The opinion of the court was delivered by: STANDISH
WILLIAM L. STANDISH, UNITED STATES DISTRICT JUDGE
This is a civil action in which plaintiffs, the states of Alabama, Kansas and Pennsylvania, various members of the House of Representatives, the Coalition for Constitutional Reapportionment (CCR), and the Federation for American Immigration Reform (FAIR), have filed a complaint challenging the inclusion of illegal aliens
in the 1990 census population figures for purposes of congressional apportionment. Plaintiffs seek a declaratory judgment that an apportionment of members of the House of Representatives, among the states, based upon population figures which include illegal aliens, is unconstitutional or otherwise unlawful. Plaintiff's further request injunctive relief enjoining defendants from intentionally including illegal aliens as part of the enumeration upon which such apportionment is made and directing defendants to develop a method of excluding illegal aliens from the census figures used for such apportionment. Defendants, the U.S. Secretary of Commerce, the U.S. Department of Commerce, the Director of the U.S. Bureau of the Census, the U.S. Bureau of the Census, the Clerk of the U.S. House of Representatives and the United States of America, challenge the standing of plaintiffs to maintain this action, and have moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, the motion will be granted.
In a motion for summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 784 (3d Cir. 1978); Fed.R.Civ.P. 56(c). In the present case, the court concludes that it lacks jurisdiction because the plaintiffs do not possess the requisite standing and, therefore, summary judgment will be entered in favor of defendants and against plaintiffs.
Plaintiffs are 42 members of the House of Representatives, suing in their individual capacities as residents and voters of their states, the states of Pennsylvania, Kansas and Alabama, and two organizations, FAIR and CCR, suing as representatives on behalf of their members who are residents of the 50 states. Defendants are the federal government agencies and officials responsible for conducting the census and apportioning members of the House of Representatives.
Plaintiffs contend that it is unconstitutional or otherwise unlawful to apportion members of the House of Representatives based upon population figures which include illegal aliens. Plaintiffs claim that the inclusion of illegal aliens in census figures for apportionment purposes violates Article I, § 2 and Article II, § 1 of the Constitution. Further, plaintiffs argue that the inclusion of illegal aliens for apportionment purposes will result in states that have large numbers of illegal aliens gaining additional seats, while states with smaller numbers of illegal aliens will not, and therefore, the votes of persons in states with smaller numbers of illegal aliens will be diluted. Plaintiffs do not seek to enjoin the inclusion of illegal aliens in the census figures in general but only to enjoin the inclusion of illegal aliens for purposes of apportionment of members of the House of Representatives. Plaintiffs request this court to direct defendants to develop an appropriate method for excluding illegal aliens from the census figures used to apportion members of the House of Representatives.
Defendants contend that they are constitutionally mandated by Article I, Section 2 of the Constitution, as amended by the Fourteenth Amendment, to count all persons in the 1990 census, including illegal aliens, for purposes of apportionment of the membership of the House of Representatives. Defendants further emphasize that in accordance with Article I, Section 2, of the Constitution, as amended by the Fourteenth Amendment, the federal government and its officers and agencies have, in each decennial census conducted for the past two hundred years, counted all persons residing in the United States, except those persons expressly excluded by the Constitution.
The threshold question which the court must address is whether it has jurisdiction to decide the merits of this case. Article III of the Constitution limits the jurisdiction of federal courts to the "resolution of 'cases' and 'controversies'". Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Valley Forge College v. Americans United, 454 U.S. 464, 471, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). An aspect of the limitation of Article III is the doctrine of standing. Page v. Schweiker, 786 F.2d 150 (3d Cir. 1986). Thus, in order to invoke the jurisdiction of this court, plaintiffs must first demonstrate that they have standing to challenge the conduct of defendants. "The standing question is whether [a] plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf". Warth v. Seldin, 422 U.S. 490, 498-99, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), citing, Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962) (emphasis in original) (footnote omitted).
In order for plaintiffs to establish the requisite standing, they must demonstrate "at an irreducible minimum", (1) that they personally have suffered some actual or threatened injury (injury-in-fact); (2) that the injury can be traced to the challenged conduct of defendant (causation) and (3) that the injury is likely to be redressed by a favorable judicial decision (redressability). Valley Forge, supra, 454 U.S. at 472; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976); Doherty v. Rutgers School of Law, 651 F.2d 893, 899 (3d Cir. 1981).
There are three classes of plaintiffs whose standing is challenged by defendants: (1) the individual plaintiffs, various members of the House of Representatives; (2) the state plaintiffs, Alabama, Kansas and Pennsylvania and (3) the organizational plaintiffs, CCR and FAIR. The court will analyze the standing of each group of plaintiffs with regard to the criteria above. In determining whether each class of plaintiffs has standing, the court must accept as true the allegations in plaintiffs' complaint and must construe it in the light most favorable to plaintiffs. Warth, supra, 422 U.S. at 501.
