destroyed if hasty adjustments are made which add to states, localities and enumeration districts numbers of people who may not exist.

After the trial the District Court ordered defendants to estimate the undercount for blacks and hispanics, adjust the national census count accordingly, allocate the adjusted undercount to states and cities on a pro rata basis and withhold certification of the figures until this task is accomplished. Thereafter, the Supreme Court stayed the portion of the District Court's order requiring defendants to withhold certification of the unadjusted figures to the President and the states.

B. The 1980 Undercount Estimates Based on the 1980 Census

Two other significant events have occurred during the pendency of this appeal, events which we notice judicially. See Fed.R.Evid. 201. On December 11, 1980, the Census Bureau announced its decision that it would not on its own initiative, voluntarily adjust the 1980 census count for underenumeration but would obviously comply with any final court orders requiring it to do so. In a lengthy position paper supporting its position (filed with the Court at oral argument on February 12, 1981), the Census Bureau stated that "it is now clear" from the tabulation of 1980 returns that the head count "will exceed the April 1980 estimate by a very large margin." Instead of counting 222 million people, as previously estimated, "the minimum final count for the Nation as a whole has reached 225.2 million" and "now is expected to be between 225.7 and 226.0 million persons." These figures come close to the pre-census estimate of the head count plus the pre-census estimated undercount. In the December 11 document, the Bureau stated its view that the 1980 undercount is probably considerably smaller than in prior censuses due to the improvement of census procedures. It says that "the apparent zero undercount results from the under-enumeration of legal residents being offset by enumeration of illegal residents." Based on these circumstances, the Bureau draws the conclusion: "At present, the Bureau has no sound statistical basis for estimating the true undercount or introducing the adjustments." It further explains this conclusion as follows:

45 Fed.Reg. 82874 (1980).

The second significant event occurred February 23, 1981, when the Census Bureau released its "1980 Census Population Totals for Racial and Spanish Origin Groups in U. S." That report shows the following figures:

                                                          Percent
  United States                1980          1970      Distribution
                                                       1980   1970

  Total ................... 226,504,825   203,211,926  100.0  100.0
White ..................... 188,340,790   177,748,975   83.2   87.5
Black .....................  26,488,218    22,580,289   11.7   11.1
American Indian,
  Eskimo, and Aleut .......   1,418,195       827,268    0.6    0.4
Asian and Pacific
  Islander ................   3,500,636     1,538,721    1.5    0.8
Other .....................   6,756,986       516,673    3.0    0.3
                                      --------------------
Persons of Spanish
  Origin ..................  14,605,883     9,072,602    6.4    4.5
Persons not of
  Spanish Origin .......... 211,898,942   194,139,324   93.6   95.5

The report states:

C. The Remedy Imposed by the District Court

The parties appear to agree that neither the Census Bureau nor any other institution — certainly not the federal courts independently — have the resources or expertise "to develop a statistical and analytical methodology which will permit adjustment of [the census for] critical variables (i. e., selected subnational geographical units and selected characteristics) in a timely fashion." 45 Fed.Reg. 82877 (1980). The undercount cannot be accurately distributed to "subnational geographic units" because we do not know in which communities the uncounted live. That leaves the remedy adopted by the District Court as the only possible remedy for correcting an undercount, the only remedy that anyone has seriously proposed. This remedy is a so-called "synthetic method" of adjustment. This method, simply stated, distributes an undercount, based on race, age, sex or other characteristics, to counties, cities, states or regions in accordance with the actual local head count already obtained by the census for that particular group. It requires a pro rata distribution of the undercounted elements of the population.

The Census Bureau points out that past samples and studies show that there are substantial geographical variations in any undercount and that synthetic distributions "introduce serious distortions not present in the unadjusted data" Id. If it should be the case that all or parts of Minneapolis, Dallas, Pasadena and Pittsburgh are relatively affluent and easy to count, it introduces serious distortions in the census, and in any legislative apportionment based on the census, when we increase their voting strength by adding people who are not there. To give another example of the distortions inherent in the synthetic method, one city whose hispanic population may not be undercounted at all — Coral Gables, Florida — would receive a population increase, and hence more legislative representation, than a rural county in North Florida whose disadvantaged black and white populations were undercounted at a much higher rate than the national average.

