UTAH et al. v. EVANS, SECRETARY OF COMMERCE, et al.

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UTAH et al. v. EVANS, SECRETARY OF COMMERCE,
et al.
appeal from the united states district court for the
district of utah
No. 01–714. Argued March 27, 2002—Decided June 20, 2002
The Census Bureau derives most census information from forms it mails
to a nationwide list of addresses. If no one replies to a particular form
or the information supplied is confusing, contradictory, or incomplete,
the Bureau follows up with visits by its field personnel. Occasionally,
despite the visits, the Bureau may still have conflicting indications
about, e. g., whether a listed address is a housing unit, office building, or
vacant lot, whether a residence is vacant or occupied, or the number
of persons in a unit. The Bureau may then use a methodology called
“imputation,” by which it infers that the address or unit about which
it is uncertain has the same population characteristics as those of its
geographically closest neighbor of the same type (i. e., apartment or
single-family dwelling) that did not return a form. In the year 2000
census, the Bureau used “hot-deck imputation” to increase the total pop-
ulation count by about 0.4%. But because this small percentage was
spread unevenly across the country, it made a difference in the appor-
tionment of congressional Representatives. In particular, imputation
increased North Carolina’s population by 0.4% while increasing Utah’s
by only 0.2%, so that North Carolina will receive one more Representa-
tive and Utah one less than if the Bureau had simply filled relevant
informational gaps by counting the related number of individuals as
zero. Utah brought this suit against appellees, the officials charged
with conducting the census, claiming that the Bureau’s use of “hot-deck
imputation” violates 13 U. S. C. § 195, which prohibits use of “the statis-
tical method known as ‘sampling,’ ” and is inconsistent with the Consti-
tution’s statement that an “actual Enumeration shall be made,” Art. I,
§ 2, cl. 3. Utah sought an injunction compelling appellees to change the
official census results. North Carolina intervened. The District Court
found for the Bureau.
Held:
1. The Court rejects North Carolina’s argument that Utah lacks
standing because this action is not a “Case” or “Controversy,” Art. III,
§ 2, in that the federal courts do not have the power to “redress” the
“injury” that appellees allegedly “caused” Utah, e. g., Lujan v. Defend-
ers of Wildlife, 504 U. S. 555, 561. Because there is no significant dif-

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ference between Utah and the plaintiff in Franklin v. Massachusetts,
505 U. S. 788, in which the Court rejected a similar standing argument,
North Carolina must convince the Court that it should reconsider
Franklin. It has not done so. It argues that ordering appellees to
recalculate the census numbers and recertify the official result cannot
help Utah because North Carolina is “entitled” to the number of Repre-
sentatives already certified to it under the statutes that require a decen-
nial census, 13 U. S. C. § 141(a); mandate that the results be reported to
the President, § 141(b); obligate the President to send Congress a state-
ment showing the number of Representatives to which each State is
“entitled” by the census data, 2 U. S. C. § 2a(a); and specify that the
House must then send each State a certificate of the number of Repre-
sentatives to which it is “entitled.” The statutes also say that once all
that is done, each State “shall be entitled” to the number of Representa-
tives the “certificate” specifies. § 2a(b). Unlike North Carolina, the
Court does not read these statutes as absolutely barring a certificate’s
revision in all cases. The statutes do not expressly address what is to
occur in the case of a serious mistake—say, a clerical, mathematical,
or calculation error in census data or in its transposition. Guided by
Franklin, which found standing despite § 2a’s presence, the Court reads
the statute as permitting certificate revision in such cases of error, in-
cluding cases of court-determined legal error leading to a court-required
revision of the underlying census report. So read, the statute poses no
legal bar to “redress.” Nor does Pub. L. 105–119, Title II, § 209(b), 111
Stat. 2481, which entitles “[a]ny person aggrieved by the use of any
[unlawful] statistical method” to bring “a civil action” for declaratory
or injunctive “relief against the use of such method.” Despite North
Carolina’s argument that this statute implicitly forbids a suit after the
census’ conclusion, the statute does not say that and does not explain
why Congress would wish to deprive of its day in court a State that did
not learn of a counting method’s representational consequences until
after the census’ completion—and hence had little, if any, incentive to
bring a precensus action. The Court reads limitations on its jurisdic-
tion narrowly, see, e. g., Webster v. Doe, 486 U. S. 592, 603, and will not
read into a statute an unexpressed congressional intent to bar jurisdic-
tion the Court has previously exercised, e. g., Franklin, supra. Be-
cause neither statute poses an absolute legal barrier to relief, it is likely
that Utah’s victory here would bring about the ultimate relief it seeks.
See id., at 803. Thus, Utah has standing. Pp. 459–464.
2. The Bureau’s use of “hot-deck imputation” does not violate 13
U. S. C. § 195, which “authorize[s] the use of the statistical method
known as ‘sampling,’ ” “[e]xcept for the determination of population for
purposes of apportionment of Representatives.” Bureau imputation in

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the year 2000 census differs from sampling in several critical respects:
(1) As to the nature of the enterprise, sampling seeks to extrapolate the
features of a large population from a small one, but the Bureau’s imputa-
tion process sought simply to fill in missing data as part of an effort to
count individuals one by one. (2) As to methodology, sampling seeks to
find a subset that will resemble a whole through the use of artificial,
random selection processes, whereas the Bureau’s methodology was not
that typically used by statisticians, but that used to assure that an indi-
vidual unit (not a “subset”), chosen nonrandomly, will resemble other
individuals (not a “whole”) selected by the fortuitous unavailability of
data. (3) As to the immediate objective, sampling seeks to extrapolate
the sample’s relevant population characteristics to the whole population,
while the Bureau seeks simply to determine the characteristics of miss-
ing individual data. These differences, whether of degree or of kind,
are important enough to place imputation outside the scope of § 195’s
phrase “the statistical method known as ‘sampling.’ ” That phrase—
using the words “known as” and the quotation marks around “sam-
pling”—suggests a term of art with a technical meaning. And the tech-
nical literature, which the Court has examined, see Corning Glass
Works v. Brennan, 417 U. S. 188, 201, contains definitions that focus
upon the sorts of differences discussed above. Also, insofar as the par-
ties rely on statisticians’ expert opinion, that opinion uniformly favors
the Government. Further, § 195’s legislative history suggests that the
“sampling” to which the statute refers is the practice that the Secretary
called “sampling” in 1958 when Congress wrote that law, and that the
statutory word does not apply to imputation, which Congress did not
consider. Finally, Utah provides no satisfactory alternative account of
the meaning of the phrase “the statistical method known as ‘sampling.’ ”
Its several arguments—that “sampling” occurs whenever information
on a portion of the population is used to infer information about the
whole population; that the Court found that two methods, allegedly vir-
tually identical to imputation, constituted “sampling” in Department of
Commerce v. United States House of Representatives, 525 U. S. 316,
324–326; that the Bureau, if authorized to engage in imputation, might
engage in wide-scale substitution of imputation for person-by-person
counting; and that two of the Bureau’s imputation methods are inaccu-
rate—are not convincing. Utah has failed to overcome the fact that
the Bureau has long and consistently interpreted § 195 as permitting
imputation, while Congress, aware of this interpretation, has enacted
related legislation without changing the statute. Pp. 464–473.
3. The Bureau’s use of “hot-deck imputation” does not violate the Cen-
sus Clause, which requires the “actual Enumeration” of each State’s pop-