The individual plaintiffs are members of the House of Representatives, suing in their individual capacities as residents and voters of their respective states. Plaintiffs do not allege injury on the basis of their status as members of the House of Representatives.
To meet the injury-in-fact requirement, a plaintiff must show a "distinct and palpable" injury. Warth, supra, 422 U.S. at 501. Threatened harm can provide the basis for a finding of injury-in-fact. Valley Forge, supra. Where the harm is threatened, "one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough". Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979), quoting, Pennsylvania v. West Virginia, 262 U.S. 553, 593, 67 L. Ed. 1117, 43 S. Ct. 658 (1923) (other citations omitted). "However, [a] plaintiff must show that he 'has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both 'real and immediate,' not conjectural or hypothetical." Flaherty v. Torquato, 623 F. Supp. 55, 57 (W.D. Pa. 1985), aff'd, 800 F.2d 1133 (1986), citing Los Angeles v. Lyons, 461 U.S. 95, 102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983).
The individual plaintiffs in the present case contend that they satisfy the injury-in-fact requirement because they are able to demonstrate a realistic danger of future injury. They argue that the realistic danger they suffer is the danger that plaintiffs will lose both representation in the House, and presidential electors, if defendants count illegal aliens in the 1990 census for purposes of apportionment.
In 1980, the year of the last decennial census, the United States District Court for the District of Columbia, convened as a three-judge court, addressed the question of standing of plaintiffs similarly challenging the inclusion of illegal aliens in the 1980 census population figures for apportionment purposes. Federation for American Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564, 570 (D.D.C. 1980), appeal dismissed, 447 U.S. 916, 65 L. Ed. 2d 1109, 100 S. Ct. 3505 (1980) (" FAIR "). In FAIR, members of the House of Representatives, and others, filed suit to enjoin the counting of illegal aliens as part of the 1980 census, contending that such conduct would result in an unconstitutional apportionment of the House of Representatives. In addressing the question of standing of the individual plaintiffs, the FAIR court stated:
There is no doubt that individuals claiming that their votes are diluted because their Representative represents a greater number of constituents than do other Representatives in the same assembly have standing to challenge the apportionment scheme. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). In such a case, the question is "whether the claims of malapportionment . . . are in fact made by plaintiffs whose representation would be improved if those claims were to prevail." Ripon Society v. Nat'l Rep. Party, 173 U.S. App. D.C. 350, 355, 525 F.2d 567, 572 (1975) (en banc), cert. denied, 424 U.S. 933, 96 S. Ct. 1147, 47 L. Ed. 2d 341, 96 S. Ct. 1148 (1976). As expressed by the court in Baker v. Carr, assuming that the plaintiffs' allegations assert a legally cognizable injury, it is enough for standing purposes that the plaintiffs "are among those who have sustained it." 369 U.S. at 208, 82 S. Ct. at 705.
FAIR, supra, 486 F. Supp. at 568-69.
In FAIR, the court held that the plaintiffs failed to demonstrate that they had an interest of their own at stake and thus had failed to establish the necessary injury-in-fact. The court reasoned that a finding of standing would require that the injury-in-fact requirement be based on conjecture and speculation. The court found:
In order to conclude that they have standing, we would have to assume that the Census Bureau will in fact be fairly successful in its efforts to include aliens in the census count, that the mathematical application of the method of equal proportions to the population figures will be affected by the inclusion of these figures, and that Pennsylvania will be among those states which will benefit.
FAIR, supra, 486 F. Supp. at 571.
The FAIR court considered charts submitted by the plaintiffs "showing their estimation of the effects on congressional apportionment given a variety of different possible assumptions about the illegal alien populations". Id. The Court found, however, that the charts showed that certain states would be affected by the inclusion of illegal aliens only based on certain assumptions about the size and distribution of the illegal alien population. The court stated:
While we may assume, and indeed be convinced that there will be some effect on apportionment by the inclusion of illegal aliens in the population base, the plaintiffs have failed to demonstrate with requisite specificity where that effect will fall, so that we would be able to find a "concrete injury" to some particular resident of some particular state.
FAIR, supra, 486 F. Supp. at 572 (emphasis added).
The court found that the plaintiffs could "do no more than speculate as to which states might gain and which might lose representation." FAIR, supra, 486 F. Supp. at 570. The plaintiffs were unable to show that his or her vote would be affected, or that plaintiffs, themselves, would be harmed by the conduct of the defendants. The plaintiffs failed to establish that any particular plaintiff had an interest at stake and thus, plaintiffs lacked standing to challenge the proposed conduct of the Census Bureau in the 1980 census.
The interest of the individual plaintiffs in the present case is no less speculative than the interest of the plaintiffs in FAIR. Plaintiffs attempt to distinguish FAIR on the grounds that, in FAIR, the plaintiffs had offered only speculation and conjecture to show where the injury would occur as the result of the inclusion of illegal aliens in the apportionment base. Here, plaintiffs contend that they have cured the problem of speculation that was present in FAIR by presenting evidence and establishing facts ...