The proposed remedy may not redress, but rather may exacerbate the condition to be corrected for another reason as well. If the undercount of whites is on the order of 3 million people (approximately 1.5%) and most of this undercount comes from the approximately 15% of the white population that is hard to count because disadvantaged, as appears to be the case, the synthetic method, employed consistently, would distribute 85% of the white undercount, or 2.5 million people, to the 85% of the white population who are, relatively speaking, better off. Such a distribution would simply have the effect of adding to the voting strength of that segment of the white population which is least undercounted. Since there would appear to be little or no undercounting of the top 25% of the white population, such a distribution has a practical effect of taking voting strength from disadvantaged whites and giving it to advantaged whites.

The same result occurs when we distribute the black undercount. The major portion of an estimated 1 million black undercount (approximately 4%) apparently comes from the approximately 30% of the black population at or below the poverty line because they are hard to count. Yet the synthetic method would add 70% of the black undercount to the voting strength of the more advantaged group, the black middle class. As in the case of whites, distribution of the black undercount according to the synthetic method has the effect of taking voting strength from the disadvantaged black population and giving it disproportionately to the more advantaged members of the same class.

II. JUSTICIABILITY

A. Standing

The issue of standing arises from the language in Article III that "[t]he judicial Power shall extend to ... Cases ... [and] Controversies...." U.S.Const. art. III, § 2. The Supreme Court has held that restrictions upon standing are necessary to guarantee that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), "so that federal courts will not be asked to decide `ill-defined controversies over constitutional issues,' United Public Workers of America v. Mitchell, 330 U.S. 75, 90 [67 S.Ct. 556, 564, 91 L.Ed. 754] (1947), or case[s] ... of `a hypothetical or abstract character,' Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240 [57 S.Ct. 461, 463, 81 L.Ed. 617] (1937)." Id. at 100, 88 S.Ct. at 1952. See also Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 37-39, 96 S.Ct. 1917, 1923-24, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 498-500, 95 S.Ct. 2197, 2204-2205, 45 L.Ed.2d 343 (1975); Linda R.S. v. Richard D., 410 U.S. 614, 616-17, 93 S.Ct. 1146, 1147-48, 35 L.Ed.2d 536 (1973). In Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970), the Supreme Court further characterized its doctrine of standing and reviewability as a "rule of self-restraint" "for its own governance." In addition to the minimum requirements imposed by Article III, courts have developed rules to limit their exercise of jurisdiction in particular cases when prudential considerations militate against invocation of the judicial process. See, e. g., Warth v. Seldin, supra, 422 U.S. at 499-500, 95 S.Ct. at 2205, and cases cited therein.

In Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 72-73, 98 S.Ct. 2620, 2629-2630, 57 L.Ed.2d 595 (1978), the Court stated that the standing rule requires "not only a `distinct and palpable injury' to the plaintiff ... but also a `fairly traceable' causal connection between the claimed injury and the challenged conduct," "or put otherwise, that the exercise of the Court's remedial powers would redress the claimed injuries." Thus, when focusing on the question of a plaintiff's standing the relevant considerations are the existence of an injury, its cause, and the existence of a remedy for redress of the injury.

Our view of the standing issue does not arise because we have any doubts about the values and the general policy that plaintiffs seek to promote in asserting the underlying claim — the desire to achieve equality for a racial minority. Rather it arises from the kind of inquiry that is necessary to dispose of the underlying claim for injunctive relief — an inquiry based on an assumption that plaintiffs will be injured because the Michigan legislature will act in a particular way and an assumption that the injury can be remedied by a pro rata distribution to cities and towns across the nation of whatever national undercount exists. We hold that the first assumption is not warranted. We do not find it necessary to pass on the validity of the second assumption.

Plaintiffs' theory of standing is concisely stated in their brief. They do not claim that the undercount deprives the State of Michigan of congressional representation.

Brief of Appellee 54-57 (emphasis added).

If the Constitution leaves the Michigan legislature free to adjust the census figures reported by the Census Bureau, then the Michigan legislature might adjust the census data, thereby preventing the anticipated harm. No injury, of course, has occurred as yet; this suit is an attempt to preclude the possibility of future harm. If the Michigan legislature may adjust for the undercount, whether the injuries feared by plaintiffs do in fact arise does not depend upon defendants' actions. An independent third party, the Michigan state legislature, would play a necessary role in determining the effects of the census upon plaintiffs.