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ulation “within three Years after the first Meeting of the Congress . . . ,
in such Manner as they shall by Law direct.” Utah argues that the
words “actual Enumeration” require the Census Bureau to seek out each
individual and prohibit it from relying on imputation, but the Constitu-
tion’s text does not make the distinction that Utah seeks to draw.
Rather, it uses a general word, “enumeration,” that refers to a counting
process without describing the count’s methodological details. The tex-
tual word “actual” refers in context to the enumeration that would be
used for apportioning the Third Congress, succinctly clarifying the fact
that the constitutionally described basis for apportionment would not
apply to the First and Second Congresses. The final part of the sen-
tence says that the “actual Enumeration” shall take place “in such Man-
ner as” Congress itself “shall by Law direct,” thereby suggesting the
breadth of congressional methodological authority, rather than its limi-
tation. See, e. g., Wisconsin v. City of New York, 517 U. S. 1, 19. This
understanding of the text is supported by the history of the Constitu-
tional Convention of 1787, which demonstrates that “actual Enumera-
tion” does not limit census methodology as Utah proposes, but was in-
tended to distinguish the census from the apportionment process for the
First Congress, which was based on conjecture rather than a deliber-
ately taken count. Further support is added by contemporaneous gen-
eral usage, as exemplified by late-18th-century dictionaries defining
“enumeration” simply as an act of numbering or counting over, without
reference to counting methodology, and by contemporaneous legal docu-
ments, in which “enumeration” does not require contact between a cen-
sus taker and each enumerated individual, but is used almost inter-
changeably with the phrase “cause the number of the inhabitants . . . to
be taken.” Indeed, the Bureau’s imputation method is similar in princi-
ple to other efforts used since 1800 to determine the number of missing
persons, including asking heads of households, neighbors, landlords,
postal workers, or other proxies about the number of inhabitants in a
particular place. Nor can Utah draw support from the Census Clause’s
basic purposes: to use population rather than wealth to determine repre-
sentation, to tie taxes and representation together, to insist upon peri-
odic recounts of the population, and to take from the States the power
to determine the manner of conducting the census. Those matters of
general principle do not directly help determine the issue of detailed
methodology before the Court. Nonetheless, certain basic constitu-
tional choices may prove relevant. The decisions, for example, to use
population rather than wealth, to tie taxes and representation together,
to insist upon periodic recounts, and to take from the States the power
to determine methodology all suggest a strong constitutional interest in

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accuracy. And an interest in accuracy here favors the Bureau, which
uses imputation as a last resort after other methods have failed. The
Court need not decide here the precise methodological limits foreseen
by the Census Clause. It need say only that in this instance, where all
efforts have been made to reach every household, where the methods
used consist not of statistical sampling but of inference, where that in-
ference 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, those limits
are not exceeded. Pp. 473–479.
182 F. Supp. 2d 1165, affirmed.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Souter, and Ginsburg, JJ., joined, and in which
O’Connor, J., joined as to Parts I and II. O’Connor, J., filed an opinion
concurring in part and dissenting in part, post, p. 479. Thomas, J., filed
an opinion concurring in part and dissenting in part, in which Kennedy,
J., joined, post, p. 488. Scalia, J., filed a dissenting opinion, post, p. 510.
Thomas R. Lee argued the cause for appellants. With
him on the briefs were Carter G. Phillips, Gene C. Schaerr,
Michael S. Lee, Mark L. Shurtleff, Attorney General of
Utah, Raymond A. Hintze, Chief Civil Deputy Attorney
General, and J. Mark Ward, Assistant Attorney General.
Walter Dellinger argued the cause for appellees North
Carolina et al. With him on the brief were Jonathan D.
Hacker, Roy Cooper, Attorney General of North Carolina,
and James Peeler Smith and Tiare B. Smiley, Special Dep-
uty Attorneys General.
Solicitor General Olson argued the cause for the federal
appellees. With him on the brief were Assistant Attorney
General McCallum, Deputy Solicitor General Kneedler,
Malcolm L. Stewart, Mark B. Stern, and Jonathan H. Levy.*
*Valle Simms Dutcher and L. Lynn Hogue filed a brief for the South-
eastern Legal Foundation, Inc., as amicus curiae urging reversal.
Nancy Northup and Deborah Goldberg filed a brief for the Brennan
Center for Justice at NYU School of Law as amicus curiae urging
affirmance.

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Opinion of the Court
Justice Breyer delivered the opinion of the Court.
The question before us is whether the Census Bureau’s use
in the year 2000 census of a methodology called “hot-deck
imputation” either (1) violates a statutory provision forbid-
ding use of “the statistical method known as ‘sampling’ ” or
(2) is inconsistent with the Constitution’s statement that
an “actual Enumeration” be made. 13 U. S. C. § 195; U. S.
Const., Art. I, § 2, cl. 3. We conclude that use of “hot-deck
imputation” violates neither the statute nor the Constitution.
I
A
“Hot-deck imputation” refers to the way in which the Cen-
sus Bureau, when conducting the year 2000 census, filled in
certain gaps in its information and resolved certain conflicts
in the data. The Bureau derives most census information
through reference to what is, in effect, a nationwide list of
addresses. It sends forms by mail to each of those ad-
dresses. If no one writes back or if the information supplied
is confusing, contradictory, or incomplete, it follows up with
several personal visits by Bureau employees (who may also
obtain information on addresses not listed). Occasionally,
despite the visits, the Bureau will find that it still lacks ade-
quate information or that information provided by those in
the field has somehow not been integrated into the master
list. The Bureau may have conflicting indications, for exam-
ple, about whether an address on the list (or a newly gener-
ated address) represents a housing unit, an office building,
or a vacant lot; about whether a residential building is vacant
or occupied; or about the number of persons an occupied unit
contains. These conflicts and uncertainties may arise be-
cause no one wrote back, because agents in the field produced
confused responses, or because those who processed the re-
sponses made mistakes. There may be too little time left
for further personal visits. And the Bureau may then de-

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cide “imputation” represents the most practical way to re-
solve remaining informational uncertainties.
The Bureau refers to different kinds of “imputation” de-
pending upon the nature of the missing or confusing informa-
tion. Where, for example, the missing or confused informa-
tion concerns the existence of a housing unit, the Bureau
speaks of “status imputation.” Where the missing or con-
fused information concerns whether a unit is vacant or occu-
pied, the Bureau speaks of “occupancy imputation.” And
where the missing or confused information concerns the
number of people living in a unit, the Bureau refers to
“household size imputation.” In each case, however, the
Bureau proceeds in a somewhat similar way: It imputes the
relevant information by inferring that the address or unit
about which it is uncertain has the same population charac-
teristics as those of a “nearby sample or ‘donor’ ” address or
unit—e. g., its “geographically closest neighbor of the same
type (i. e., apartment or single-family dwelling) that did not
return a census questionnaire” by mail. Brief for Appel-
lants 7–8, 11. Because the Bureau derives its information
about the known address or unit from the current 2000 cen-
sus rather than from prior censuses, it refers to its imputa-
tion as “hot-deck,” rather than “cold-deck,” imputation.
These three forms of imputation increased the final year
2000 count by about 1.2 million people, representing 0.4% of
the total population. But because this small percentage was
spread unevenly across the country, it makes a difference
in the next apportionment of congressional Representatives.
In particular, imputation increased North Carolina’s popula-
tion by 0.4% while increasing Utah’s population by only 0.2%.
And the parties agree that that difference means that North
Carolina will receive one more Representative, and Utah
will receive one less Representative, than if the Bureau had
not used imputation but instead had simply filled relevant
informational gaps by counting the related number of indi-
viduals as zero.

