inmates, many have of record no prior address. Inmates of homes for the aged will assume permanent residences there.
In each of these cases, the persons in question draw upon the services of the communities in which their military installations, colleges and institutions are located. The communities in which these persons are residing must plan and develop their public resources to provide for all residents. No abuse of discretion is found in enumerating these persons as inhabitants of these communities rather than as residents of a presumptive home to which many may not be expected to return. Moreover, there is no reason why different criteria should be applied to these persons than are applied to the population at large, many of which may have a status which may be characterized as equally transient on the date of the census.
Plaintiffs also challenge the methods whereby the Bureau enumerates military servicemen and Government personnel abroad as residents of the States from whence they came and not as residents of any particular address or political subdivision within that State. Enumerating these persons as residents of particular addresses or political subdivisions presents the same problems as previously discussed with regard to military servicemen stationed within the United States and college students. Although military servicemen and Government personnel abroad may not even return to the State from whence they came, unlike military servicemen and Government personnel living within the United States, these persons cannot be enumerated as of any other State. There are presently a large number of members of the Armed Services abroad and the most feasible method of enumerating them as among the population of the United States is to count them back to the States wherein they were residents before entering the Armed Services.
Plaintiffs further challenge the failure of the bureau to enumerate as residents of either a State or home residence private citizens who are living and working abroad. The short of the matter is that the Bureau has no means of locating these people.
On review of the various methods of enumeration challenged here, the Court finds that plaintiffs have failed to establish that these methods are without rational basis. The mere fact that an alternative method of enumeration may exist does not lead to the conclusion that the method employed is arbitrary or any less within the discretion of the Bureau. Nor does the fact that the Bureau has not conducted a statistical survey to determine how many servicemen, college students and institutional inmates in fact return to home States, political subdivisions or addresses compel the conclusion that the methods employed are without rational basis.
Plaintiffs assert that the present methods of enumerating military personnel, college students and institutional inmates fail to meet the objective of Article I, Section 2 of the Constitution, which is that of "making equal representation for equal numbers of people the fundamental goal for the House of Representatives."
The methods used, plaintiffs contend, also deny these persons equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment, in that the right of each of them to vote in elections at all levels of government allegedly is subjected to a "debasement or dilution" as a result of the utilization of these methods of enumeration. See Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964).
Clearly, under the Constitution, total population is a proper basis for the apportionment of both congressional and State legislative districts. Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969); Burns v. Richardson, 384 U.S. 73, 86 S. Ct. 1286, 16 L. Ed. 2d 376 (1966); Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964); Reynolds v. Sims, supra ; Wesberry v. Sanders, supra.
Whether a particular group of persons is to be included in the population base of one State rather than another, or one district rather than another, involves a matter of discretion which is not subject to challenge unless the choice made is prohibited by the Constitution. Burns v. Richardson, supra, 384 U.S., at 92, 86 S. Ct. 1286. In the Burns case, the Supreme Court was presented with a challenge to the method by which the State of Hawaii apportioned its House of Representatives and sought to apportion its Senate. Hawaii used a registered voter base rather than total population base due to the large number of military personnel stationed at installations concentrated in particular counties in Hawaii. The Court approved the use of the registered voter base upon finding that the registered voters distribution, although not approximating total population distribution, did approximate the distribution of State citizens in Hawaii. The Supreme Court stated at p. 92, 86 S. Ct. at p. 1296-1297:
"Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids, cf., e.g., Carrington v. Rash, 380 U.S. 89, 85 S. Ct. 775, 13 L. Ed. 2d 675, the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby." (Emphasis supplied.)
The Court believes that the aforequoted language is sufficiently broad to indicate that not only the States have discretion in determining what groups of persons are to be included within an apportionment base but also that the Federal Government has such discretion. Plaintiffs have not shown that the methods of enumeration chosen by the Bureau of the Census are ones which the Constitution forbids.
This matter came before the Court upon plaintiffs' Motion for a Preliminary Injunction and Declaratory Relief. At the conclusion of the evidentiary hearing upon this Motion, counsel for the respective parties agreed that all material facts had been placed before the Court and that the Court should render a final adjudication thereon. The Court will act accordingly.
Declaratory relief will be granted in accordance with this Opinion. Injunctive relief will be denied. Plaintiffs have not prevailed on the merits. Even if plaintiffs had so prevailed, injunctive relief in their favor would be denied as detrimental to the public interest. Taking a new census would result in a loss of over $200 million to American taxpayers. Moreover, reapportionment of the United States House of Representatives could not be accomplished in time for the 93rd Congress, as required by the Constitution and Section 2a of Title 2, U.S.C.
This opinion shall constitute the Court's findings of fact and conclusions of law consistent with Rule 52(a) of the Federal Rules of Civil Procedure.
An appropriate order is entered.
Now, this 19th day of November 1970, consistent with the within opinion, it is ordered and decreed that plaintiffs' request for injunctive relief be and the same is hereby denied, it is further ordered that declaratory judgment be and the same is hereby entered in favor of the defendants and against the plaintiffs, and it is declared:
(1) That the Bureau's procedure of enumerating members of the Armed Services stationed in the United States, college students and inmates of institutions as residents of the places where their military institutions, colleges and institutions are located for purposes of the decennial census is a reasonable exercise of the discretion afforded to the Bureau by the Census Acts and is not violative of either Article I, Section 2 of the Constitution or the Fifth Amendment thereto, and (2) That the Bureau's procedure of enumerating members of the Armed Services and Government personnel abroad as residents of their home States for purposes of the decennial census is a reasonable exercise of the discretion afforded to the Bureau by the Census Acts and is not violative of either Article I, Section 2 of the Constitution or the Fifth Amendment thereto.
It is further ordered that the Clerk of Court send a copy of this Opinion and Order to each party including each intervenor herein, and all counsel of record.