Contrary to the assertions by plaintiffs, the state legislature is not required by the Constitution to accept in all respects the census data supplied by the Bureau. Article 1, § 2 of the Constitution requires that "as nearly as is practicable" one person's vote is to be worth as much as another's vote in apportioning congressional representation. Kirkpatrick v. Preisler, 394 U.S. 526, 527-28, 89 S.Ct. 1225, 1227, 22 L.Ed.2d 519 (1969), citing Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 529-530, 11 L.Ed.2d 481 (1964). To achieve this goal, limited population variances from district to district will be tolerated only if these variances are "unavoidable despite a good-faith effort to achieve absolute equality, or ... [if] justification is shown." Kirkpatrick v. Preisler, 394 U.S. at 531, 89 S.Ct. at 1229. Kirkpatrick rejected as a justification the claim that population variances were due to legislative attempts to take into account projected population shifts. The Court concluded that when the population changes over the ten year period between censuses, states that are redistricting may properly consider the population shifts. But "[f]indings as to population trends must be thoroughly documented and applied throughout the state in a systematic, not an ad hoc, manner." Id. at 535, 89 S.Ct. at 1231. It is evident that states may use adjusted population figures when redistricting between census years. There is no reason to believe that states would not be free to adjust census figures for redistricting in the census year, as long as the adjustment is "thoroughly documented" and applied in a "systematic" manner. See also Burns v. Richardson, 384 U.S. 73, 91, 86 S.Ct. 1286, 1296, 16 L.Ed.2d 376 (1966) (in state legislative apportionment cases, the Constitution "does not require the States to use total population figures derived from the federal census as the standard" of measurement).

The goal in any redistricting is to assure that "as nearly as is practicable one man's vote in a congressional election is worth as much as another's." Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 529-530, 11 L.Ed.2d 481 (1964). If the Census Bureau had erroneously undercounted the Detroit area by 25%, the Michigan legislature would not be precluded from adjusting the figures for purposes of congressional apportionment. Although the Constitution prohibits subterfuge in adjustment of census figures for purposes of redistricting, it does not constrain adjustment of census figures if thoroughly documented and applied in a systematic manner.

Plaintiffs also argue, however, that even if the state legislature is not constitutionally compelled to use the Bureau's census data, nonetheless it is very probable that the legislature will accept the data without adjustment. Thus the Michigan legislature is not an intervening independent actor, and the Bureau must still be considered the cause of plaintiff's injury. We disagree. Having found no legal compulsion that the state act in a certain way, we may not predict what decisions the state legislature will, in fact, make. The legislature may decide to conduct a recount or to adjust the state population to take the undercount into consideration for the purpose of apportioning Congressional seats. Thus we simply do not know whether plaintiffs will be harmed by the decision of the Bureau not to adjust its figures. The presence of an intervening actor casts doubt — at least at the present time — upon the existence of the injury felt by plaintiffs. The Supreme Court has stated, "[T]he `case or controversy' limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court." Simon, supra, 426 U.S. at 41-42, 96 S.Ct. at 1925-1926.8

B. Ripeness

Standing doctrine imposes constitutional limitations on federal courts' jurisdiction. Even when jurisdiction is technically present, however, the Supreme Court has recognized that "`problems of prematurity and abstractness' ... may prevent adjudication in all but the exceptional case." Buckley v. Valeo, 424 U.S. 1, 114, 96 S.Ct. 612, 680, 46 L.Ed.2d 659 (1976), quoting Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972). Such questions of ripeness, the Court has held, are resolved through two inquiries. Courts must first "determine whether the issues tendered are appropriate for judicial resolution," and then "assess the hardship to the parties if judicial relief is denied at that stage." Toilet Goods Association v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 1523, 18 L.Ed.2d 697 (1967). Plaintiffs satisfy neither inquiry in this case.

The question whether tendered issues are appropriate for judicial resolution clearly "bears close affinity" to questions of standing. Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct. 2197, 2205 n.10, 45 L.Ed.2d 343 (1975). The precise focus of ripeness doctrine is that it is "peculiarly a question of timing." Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). As Justice Fortas has pointed out in the context of pre-enforcement attacks on administrative regulations, the reason for deferring consideration of abstract or premature claims is to allow governmental processes

Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681; Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697; Gardner v. Toilet Goods Association, 387 U.S. 167, 200, 87 S.Ct. 1526, 1543, 18 L.Ed.2d 704 (1967) (Fortas, J., concurring and dissenting). Because the Michigan state legislature has not yet expressed its reaction to the census enumeration, the issue before this Court has not become as "specific" or as "particularized" as it will become after the legislature acts. Heightened public sensitivity to the problems of census undercounts makes past reliance on census figures an uncertain predictor of future legislative action. Even if the ultimate response of the legislature could be predicted with some confidence, however, the fact that it is a representative, deliberative organ of state government rather than a private party must make this Court hesitate to exercise its power so as to narrow the range of solutions it might consider. As the Supreme Court has pointed out, the reasons a governmental body might provide for its actions are important in review of those actions. Toilet Goods Association v. Gardner, 387 U.S. at 163, 87 S.Ct. at 1524.