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B
After analyzing the census figures, Utah brought this law-
suit against the Secretary of Commerce and the Acting Di-
rector of the Census Bureau, the officials to whom the stat-
utes delegate authority to conduct the census. 28 U. S. C.
§ 2284. Utah claimed that the Bureau’s use of “hot-deck im-
putation” violates the statutory prohibition against use of
“the statistical method known as ‘sampling,’ ” 13 U. S. C.
§ 195, and is inconsistent with the Constitution’s statement
that an “actual Enumeration” be made, Art. I, § 2, cl. 3.
Utah sought an injunction compelling the census officials to
change the official census results. North Carolina inter-
vened. The District Court found in the Census Bureau’s
favor. 182 F. Supp. 2d 1165 (Utah 2001). Utah appealed.
28 U. S. C. § 1253. And we postponed consideration of juris-
diction pending hearing the case on the merits. 534 U. S.
1112 (2002).
II
North Carolina argues at the outset that the federal courts
lack the constitutional power to hear this case. Article III,
§ 2, of the Constitution extends the “judicial Power” of the
United States to actual “Cases” and “Controversies.” A
lawsuit does not fall within this grant of judicial authority
unless, among other things, courts have the power to “re-
dress” the “injury” that the defendant allegedly “caused” the
plaintiff. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561
(1992); Allen v. Wright, 468 U. S. 737, 751 (1984). And, in
North Carolina’s view, the courts cannot “redress” the injury
that Utah claims to have suffered here. Hence Utah does
not have the “standing” that the Constitution demands.
In Franklin v. Massachusetts, 505 U. S. 788 (1992), this
Court considered, and rejected, a similar claim. A private
plaintiff had sued the Secretary of Commerce, challenging
the legality of a 1990 census counting method as “arbitrary
and capricious” and contrary to certain specific statutes.

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Id., at 790–791. That plaintiff sought to require the Sec-
retary to recalculate the numbers and recertify the official
results. The plaintiff hoped that would ultimately lead to
a reapportionment that would assign an additional Repre-
sentative to his own State.
Eight Members of the Court found that the plaintiff had
standing. Four Justices considered only whether the law
permitted courts to review Census Bureau decisions under
the Administrative Procedure Act. They concluded that
it did. And they saw no further standing obstacle. Id., at
807 (Stevens, J., concurring in part and concurring in
judgment).
Four other Justices went further. They found that the
controversy between the plaintiff and the Secretary was con-
crete and adversary. They said:
“The Secretary certainly has an interest in defending
her policy determinations concerning the census; even
though she cannot herself change the reapportionment,
she has an interest in litigating its accuracy.” Id., at
803 (opinion of O’Connor, J.).
They also found that, as a practical matter, redress seemed
likely. They said:
“[A]s the Solicitor General has not contended to the con-
trary, we may assume it is substantially likely that the
President and other executive and congressional officials
would abide by an authoritative interpretation of the
census statute and constitutional provision . . . even
though they would not be directly bound by such a
determination.” Ibid.
They saw no further potential obstacle to standing. Ibid.
We can find no significant difference between the plaintiff
in Franklin and the plaintiff (Utah) here. Both brought
their lawsuits after the census was complete. Both claimed
that the Census Bureau followed legally improper counting
methods. Both sought an injunction ordering the Secretary

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of Commerce to recalculate the numbers and recertify the
official result. Both reasonably believed that the Secre-
tary’s recertification, as a practical matter, would likely lead
to a new, more favorable, apportionment of Representatives.
Given these similarities, North Carolina must convince us
that we should reconsider Franklin. It has not done so.
North Carolina does not deny that the courts can order
the Secretary of Commerce to recalculate the numbers and
to recertify the official census result. Rather it points out
that Utah suffers, not simply from the lack of a proper census
“report” (a document), but more importantly from the lack of
the additional congressional Representative to which North
Carolina believes itself entitled as a consequence of the filing
of that document. Whatever we may have said in Franklin,
North Carolina argues, court-ordered relief simply cannot
reach beyond the “report” and, here, a proper “report” can-
not help bring about that ultimate “redress.”
The reason North Carolina believes that court-ordered re-
lief, i. e., the new document, cannot help is that, in its view,
the statutes that set forth the census process make ultimate
redress legally impossible. Those statutes specify that the
Secretary of Commerce must “take a decennial census of
population as of the first day of April” 2000, 13 U. S. C.
§ 141(a); he must report the results to the President by Janu-
ary 1, 2001, § 141(b); the President must transmit to Congress
by January 12, 2001, a statement showing the “whole number
of persons in each State . . . and the number of Representa-
tives to which each State would be entitled,” 2 U. S. C.
§ 2a(a); and, within 15 days of receiving that statement, the
Clerk of the House of Representatives must “send to the
executive of each State a certificate of the number of Repre-
sentatives to which such State is entitled,” § 2a(b). The
statutes also say that, once all that is done, each State “shall
be entitled” to the number of Representatives that the “cer-
tificate” specifies “until the taking effect of a reapportion-
ment under this section or subsequent statute.” Ibid.

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North Carolina points out that all of this was done by Jan-
uary 16, 2001. And North Carolina concludes that it is “enti-
tled” to the number of Representatives that the “certificate”
specifies (i. e., one more than Utah would like)—come what
may.
We disagree with North Carolina because we do not read
these statutes so absolutely—as if they barred a certificate’s
revision in all cases no matter what. The statutes them-
selves do not expressly say what is to occur should the “re-
port” or the “statement” upon which the Clerk’s “certificate”
rests turn out to contain, or to reflect, a serious mistake.
The language is open to a more flexible reading that would
permit correction of a certificate found to rest upon a serious
error—say, a clerical, a mathematical, or a calculation error,
in census data or in its transposition. And if that error is
uncovered before new Representatives are actually selected,
and its correction translates mechanically into a new appor-
tionment of Representatives without further need for exer-
cise of policy judgment, such mechanical revision makes good
sense. In such cases, the “certificate” previously sent would
have turned out not to have been a proper or valid certifi-
cate, it being understood that these statutes do not bar the
substitution of a newer, more accurate version. Guided by
Franklin, which found standing despite the presence of this
statute, we read the statute as permitting “certificate” revi-
sion in such cases of error, and we include among them cases
of court-determined legal error leading to a court-required
revision of the underlying Secretarial “report.” So read,
the statute poses no legal bar to “redress.”
North Carolina adds that another statute, enacted after
Franklin, nonetheless bars our consideration of this case.
That statute authorizes “[a]ny person aggrieved by the use
of any [unlawful] statistical method” to bring “a civil action”
for declaratory or injunctive “relief against the use of such
method.” Pub. L. 105–119, Title II, § 209(b), 111 Stat. 2481.
North Carolina argues that this statute, by directly authoriz-

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ing a lawsuit prior to conclusion of the census, implicitly
forbids a lawsuit after its conclusion. And it supports
this reading by pointing to a legislative finding that it would
“be impracticable” to provide relief “after” that time. Id.,
§ 209(a)(8).
This statute, however, does not say that it bars postcensus
lawsuits. It does not explain why Congress would have
wished to deprive of its day in court a State that did not
learn about a counting method’s representational conse-
quences until after the census is complete—and hence had
little, if any, incentive to bring a precensus action. Nor (as
we have just explained), if a lawsuit is brought soon enough
after completion of the census and heard quickly enough, is
relief necessarily “impracticable.” We read limitations on
our jurisdiction to review narrowly. See Webster v. Doe, 486
U. S. 592, 603 (1988); see also Bowen v. Michigan Academy
of Family Physicians, 476 U. S. 667, 670 (1986). But see
National Railroad Passenger Corporation v. National
Assn. of Railroad Passengers, 414 U. S. 453 (1974) (special
circumstances warrant reading statute as limiting the per-
sons authorized to bring suit). We do not normally read into
a statute an unexpressed congressional intent to bar jurisdic-
tion that we have previously exercised. Franklin; Depart-
ment of Commerce v. Montana, 503 U. S. 442 (1992). And
we shall not do so here.
Neither statute posing an absolute legal barrier to relief,
we believe it likely that Utah’s victory here would bring
about the ultimate relief that Utah seeks. Victory would
mean a declaration leading, or an injunction requiring, the
Secretary to substitute a new “report” for the old one.
Should the new report contain a different conclusion about
the relative populations of North Carolina and Utah, the
relevant calculations and consequent apportionment-related
steps would be purely mechanical; and several months
would remain prior to the first post-2000 census congres-
sional election. Under these circumstances, it would seem,

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as in Franklin, “substantially likely that the President
and other executive and congressional officials would abide
by an authoritative interpretation of the census statute and
constitutional provision . . . .” 505 U. S., at 803 (opinion of
O’Connor, J.).
Moreover, in terms of our “standing” precedent, the courts
would have ordered a change in a legal status (that of
the “report”), and the practical consequence of that change
would amount to a significant increase in the likelihood that
the plaintiff would obtain relief that directly redresses the
injury suffered. We have found standing in similar circum-
stances. See, e. g., Federal Election Comm’n v. Akins, 524
U. S. 11, 25 (1998) (standing to obtain court determination
that the organization was a “political committee” where that
determination would make agency more likely to require
reporting, despite agency’s power not to order reporting
regardless); Bennett v. Spear, 520 U. S. 154, 169–171 (1997)
(similar in respect to determination of the lawfulness of an
agency’s biological report); Metropolitan Washington Air-
ports Authority v. Citizens for Abatement of Aircraft Noise,
Inc., 501 U. S. 252, 264–265 (1991) (similar in respect to de-
termination that transfer of airport control to local agency
is unlawful). And related cases in which we have denied
standing involved a significantly more speculative likelihood
of obtaining ultimate relief. See Lujan, 504 U. S., at 564–
565, n. 2 (obtaining ultimate relief “speculative”); Simon v.
Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 42
(1976) (same). We consequently conclude that Utah has
standing here, and we have jurisdiction.
III
Utah rests its statutory claim on a federal sampling stat-
ute which reads as follows:
“Except for the determination of population for pur-
poses of apportionment of Representatives in Congress
among the several States, the Secretary shall, if he con-

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Opinion of the Court
siders it feasible, authorize the use of the statistical
method known as ‘sampling’ . . . .” 13 U. S. C. § 195.
We have previously read this language as forbidding
apportionment-related use of “the statistical method known
as ‘sampling.’ ” Department of Commerce v. United States
House of Representatives, 525 U. S. 316, 343 (1999). Utah
claims that imputation, as practiced by the Census Bureau,
is a form of that forbidden “sampling” method.
The Government argues that imputation is not “sampling.”
And it has used a simplified example to help explain why this
is so. Imagine a librarian who wishes to determine the total
number of books in a library. If the librarian finds a statisti-
cally sound way to select a sample (e. g., the books contained
on every 10th shelf) and if the librarian then uses a statisti-
cally sound method of extrapolating from the part to the
whole (e. g., multiplying by 10), then the librarian has deter-
mined the total number of books by using the statistical
method known as “sampling.” If, however, the librarian
simply tries to count every book one by one, the librarian
has not used sampling. Nor does the latter process sud-
denly become “sampling” simply because the librarian, find-
ing empty shelf spaces, “imputes” to that empty shelf space
the number of books (currently in use) that likely filled
them—not even if the librarian goes about the imputation
process in a rather technical way, say, by measuring the size
of nearby books and dividing the length of each empty shelf
space by a number representing the average size of nearby
books on the same shelf.
This example is relevant here both in the similarities and
in the differences that it suggests between sampling and im-
putation. In both, “ ‘information on a portion of a popula-
tion is used to infer information on the population as a
whole.’ ” Brief for Appellants 18. And in Utah’s view, and
that of Justice O’Connor, see post, at 482–483 (opinion con-
curring in part and dissenting in part), that similarity brings

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the Census Bureau imputation process within the relevant
statutory phrase.
On the other hand, the two processes differ in several criti-
cal respects: (1) In respect to the nature of the enterprise,
the librarian’s sampling represents an overall approach to
the counting problem that from the beginning relies on data
that will be collected from only a part of the total population,
Declaration of Howard Hogan ¶¶ 19–23, App. 257–259 (here-
inafter Hogan); (2) in respect to methodology, the librarian’s
sampling focuses on using statistically valid sample-selection
techniques to determine what data to collect, ¶¶ 29–30, id.,
at 261–262; Declaration of Joseph Waksberg ¶¶ 6, 10, id., at
290–294 (hereinafter Waksberg); and (3) in respect to the im-
mediate objective, the librarian’s sampling seeks immedi-
ately to extrapolate the sample’s relevant population charac-
teristics to the whole population, Hogan ¶ 30, id., at 262;
Declaration of David W. Peterson ¶ 8, id., at 352 (herein-
after Peterson).
By way of contrast, the librarian’s imputation (1) does not
represent an overall approach to the counting problem that
will rely on data collected from only a subset of the total
population, since it is a method of processing data (giving a
value to missing data), not its collection, ¶¶ 21, 29, id., at
257–258, 261–262; it (2) does not rely upon the same statisti-
cal methodology generally used for sample selection, U. S.
Dept. of Commerce, Decennial Statistical Studies Division,
Census 2000 Procedures and Operations, Memorandum Se-
ries B–17, Feb. 28, 2001, id., at 194–196; Waksberg ¶¶ 6, 10,
id., at 290, 293–294; and it (3) has as its immediate objective
determining the characteristics of missing individual books,
not extrapolating characteristics from the sample to the en-
tire book population, Hogan ¶ 17, id., at 256–257; Peterson
¶ 9, id., at 352.
These same differences distinguish Bureau imputation in
the year 2000 census from “the statistical method known as
‘sampling.’ ” 13 U. S. C. § 195. The nature of the Bureau’s