Consideration of the "hardship to the parties" of a present denial of judicial relief also points toward a refusal to adjudicate plaintiffs' claim. The dilution of voting power on which they base their claim may not occur at all, and cannot occur until the Michigan legislature acts. That fact makes plaintiffs' claim unlike that in Duke Power Co., where the Court rejected a ripeness claim because the plaintiffs would sustain immediate injury were the Court not to act. 438 U.S. at 81, 98 S.Ct. at 2634.

Accordingly, the judgment of the District Court is reversed.

KEITH, Circuit Judge, dissenting.

In a carefully considered and well written opinion, District Judge Horace W. Gilmore concluded that the Census Bureau must adjust its final 1980 census totals to correct the widely acknowledged and differential undercounting of Hispanics and black Americans. Today, the majority reverses in an opinion that is rife with legal and factual misanalysis. I must respectfully dissent.

I.

Although the majority opinion contains a substantial amount of far ranging dicta, its holding is limited, technical, and I think, myopic.1 It rules that this case is not justiciable because either the plaintiffs lack standing or because the controversy presented by the parties is not sufficiently ripe. Judge Merritt, speaking for the majority, rules that "[t]he plaintiffs have shown no judicially cognizable injury and lack standing to sue. The claimed injury is based on a state of affairs not yet in existence, and it is so hypothetical in nature that it does not present a controversy capable of judicial resolution."

I respectfully disagree with both parts of this analysis. I believe that the court misuses standing and ripeness doctrines in order to avoid grappling with a serious question of constitutional harm.2 I would reach the merits, and although I am in substantial agreement with the district court's analysis, I would remand this case to the district court for further factfinding in light of data which has become available subsequent to the district court's decision.

A. Standing

I agree that the majority correctly outlines the modern law of standing. In Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), the Supreme Court established the injury-in-fact requirement for constitutional standing. Subsequent decisions have made clear that in order to show injury-in-fact, a plaintiff must establish a "distinct and palpable injury" and a fairly traceable causal connection between the claimed injury and the challenged conduct. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Orr v. Orr, 440 U.S. 268, 271-73, 99 S.Ct. 1102, 1107-08, 59 L.Ed.2d 306 (1979); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-3, 98 S.Ct. 2620, 2629-30, 57 L.Ed.2d 595 (1978). A plaintiff can satisfy the causation requirement by showing that there is a "substantial likelihood" that the relief requested of the court will redress the claimed injury. Duke Power Co. v. Carolina Environmental Study Group, supra, at 75 n.20, 98 S.Ct. at 2631 n.20; J. Nowak, Handbook On Constitutional Law 73-9 (1978); id. 1978 Pocket Part at 7; L. Tribe, American Constitutional Law 92 (1978). Although the court correctly outlines the law of standing, it misapplies that law to the facts of this case.

The majority does not seriously dispute the fact that plaintiffs have established the requisite injury for standing purposes. The district court found below that the plaintiffs would lose a proportionate amount of political representation equal to the amount of differential undercounting in the federal census. There is little question that such a loss of political representation constitutes the kind of "distinct and palpable" injury necessary to establish constitutional standing. See, e. g., Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). But the majority concludes that the plaintiffs nevertheless lack standing because the second prong of the injury-in-fact requirement is not satisfied. It holds that the plaintiffs' loss of representation is not caused by the Census Bureau's differential undercounting of minorities, but is caused solely by the redistricting decisions of the Michigan state legislature. It bases this finding of intervening causation on the fact that the state legislature is not required by law to use the sub-state population totals supplied by the Bureau. If the state legislature chooses to use Bureau-supplied figures for state reapportionment, the majority holds that this decision would be an independent act breaking the chain of causation between the challenged actions of the Census Bureau and the injury to the plaintiffs. I cannot accept this conclusion because, in my view, it construes the causation component of the injury-in-fact requirement far too strictly.