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enterprise was not the extrapolation of the features of a
large population from a small one, but the filling in of missing
data as part of an effort to count individuals one by one.
But cf. post, at 482–483 (O’Connor, J., concurring in part and
dissenting in part) (suggesting the contrary). The Bureau’s
methodology was not that typically used by statisticians
seeking to find a subset that will resemble a whole through
the use of artificial, random selection processes; but that
used to assure that an individual unit (not a “subset”), chosen
nonrandomly, will resemble other individuals (not a “whole”)
selected by the fortuitous unavailability of data. L. Kish,
Survey Sampling 26 (1965) (“In statistical literature [sam-
pling] is generally synonymous with random sampling”).
And the Bureau’s immediate objective was the filling in of
missing data; not extrapolating the characteristics of the
“donor” units to an entire population.
These differences, whether of degree or of kind, are impor-
tant enough to place imputation outside the scope of the stat-
ute’s phrase “the statistical method known as ‘sampling.’ ”
For one thing, that statutory phrase—using the words
“known as” and the quotation marks that surround “sam-
pling”—suggests a term of art with a technical meaning.
And the technical literature, which we have consequently ex-
amined, see Corning Glass Works v. Brennan, 417 U. S. 188,
201 (1974), contains definitions that focus upon differences of
the sort discussed above. One text, for example, says that
“[s]urvey sampling, or population sampling, deals with
methods for selecting and observing a part (sample) of the
population in order to make inferences about the whole popu-
lation.” Kish, supra, at 18. Another says that “sample, as
it is used in the [statistics] literature . . . means a subset of
the population that is used to gain information about the en-
tire population,” G. Henry, Practical Sampling 11 (1990), or,
in other words, “a model of the population,” ibid. Yet an-
other says that a “sampling method is a method of selecting
a fraction of the population in a way that the selected sample

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represents the population.” P. Sukhatme, Sampling Theory
of Surveys with Applications 1 (1954). A 1953 treatise, to
which Utah refers, says that a broader definition of “sample”
is imprecise, adding that the term “should be reserved for a
set of units . . . which has been selected in the belief that it
will be representative of the whole aggregate.” F. Yates,
Sampling Methods for Censuses and Surveys § 1.1, p. 2 (2d
rev. ed. 1953) (hereinafter Yates). And Census Bureau doc-
uments state that “professional statisticians” reserve the
term “ ‘sample’ . . . for instances when the selection of the
smaller population is based on the methodology of their
science.” Report to Congress—The Plan for Census 2000,
p. 23 (revised and reissued Aug. 1997) (hereinafter Report
to Congress).
These definitions apply easily and naturally to what we
called “sampling” in the librarian example, given its na-
ture, methods, and immediate objectives. These definitions
do not apply to the librarian’s or to the Bureau’s imputa-
tion process—at least not without considerable linguistic
squeezing.
For another thing, Bureau statisticians testified in the Dis-
trict Court that, in their expert opinion, Bureau imputation
was not “sampling” as that term is used in the field of statis-
tics. Hogan ¶¶ 18–30, App. 257–262; Waksberg ¶¶ 6–10, id.,
at 290–294 (former Bureau statistician). Their reasons par-
allel those to which we have referred. Ibid. Although
Utah presented other experts who testified to the contrary,
Utah has not relied upon their testimony or expert knowl-
edge here. Insofar as the parties now rely on expert opin-
ion, that opinion uniformly favors the Government.
Further, the history of the sampling statute suggests that
Congress did not have imputation in mind in 1958 when it
wrote that law. At that time, the Bureau already was en-
gaged in what it called “sampling,” a practice that then in-
volved asking a small subset of the population subsidiary
census questions about, say, automobiles, telephones, or dish-

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washers, and extrapolating the responses to produce national
figures about, say, automobile ownership. See M. Anderson,
The American Census: A Social History 199 (1988) (discuss-
ing “long form” survey, sent in 1950 to about 20% of popula-
tion). The Secretary of Commerce asked Congress to enact
a law that would make clear the Bureau had legal authority
to engage in this “practice.” Amendment of Title 13, United
States Code, Relating to Census: Hearing on H. R. 7911 be-
fore the House Committee on the Post Office and Civil Serv-
ice, 85th Cong., 1st Sess., 7 (1957) (Statement of Purpose and
Need) (Secretary of Commerce, describing Bureau’s ability
to obtain “some . . . information . . . efficiently through a
sample survey . . . rather than a complete enumeration
basis”). The Secretary did not object to a legislative re-
striction that would, in effect, deny the Bureau sampling au-
thority in the area of apportionment. And Congress, in part
to help achieve cost savings, responded with the present
statute which provides that limited authority. See S. Rep.
No. 698, 85th Cong., 1st Sess., 3 (1957) (“[P]roper use of sam-
pling methods can result in substantial economies in census
taking”); S. Rep. No. 94–1256, p. 5 (1976) (“use of sampling
procedures and surveys . . . urged for the sake of economy
and reducing respondent burden”).
This background suggests that the “sampling” to which
the statute refers is the practice that the Secretary called
“sampling” at the time—for that is what Congress consid-
ered. And it suggests that the statutory word does not
apply to imputation—for that is a matter that Congress did
not consider. Indeed, had the Secretary believed that Con-
gress intended to restrict the Bureau’s authority to engage
in apportionment-related imputation, he would likely have
expressed an objection, for the Bureau had used such impu-
tation in the past and intended to use it in the future.
Hogan ¶ 39, App. 266–267. Moreover, the Bureau’s rationale
for using sampling was quite different from its rationale for
using imputation. An advance plan to sample a subset saves

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money, for it restricts a survey’s potential scope. Bureau
imputation does not save money, for the Bureau turns to im-
putation only after ordinary questionnaires and interviews
have failed. Rather, imputation reflects a Bureau decision
to spend at least a small amount of additional money in order
to avoid placing the figure “zero” next to a listed address
when it is possible to do better. See ¶ 34, id., at 264 (“The
goal in Census 2000 was to conduct a census that was both
numerically and distributively accurate”).
Finally, Utah provides no satisfactory alternative account
of the meaning of the phrase “the statistical method known
as ‘sampling.’ ” Its arguments suggest that the phrase
should apply to any use of statistics that would help the Bu-
reau extrapolate from items about which the Bureau knows
to other items, the characteristics of which it does not know.
Brief for Appellants 9. But that definitional view would
include within the statutory phrase matters that could not
possibly belong there—for example, the use of statistics to
determine whether it is better to ask a postal worker or a
neighbor about whether an apparently empty house is occu-
pied. And it would come close to forbidding the use of all
statistics, not simply one statistical method (“sampling”).
Utah’s express definitional statement—that “sampling” oc-
curs whenever “information on a portion of a population is
used to infer information on the population as a whole”—
suffers from a similar defect. Indeed, it is even broader,
coming close to a description of the mental process of infer-
ence itself. While the Census Bureau and at least one trea-
tise have used somewhat similar language to define “sam-
pling,” they have immediately added the qualification that
such is the “layman’s” view, while professional statisticians,
when speaking technically, speak more narrowly and more
precisely. Report to Congress 23; Yates 1–2.
Utah makes several additional arguments. It says that in
House of Representatives, the Court found that two meth-
ods, virtually identical to imputation, constituted “sampling.”