The causation component of modern standing analysis has been grafted from the causation theory of the law of torts. In tort law, two forms of causation are recognized. The first is "but for" causation or the sine qua non rule. The second is "proximate" or "legal" causation. I think it is clear that under either approach causation exists in the circumstances of this case for purposes of establishing constitutional standing.3

In "but for" causation, a defendant's conduct is not a cause of the event if the event would have occurred without it. See W. Prosser, Law of Torts 238-9 (4th ed. 1971); Smith, Legal Causes in Actions of Tort, 25 Harv.L.Rev. 103-9 (1911). Under this formula, if injury would not have occurred to the plaintiff but for defendant's conduct, the defendant is liable for the whole injury "regardless of its position in the string of acts leading to the injury though one or more of the other causes contributing to the result also involved wrongdoing on the part of other persons." F. Harper & F. James, 2 The Law of Torts 1121-22 (1956).4

Proximate cause, on the other hand, refers to the "more or less undefined considerations which limit liability even where the fact of causation is clearly established." Prosser, supra at 244. Under proximate causation theory, an act occurring after the defendant's action and before the plaintiff's injury can be an "intervening cause", i. e. one which erases any responsibility on the defendant's part. However, "[i]f the intervening cause is one which in ordinary experience is reasonably likely to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, he may be negligent only for that reason." Id. at 272. In other words, "[f]oreseeable intervening forces are within the scope of the original risk, and hence of the defendant's negligence. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's responsibility." Id. at 273.5

If the Census Bureau failed to supply sub-state population figures, containing a differential undercounting of minorities, the state legislature could not then reapportion on the basis of those figures. Therefore, "but for" cause is present. As previously mentioned, the district court found that the plaintiffs would lose a proportionate amount of voting representation equal to the amount of the differential undercounting in the federal census. This is the claimed injury of the plaintiffs. It was found by the district court to exist, and for standing purposes this finding is entitled to great weight. The plaintiff could not suffer this injury which was found to exist by the district court "but for" the Bureau's challenged action. Thus, the causation requirement under the first formulation is necessarily met.

The Census Bureau's differential undercounting is also the proximate cause of the plaintiff's injury. It is true that the undercount is not the direct cause of the state's malapportionment.6 However the Michigan legislature's redistricting decision is not an intervening cause since the legislature's use of the defective figures is not an unforeseeable consequence of the Bureau's actions. The parties do not dispute the fact that in its history Michigan has never failed to use federally supplied sub-state population figures. Moreover, the Bureau should know that in recent American history the states have almost invariably used federally-supplied figures for reapportionment.7 In addition, the Bureau should have been aware of the fact that if the state chooses not to use the federally-supplied figures it would have to use data at least as accurate as that supplied by the Bureau. See Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). Michigan has no already established bureaucracy to gather such data and perhaps has neither the financial nor technical capacity to do so. In fact, since 1959 state law has provided that the state and sub-state totals of the federal decennial census shall be used by the State of Michigan for all election purposes.8

For the reasons outlined above, it is certainly foreseeable that the state would reapportion on the basis of the inaccurate figures. Therefore, any loss of state representation suffered by the plaintiffs is within the scope of the foreseeable risk created by the Bureau's failure to accurately count minorities. Accordingly, the Bureau's action has to be a cause of the injury and plaintiffs have standing to challenge the conduct.

The majority finds that the decision of the state legislature to reapportion on the basis of federally-supplied totals breaks the chain of causation between plaintiffs and the Bureau because as "[a]n independent third party, the Michigan state legislature would play a necessary role in determining the effects of the census upon plaintiffs." I think this rationale misses the point. The state legislature's action would certainly be necessary in order to create the plaintiffs' injury, but this fact does not mean that other concurrent causes are not present as well. If plaintiffs' injury would not occur "but for" the Bureau's differential undercounting, then in my view the undercounting is a concurrent cause of the injury and the causation requirement is satisfied.

However, if "but for" causation is not enough to establish standing here, then certainly proximate cause does. If the Bureau could reasonably foresee that the state legislature would use the figures in such a way as to cause the claimed injury to the plaintiffs, then the actions of the state — even if it is an independent party — cannot break the chain of causation.

Recent decisions support my view of the causation requirement's application here. In Duke Power Co. v. Environmental Study Group, supra, the district court discerned a "but for" causal connection between the existence of the Price Anderson Act, the construction of nuclear power plants in the country, and the adverse consequences alleged by the plaintiffs. The petitioners challenged this finding of causation on two grounds in the Supreme Court: (1) that the particular nuclear power plants in question would have been constructed by private companies without the Price Anderson Act's limitation on liability; and (2) that if Congress had not passed the Price Anderson Act it may well have chosen to pursue the nuclear program as a government monopoly — as it had done from 1946 to 1954. The Supreme Court rejected both contentions. It held that industry testimony at Congressional hearings on the passage of the Act indicated that the industry would not develop nuclear power facilities without a limitation on liability. In addition, it rejected the contention that the Price Anderson Act was not a "but for" cause of any adverse consequences to the plaintiffs since the government would have undertaken development of nuclear power on its own. It held that "[w]hatever the ultimate accuracy of this speculation, it is not a response to the simple proposition that private power companies now do in fact operate the nuclear-powered generating plants injuring the appellees, and that their participation would not have occurred but for the enactment and implementation of the Price Anderson Act." Id., 438 U.S. at 77-8, 98 S.Ct. at 2632-33. (emphasis added)

In Duke Power, "but for" causation was met because the claimed injury of the plaintiff could not have occurred without the presence of the Price Anderson Act. In this case, the plaintiffs' injury would not occur without the defendants' differential undercounting of minorities. Therefore, causation for purposes of standing has to be present in the instant case as well.

In Duke Power, the direct cause of the plaintiff's injury was the decision of the private utility companies to construct the nuclear power plants at issue. The effect of the Price Anderson Act was one step removed. Nevertheless the Supreme Court found a causal nexus between the operation of the Price Anderson Act and the claimed injury of the plaintiffs. As I have previously mentioned, an act does not have to be the last in a "string of acts leading to the [plaintiff's] injury" in order for it to be a "but for" cause. See F. Harper and F. James, supra at 11. The sole issue is whether the injury would have resulted without the occurrence of the act. In this case, the defendants' challenged action is not the direct cause of plaintiffs' injury. However, as in Duke Power, the plaintiffs' injury would not result without the occurrence of the defendants' challenged conduct. Thus, causation sufficient enough to establish standing is present even though the defendants' action is not a direct cause.

The Court in Duke Power did not specifically address the issue of intervening causation. But, it is clear that construction of nuclear plants and the resultant injury to the plaintiffs were foreseeable results of passage of the Price Anderson Act. This is evident because the Court did not find that the decision of the companies to construct nuclear power plants was an intervening cause that broke the chain of causation between the Price Anderson Act and the claimed injury. The company argued that in the absence of the Act, the government might have constructed such plants on its own or that private companies might have raised the necessary funding under an alternate scheme. However, the Court ruled that prior cases did not require "a party seeking to invoke federal jurisdiction to negate the kind of speculative and hypothetical possibilities suggested in order to demonstrate the likely effectiveness of judicial relief." Id. at 78, 98 S.Ct. at 2633. The same analysis applies here. In order to demonstrate a traceable link from the Bureau's actions to their claimed injury, the plaintiffs should not be required to negate the "speculative and hypothetical possibilities" that Michigan might: (1) change its long standing law requiring the sole use of federal census totals; and either (2) develop the capacity to conduct an accurate state census or (3) develop the capacity to make accurate adjustments of federal census data. The decision of the Michigan legislature to use raw federally-supplied sub-state totals is a foreseeable consequence of the Bureau's supplying of those figures. Thus, as in Duke Power, there is no intervening causation present.

The case at bar is distinguishable from Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). In that decision, the Supreme Court found that § 501(c)(3) of the Internal Revenue Code was not the cause of the plaintiffs' failure to receive free emergency medical treatment from the defendant hospital. The Court noted that: "It is purely speculative whether the denials of service specified in the complaint fairly can be traced to petitioners' `encouragement' or instead result from decisions made by the hospitals without regard to the tax implications." Id. at 43, 96 S.Ct. at 1926. In other words, § 501(c)(3) was not a "but for" cause of the claimed injury and plaintiffs necessarily had no standing to bring the action. As previously discussed, that is not the case here; differential undercounting is a cause of the plaintiffs' injury.

Simon apparently provides the basis for the majority's invocation of intervening cause analysis in this case. In Simon, the Supreme Court did state that "Article III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court." 426 U.S. at 41-2, 96 S.Ct. at 1925-26. (emphasis added). However, since § 501(c)(3) was not even a "but for" cause of the plaintiff's alleged injury, the Court did not have to explain when for standing purposes an injury is caused by one precedent and not by another. It is extremely doubtful that the above language in Simon precludes concurrent causation in the law of standing.9

I think there can be no dispute about the fact that the Census Bureau's differential undercounting is a concurrent cause here. Accordingly, for the reasons discussed above, I would find standing for the plaintiffs to bring this action.