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It says that the Bureau, if authorized to engage in imputa-
tion, might engage in wide-scale substitution of imputation
for person-by-person counting. And it says that, in any
event, the Bureau’s methods for imputing status and occu-
pancy, see supra, at 458, are inaccurate.
In our view, however, House of Representatives is distin-
guishable. The two instances of Bureau methodology at
issue there satisfied the technical criteria for “sampling” in
ways that the imputation here at issue does not. In both
instances, the Bureau planned at the outset to produce a sta-
tistically sound sample from which it extrapolated character-
istics of an entire population. In the first instance it did so
by selecting census blocks randomly from which to extrapo-
late global census figures in order to compare (and adjust)
the accuracy of figures obtained in traditional ways with
figures obtained through statistical sampling. 525 U. S., at
325–326. In the second instance it used a sample drawn
from questionnaire nonrespondents in particular census
tracts in order to obtain the population figure for the entire
tract. The “sampling” in the second instance more closely
resembles the present effort to fill in missing data, for the
“sample” of nonrespondents was large (about 20% of the
tract) compared to the total nonresponding population (about
30% of the entire tract). Id., at 324–325. Nonetheless, we
believe that the Bureau’s view of the enterprise as sampling,
the deliberate decision taken in advance to find an appro-
priate sample, the sampling methods used to do so, the imme-
diate objective of determining through extrapolation the size
of the entire nonresponding population, and the quantitative
figures at issue (10% of the tract there; 0.4% here), all taken
together, distinguish it—in degree if not in kind—from the
imputation here at issue.
Nor are Utah’s other two arguments convincing. As to
the first, Utah has not claimed that the Bureau has used
imputation to manipulate results. It has not explained how
census-taking that fills in ultimate blanks through imputa-

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tion is more susceptible to manipulation than census-taking
that fills in ultimate blanks with a zero. And given the ad-
vance uncertainties as to which States imputation might
favor, manipulation would seem difficult to arrange. If Jus-
tice O’Connor’s speculation comes to pass—that the Bu-
reau would decide, having litigated this case and utilized im-
putation in a subsequent census, to forgo the benefits of that
process because of its results—the Court can address the
problem at that time. As to the second, Utah’s claim con-
cerns the nature of the imputation method, not its accuracy
as applied—though we add that neither the record, see infra,
at 477, nor Justice O’Connor’s opinion, see post, at 487–488,
gives us any reason to doubt that accuracy here.
We note one further legal hurdle that Utah has failed to
overcome—the Bureau’s own interpretation of the statute.
The Bureau, which recommended this statute to Congress,
has consistently, and for many years, interpreted the statute
as permitting imputation. Hogan ¶¶ 39, 41, 43, 46, 47, 52,
App. 266–273. Congress, aware of this interpretation, has
enacted related legislation without changing the statute.
See, e. g., Census Address List Improvement Act of 1994,
Pub. L. 103–430, 108 Stat. 4393; Foreign Direct Investment
and International Financial Data Improvements Act of 1990,
Pub. L. 101–533, 104 Stat. 2344; Act of Oct. 14, 1986, Pub. L.
99–467, 100 Stat. 1192. (Indeed, the Bureau told Congress
of its planned use of imputation in the year 2000 census with-
out meeting objection.) And the statute itself delegates to
the Secretary the authority to conduct the decennial census
“in such form and content as he may determine.” 13 U. S. C.
§ 141(a). Although we do not rely on it here, under these
circumstances we would grant legal deference to the Bu-
reau’s own legal conclusion were that deference to make the
difference. Chevron U. S. A. Inc. v. Natural Resources De-
fense Council, Inc., 467 U. S. 837, 842–845 (1984).
In sum, imputation differs from sampling in respect to the
nature of the enterprise, the methodology used, and the im-

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mediate objective sought. And as we have explained, these
differences are of both kind and degree. That the differ-
ences may be of degree does not lessen their significance
where we are charged with interpreting statutory language
and we are faced with arguments that suggest that it covers
even the most ordinary of inferences. Since that cannot be
so, we have found the keys to understanding the operative
phrase in its history: the fact that the Bureau itself believed
imputation to stand outside the prohibition it requested Con-
gress pass, the fact that the Bureau has consistently used
imputation, and the fact that Congress, on notice of that use,
has not suggested otherwise. For these reasons, we con-
clude that the statutory phrase “the statistical method
known as ‘sampling’ ” does not cover the Bureau’s use of
imputation.
IV
Utah’s constitutional claim rests upon the words “actual
Enumeration” as those words appear in the Constitution’s
Census Clause. That Clause, as changed after the Civil War
(in ways that do not matter here), reads as follows:
“Representatives and direct Taxes shall be apportioned
among the several States . . . according to their respec-
tive Numbers . . . counting the whole number of persons
in each State. . . . The actual Enumeration shall be
made within three Years after the first Meeting of the
Congress of the United States, . . . in such Manner as
they shall by Law direct.” Art. I, § 2, cl. 3 (emphasis
added); see also Amdt. 14, § 2.
Utah argues that the words “actual Enumeration” require
the Census Bureau to seek out each individual. In doing
so, the Bureau may rely upon documentary evidence that an
individual exists, say, a postal return, or upon eyewitness
evidence, say, by a census taker. It can fill in missing data
through the use of testimonial reports, including secondhand
or thirdhand reports, made by a family member, neighbor,

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or friend. But it may not rely upon imputation, which fills
in data by assuming, for example, that an unknown house
has the same population characteristics as those of the clos-
est similar house nearby.
We do not believe the Constitution makes the distinction
that Utah seeks to draw. The Constitution’s text does not
specify any such limitation. Rather, the text uses a general
word, “enumeration,” that refers to a counting process with-
out describing the count’s methodological details. The tex-
tual word “actual” refers in context to the enumeration that
will be used for apportioning the Third Congress, succinctly
clarifying the fact that the constitutionally described basis
for apportionment will not apply to the First and Second
Congresses. 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. See, e. g., Wisconsin v. City of New
York, 517 U. S. 1, 19 (1996).
The history of the constitutional phrase supports our
understanding of the text. The Convention sent to its
Committee of Detail a draft stating that Congress was to
“regulate the number of representatives by the number of
inhabitants, . . . which number shall . . . be taken in such
manner as . . . [Congress] shall direct.” 2 M. Farrand, Rec-
ords of the Federal Convention of 1787, pp. 178, 182–183 (rev.
ed. 1966) (hereinafter Farrand). After making minor, here
irrelevant, changes, the Committee of Detail sent the draft
to the Committee of Style, which, in revising the language,
added the words “actual Enumeration.” Id., at 590, 591.
Although not dispositive, this strongly suggests a similar
meaning, for the Committee of Style “had no authority from
the Convention to alter the meaning” of the draft Constitu-
tion submitted for its review and revision. Powell v. Mc-
Cormack, 395 U. S. 486, 538–539 (1969); see 2 Farrand 553;
see also Nixon v. United States, 506 U. S. 224, 231 (1993).

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Hence, the Framers would have intended the current phrase,
“the actual Enumeration shall be made . . . in such Manner
as [Congress] . . . shall by Law direct,” as the substantive
equivalent of the draft phrase, “which number [of inhabit-
ants] shall . . . be taken in such manner as [Congress] shall
direct.” 2 Farrand 183. And the Committee of Style’s
phrase offers no linguistic temptation to limit census meth-
odology in the manner that Utah proposes.
Moreover, both phrases served to distinguish the census
from the process of apportionment for the first Congress.
Read in conjunction with the proceedings of the Constitu-
tional Convention, the text of Article I makes clear that the
original allocation of seats in the House was based on a kind
of “conjectur[e],” 1 id., at 578–579, in contrast to the deliber-
ately taken count that was ordered for the future. U. S.
Const., Art. I, § 2, cl. 3; 1 Farrand 602; 2 id., at 106; 2 The
Founders’ Constitution 135–136, 139 (P. Kurland & R. Lerner
eds. 1987) (hereinafter Kurland & Lerner); see also Depart-
ment of Commerce, 503 U. S., at 448, and n. 15; post, at 498–
500 (Thomas, J., concurring in part and dissenting in part)
(describing colonial estimates). What was important was
that contrast—rather than the particular phrase used to de-
scribe the new process.
Contemporaneous general usage of the word “enumera-
tion” adds further support. Late-18th-century dictionaries
define the word simply as an “act of numbering or counting
over,” without reference to counting methodology. 1 S.
Johnson, A Dictionary of the English Language 658 (4th rev.
ed. 1773); N. Bailey, An Etymological English Dictionary
(26th ed. 1789) (“numbering or summing up”); see also Web-
ster’s Third New International Dictionary 759 (1961 ed.)
(“the act of counting,” “a count of something (as a popula-
tion)”). Utah’s strongest evidence, a letter from George
Washington contrasting a population “estimate” with a “cen-
sus” or “enumeration,” does not demonstrate the contrary,
for one can indeed contrast, say, a rough estimate with an

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enumeration, without intending to encompass in the former
anything like the Bureau’s use of imputation to fill gaps or
clarify confused information about individuals. 31 Writings
of George Washington 329 (J. Fitzpatrick ed. 1931); see 8
Writings of Thomas Jefferson 236 (A. Lipscomb ed. 1903)
(comparing the “actual returns” with “conjectures”); 1 Far-
rand 602; 2 id., at 106; Kurland & Lerner 135–136. And the
evidence Justice Thomas sets forth, post, at 498–500 (opin-
ion concurring in part and dissenting in part), demonstrates
the same. The kinds of estimates to which his sources refer
are those based on “the number of taxable polls, or the num-
ber of the militia.” Post, at 494 (internal quotation marks
omitted). Such sources show nothing other than that “enu-
meration” may be “incompatible (or at least arguably incom-
patible . . .) with gross statistical estimates,” House of Rep-
resentatives, 525 U. S., at 347 (Scalia, J., concurring in part),
but such “gross statistical estimates” are not at stake here.
Contemporaneous legal documents do not use the term
“enumeration” in any specialized way. The Constitution it-
self, in a later article, refers to the words “actual Enumera-
tion” as meaning “Census or Enumeration,” Art. I, § 9, cl. 4,
thereby indicating that it did not intend the term “actual
Enumeration” as a term of art requiring, say, contact (di-
rectly or through third parties) between a census taker and
each enumerated individual. The First Census Act uses the
term “enumeration” almost interchangeably with the phrase
“cause the number of the inhabitants . . . to be taken.” And
the marshals who implemented that Act did not try to con-
tact each individual personally, as they were required only
to report the names of all heads of households. Act of Mar.
1, 1790, ch. 2, § 1, 1 Stat. 102. Cf. House of Representatives,
supra, at 347 (Scalia, J., concurring in part) (noting that the
Census Acts of 1810 through 1950 required census workers
to “visit each home in person”); see also post, at 504
(Thomas, J., concurring in part and dissenting in part).

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Of course, this last limitation suggests that the Framers
expected census enumerators to seek to reach each individ-
ual household. And insofar as statistical methods substitute
for any such effort, it may be argued that the Framers did
not believe that the Constitution authorized their use. See
House of Representatives, supra, at 346–349 (Scalia, J., con-
curring in part). But we need not decide this matter here,
for we do not deal with the substitution of statistical meth-
ods for efforts to reach households and enumerate each indi-
vidual. Here the Census Bureau’s method is used sparingly
only after it has exhausted its efforts to reach each individ-
ual, and it does not differ in principle from other efforts used
since 1800 to determine the number of missing persons.
Census takers have long asked heads of households, “neigh-
bors, landlords, postal workers, or other proxies” about the
number of inhabitants in a particular place, Hogan ¶ 11, App.
253. Such reliance on hearsay need be no more accurate,
is no less inferential, and rests upon no more of an individu-
alized effort for its inferences than the Bureau’s method of
imputation.
Nor can Utah draw support from a consideration of the
basic purposes of the Census Clause. That Clause reflects
several important constitutional determinations: that com-
parative state political power in the House would reflect
comparative population, not comparative wealth; that com-
parative power would shift every 10 years to reflect popula-
tion changes; that federal tax authority would rest upon the
same base; and that Congress, not the States, would deter-
mine the manner of conducting the census. See Wesberry
v. Sanders, 376 U. S. 1, 9–14, and n. 34 (1964); 1 Farrand
35–36, 196–201, 540–542, 559–560, 571, 578–588, 591–597, 603;
2 id., at 2–3, 106; Kurland & Lerner 86–144; see The Fed-
eralist No. 54, pp. 336–341 (C. Rossiter ed. 1961) (J. Madison);
id., No. 55, at 341–350 (J. Madison); id., No. 58, at 356–361
(J. Madison); 31 Writings of George Washington, supra, at
329. These basic determinations reflect the fundamental na-

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ture of the Framers’ concerns. Insofar as Justice Thomas
proves that the Framers chose to use population, rather than
wealth or a combination of the two, as the basis for represen-
tation, post, at 500–503, we agree with him. What he does
not show, however, is that, in order to avoid bias or for other
reasons, they prescribed, or meant to prescribe, the precise
method by which Congress was to determine the population.
And he cannot show the latter because, for the most part, the
choice to base representation on population, like the other
fundamental choices the Framers made, are matters of gen-
eral principle that do not directly help determine the issue
of detailed methodology before us. Declaration of Jack N.
Rakove in Department of Commerce v. United States House
of Representatives, O. T. 1998, No. 98–404, p. 387 (“What was
at issue . . . were fundamental principles of representation
itself . . . not the secondary matter of exactly how census
data was [sic] to be compiled”).
Nonetheless, certain basic constitutional choices may
prove relevant. The decisions, for example, to use popula-
tion rather than wealth, to tie taxes and representation to-
gether, to insist upon periodic recounts, and to take from the
States the power to determine methodology all suggest a
strong constitutional interest in accuracy. And an interest
in accuracy here favors the Bureau. That is because, as we
have said, the Bureau uses imputation only as a last resort—
after other methods have failed. In such instances, the Bu-
reau’s only choice is to disregard the information it has, using
a figure of zero, or to use imputation in an effort to achieve
greater accuracy. And Bureau information provided in the
District Court suggests that those efforts have succeeded.
U. S. Dept. of Commerce, Economics and Statistics Admin.,
Census 2000 Informational Memorandum No. 110, App. 445–
448 (concluding that postcensus research confirms that impu-
tation appropriately included individuals in the census who
would otherwise have been excluded).