B. Ripeness

The majority correctly outlines the Ripeness doctrine. Unfortunately it misapplies this doctrine, just as it misapplies standing. The majority holds that it would be better to wait until the Michigan legislature acts on reapportionment because only then would the issues here be particularized enough for judicial resolution. I disagree. I think the court's invocation of ripeness as a reason to reverse the district court amounts to another smokescreen to justify ducking important questions. The issues presented by this case should be decided now.

First, for reasons outlined above, I cannot agree with the majority's statement that "[h]eightened public sensitivity to the problems of census undercounts makes past reliance on census figures an uncertain predicator of future legislative action." The court speculates that the Michigan legislature will depart from its invariable past practice and either adjust federally-supplied census data or use their own data for reapportionment. For the reasons outlined above, I see no reason to believe this will occur.

Second, there is no reason to defer to the judgment of a legislative body in this case. The key questions pertaining to the merits of this case are: Is there a differential undercount? Can it be corrected? To answer these questions requires the analysis of expert testimony. If the expert testimony shows that there is an ascertainable differential undercount which can be corrected, there is but one permissible conclusion — it must be corrected. A state legislature has no more expertise than a court does in this area, and it is neither necessary nor proper to refer this case to the Michigan legislature so that it can give us its advisory opinion on these questions.

In fact, I think that the Michigan legislature is not the proper forum for the issues presented by this case. A proposal in the Michigan legislature to correct census figures would provoke a heated controversy, in which the citizens of Detroit and the citizens of other areas suffering high differential undercounting would be politically handicapped. Their strength and representation in the legislature is directly weakened by the very phenomenon at issue — differential census undercounting. The net result of legislative consideration of this issue is likely to be a decision dictated by politics and not dictated by objective appraisal of the expert demographic testimony. It would probably be too much to expect state representatives from areas which have benefited politically from differential undercounting to in effect vote themselves out of office and increase the representation of the citizens of Detroit. The Supreme Court recognized this problem when it held in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), that the protection of the Constitutional right of equal representation could not be left solely to the legislatures. Because the vindication of this most important of Constitutional rights is a responsibility of the courts, I think we cannot put off a decision on the merits here.

Third, and finally, I think that failure to rule now will cause hardship to both parties and to the public interest. The issues presented by this case are too important. Avoiding these issues as the majority does will not make them go away. At the most, all that the majority opinion does is temporarily change the forum — from federal court to the Michigan legislature. The Michigan legislature will then have to decide whether to adjust the census figures and, if so, by how much. Regardless of what decision the legislature reaches, someone will be unhappy with it. We can be assured that if the Michigan legislature fails to adjust the census figures, or adjusts the figures only slightly, that the plaintiffs will then return to federal court. But the majority is in error in its assumption that the litigation will end if the Michigan legislature grants relief to the plaintiffs and adjusts the census figures in a manner acceptable to them. If the Michigan legislature does make an undercount adjustment, it is certain that disgruntled voters and/or elected officials will promptly run to federal court and file a challenge to the adjustment. The stakes involved are high, and any adjustment must meet the standards outlined in Wesberry v. Sanders, supra, and its progeny. As a result, there is every incentive for affected persons, i. e. those residing in areas containing relatively few minorities, to challenge any adjustment.10

Thus it is clear that the issues presented by this case will require judicial resolution sooner or later. The majority prefers later. Unfortunately, this will cause great hardship to all concerned. If a federal court disagrees with the state's reapportionment determinations, the court will have to order reapportionment using the census figures it has determined are appropriate. The time, effort and money involved will be greater at that later date than now.

Given the political considerations discussed above, I think there is a significant risk that a court's undercount determination will differ from the Michigan legislature's. As I have said, if this happens there will be hardship to all concerned. Moreover, there will exist tremendous and unacceptable uncertainty regarding electoral boundaries until the undercount issue is resolved.

In sum, the issues presented are ripe and should be resolved now. It is unlikely that the Michigan legislature will change things or that its deliberations will be helpful to us. Most important, no matter what the Michigan legislature does, we will have to decide the issues presented by this case anyway. There is simply no reason to delay a decision on the merits. On the contrary, I think that it is the height of folly not to decide this case given both the importance of the issues and the problems engendered by postponing a decision.

II.

As previously stated, the district court below ruled that the defendants must adjust their national, state, and sub-state census totals for 1980 to correct the differential undercounting of blacks and Hispanics. The court also ruled that the defendants could select at their discretion any available methods of adjustment "so long as they [the methods] are statistically defensible." These rulings are based on sound legal principles and are supported by the evidence at trial. However, new data released since the entry of judgment against the defendants leads me to the conclusion that the case should be remanded to the district court for further fact-finding, since this information was not available to the court at the time it reached its decision.

A.

I think that the district court's formulation of the law governing this controversy is unassailable. Simply stated, the court held that the Secretary of Commerce and the Bureau of the Census are bound by the Constitution to conduct the decennial census as accurately as possible. This holding follows from the Supreme Court's recognition in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), of the constitutional right of equal representation — that one citizen's vote should not weigh any more or less heavily than another citizen's vote. Later, the Supreme Court went on to hold that equal representation requires that the apportionment of representation in the United States House of Representatives and in the state legislatures must be based "as nearly as is practicable" on precise mathematical equality. See Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964) and Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969).

It goes without saying that unless the population base for reapportionment is accurately determined, there can be no such precise mathematical equality between voting districts. If an inaccurate enumeration takes place, then some voting districts by virtue of differential undercounting would contain more persons than others.11 In these circumstances, the deleterious effect on equality of representation might be as serious as any that would occur from gerrymandering. See Note, Demography and Distrust: Constitutional Issues and the Federal Census, 94 Harv.L.Rev. 841, 860 (1981).

Since the sole constitutional function of the decennial census is to provide a population base for reapportionment of Congressional districts,12 the Census Bureau is bound by the Constitution to count people as accurately as possible.13 Otherwise, the promise of Baker v. Carr would, in my opinion, be rendered a teasing illusion.

B.

The district court found that the Secretary of Commerce and the Census Bureau did not conduct the 1980 census as accurately as possible since they did not adjust the final tally to correct for the differential undercounting of blacks and Hispanics. The court found persuasive the plaintiffs' expert testimony which established that there has been a perennial differential undercounting of blacks and Hispanics. In fact, testimony by Dr. Philip M. Hauser, University of Chicago Professor of Urban Sociology and former Acting Director of the U. S. Census Bureau, established that under the original Constitution "the slaves [in 1790 were] ... counted as three-fifths of a person, but [now almost 200 years later] the black male twenty-eight years of age counts as 78 per cent of a person."14 The district court also found that the extent and nature of this differential undercounting could be accurately determined,15 and that the state of the statistical art allowed the Census Bureau to impute into the final census tally the number of persons missed during the headcount.16 According to the testimony, statistical adjustment would yield a more accurate estimate of the number of persons within the United States than would result from current Bureau counting procedures.17

Because the trial occurred before release of preliminary 1980 census data, the expert witnesses below based their testimony on data derived from past censuses and from projections of 1980 census results.18 The parties did stipulate that there would be an undercounting of persons within the United States in 1980, and that the Bureau would undercount blacks and Hispanics at a higher rate than whites.19 However, there was no stipulation as to the rate of this differential undercounting for 1980.

The only way to determine actual differential undercounts is to compare the census headcount with demographic estimates of the nation's true population. As the majority notes, the Census Bureau argues on appeal that it cannot determine the actual differential undercount for 1980 because of the presence of large numbers of illegal aliens within the United States. Preliminary 1980 census figures released after the trial below show that the Bureau has counted approximately 226 million people. Since earlier demographic studies indicated that about 226 million people would be within the United States on April 1, 1980, the preliminary census data on the 1980 headcount substantially equals the available demographic estimates.20 Thus, the defendants assert that no statistical adjustment of the 1980 headcount is possible since there are no available means to measure how many illegal aliens have been counted. They conclude that there is no way to determine how many blacks and Hispanics were missed in the 1980 headcount.

In its recitation of the facts, the majority seems to accept the Bureau's analysis as true.21 However, the plaintiffs have not had an opportunity to rebut the Census Bureau's analysis since the plaintiffs' experts testified before the release of the preliminary 1980 census data. It is for this reason that I would remand this case to the district court for further fact-finding. If the plaintiffs can show that there are available methods to measure the differential undercounting of blacks and Hispanics, then the district court's conclusion is correct — statistical adjustment to correct the differential undercounting is feasible. I think the plaintiffs should have this opportunity. They should be allowed to submit additional evidence on remand, particularly in view of the evidence introduced in Carey v. Klutznick, 508 F.Supp. 420 (S.D.N.Y.1980) which indicates that there may be ways to accurately measure the 1980 undercount.22

Accordingly, I would remand this case to the district court.