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Of course, the Framers did not consider the imputation
process. At the time they wrote the Constitution “statis-
ticks” referred to “ ‘a statement or view of the civil condition
of a people,’ ” not the complex mathematical discipline it has
become. P. Cohen, A Calculating People 150–151 (1982).
Yet, however unaware the Framers might have been of spe-
cific future census needs, say, of automobiles for transport or
of computers for calculation, they fully understood that those
future needs might differ dramatically from those of their
own times. And they were optimists who might not have
been surprised to learn that a year 2000 census of the Nation
that they founded required “processed data for over 120 mil-
lion households, including over 147 million paper question-
naires and 1.5 billion pages of printed material.” Hogan ¶ 8,
App. 251. Consequently, they did not write detailed census
methodology into the Constitution. As we have said, we
need not decide here the precise methodological limits fore-
seen by the Census Clause. We need say only that in this
instance, 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 un-
likely, those limits are not exceeded.
For these reasons the judgment of the District Court is
Affirmed.
Justice O’Connor, concurring in part and dissenting in
part.
In the year 2000 census, the Census Bureau used the sta-
tistical technique known as “hot-deck imputation” to cal-
culate the state population totals that were used to appor-
tion congressional Representatives. While I agree with the
Court’s general description of the imputation process, its
conclusion that the appellants have standing to challenge

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its use, and its conclusion that we otherwise have jurisdiction
to consider that challenge, I would find that the Bureau’s use
of imputation constituted a form of sampling and thus was
prohibited by § 195 of the Census Act, 13 U. S. C. § 1 et seq.
Therefore, while I concur in Parts I and II of the majority’s
opinion, I respectfully dissent from Part III and have no
occasion to decide whether the Constitution prohibits im-
putation, which the majority addresses in Part IV.
I
To conduct the year 2000 census, the Census Bureau (Bu-
reau) first created a master address file that attempted to
list every residential housing unit in the United States. See
U. S. Dept. of Commerce, Economics and Statistics Admin.,
Census 2000 Operational Plan VI (Dec. 2000) (hereinafter
Census 2000 Operational Plan). The Bureau then conducted
a survey of every address on that list, primarily through the
use of mail-back questionnaires. See id., at IX.A to IX.E;
ante, at 457. As relevant here, these questionnaires re-
quested the name of each person living at a given address.
See Census 2000 Operational Plan V.B.
Because not every address returned a questionnaire, the
Bureau had its enumerators attempt to contact nonre-
sponding addresses up to six times by phone or in person in
an effort to obtain population information for each address.
See Declaration of Howard Hogan ¶ 73, App. 285 (hereinafter
Hogan); Census 2000 Operational Plan IX.G. This was
known as “nonresponse followup.” Ibid. Also during this
followup procedure, addresses that appeared vacant were
marked as such while addresses determined to be nonexist-
ent were noted for later deletion. See Hogan ¶¶ 69, 73, App.
283, 285. When all followup procedures were completed, the
Bureau still lacked population information for approximately
0.4% of the addresses on the master address list because the
Bureau had been unable to classify them as either “occupied,
vacant, or nonexistent.” Id., at 188. Additionally, the

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Bureau lacked household size information for approximately
0.2% of addresses that were classified as occupied. See id.,
at 191.
At this point, the Bureau employed the statistical tech-
nique known as “hot-deck imputation.” For each unsuccess-
fully enumerated address, the Bureau imputed population
data by copying corresponding data from a “ ‘donor’ ” ad-
dress. Ante, at 458. The donor address was the “ ‘geo-
graphically closest neighbor of the same type (i. e., apart-
ment or single-family dwelling) that did not return a census
questionnaire’ by mail.” Ibid. (quoting Brief for Appellants
7–8, 11). What this means is that donor addresses were se-
lected only from addresses that had been personally sur-
veyed by the Bureau’s enumerators, primarily through the
nonresponse followup procedure described above. See App.
156. After imputation was completed, every address on the
master address list was associated with a household size
number that had been determined either by imputation or by
enumeration (although that number was zero for addresses
ultimately classified as vacant or nonexistent).
The Bureau used the imputation-adjusted data to calculate
state population totals. Ante, at 458. Because these totals
were used to determine the apportionment of congressional
Representatives, ibid., we must determine whether the Bu-
reau’s use of imputation constituted a form of sampling. If
it did, it was prohibited by § 195 of the Census Act, 13 U. S. C.
§ 1 et seq. See Department of Commerce v. United States
House of Representatives, 525 U. S. 316, 338 (1999).
II
As initially enacted, § 195 provided that “[e]xcept for the
determination of population for apportionment purposes, the
Secretary [of Commerce] may, where he deems it appro-
priate, authorize the use of the statistical method known as
‘sampling’ in carrying out the provisions of this title.” 13
U. S. C. § 195 (1970 ed.). As relevant here, Congress re-

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placed “may, where he deems it appropriate” with “shall, if
he considers it feasible” when it amended § 195 in 1976.
Pub. L. 94–521, 90 Stat. 2464. In House of Representatives,
we found that this amended language “might reasonably be
read as either permissive or prohibitive with regard to the
use of sampling for apportionment purposes.” 525 U. S., at
339. Even so, we held that § 195 maintained the prohibition
on sampling with respect to apportionment given the
“broader context” of “over 200 years during which federal
statutes [had] prohibited the use of statistical sampling
where apportionment [was] concerned.” Id., at 339–341.
With respect to § 195, then, the only question is whether
“hot-deck imputation” is a form of sampling.
To answer this question, I begin with the definition of
sampling the Bureau provided to Congress in connection
with the year 2000 census:
“In our common experience, ‘sampling’ occurs whenever
the information on a portion of a population is used to
infer information on the population as a whole[,] . . .
[although] [a]mong professional statisticians, the term
‘sample’ is reserved for instances when the selection of
the smaller population is based on the methodology of
their science.” Report to Congress—The Plan for Cen-
sus 2000, p. 23 (revised and reissued Aug. 1997).
Under this definition, the Bureau’s use of imputation was a
form of sampling. The Bureau used a predefined, determin-
istic method to select a portion of the population and then
used that portion of the population to estimate unknown in-
formation about the overall population. The Bureau’s impu-
tation process first selected a group of “donor” addresses,
one for each address that had not been successfully enumer-
ated. This donor group was a subset of the overall popula-
tion. Indeed, the donor group was actually a subset of a
subset of the population because it was selected from only
those addresses that had not returned an initial question-

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naire but were successfully enumerated through other
means. This highlights the Bureau’s reliance on a selected
portion of collected data.
Next, the Bureau used the population of the donor group
as a direct estimate of the number of people who had not
been successfully enumerated. This estimate related to the
“population as a whole” because it was an estimate of the
overall number of people in the population who had not re-
sponded (or had not provided a consistent response, see ante,
at 457) to the Bureau’s survey efforts. See, e. g., F. Yates,
Sampling Methods for Censuses and Surveys 64, 130 (2d rev.
ed. 1953) (describing the use of sampling to estimate survey
nonresponse); ante, at 471 (describing the sampling at issue
in House of Representatives as one for estimating nonre-
sponse). Because the imputation process selected a portion
of the population to estimate the number of people who had
not been successfully enumerated, the process constituted a
form of sampling.
To counter this conclusion, the majority contends that the
Bureau’s use of imputation differs from sampling in several
different ways. First, the majority argues that the Bureau’s
use of imputation differs quantitatively from other forms of
sampling, suggesting that estimating nonresponse is not
sampling when the amount of nonresponse is very small.
See ante, at 471 (contrasting the use of sampling to estimate
a 10% level of nonresponse with the use of imputation to
estimate a 0.4% level of nonresponse). But the majority
provides no statistical basis to suggest that sampling is con-
fined to “large” estimates. Moreover, we have already de-
cided that the extent of the Bureau’s reliance on sampling is
irrelevant when we held that § 195 prohibits sampling for
apportionment purposes regardless of whether it is used as
a “ ‘substitute’ ” for or “ ‘supplement’ ” to a traditional enu-
meration. House of Representatives, supra, at 342.
Indeed, the majority more generally acknowledges that
the Bureau’s reliance on imputation may be distinguishable

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only in degree from other forms of sampling. See ante, at
471 (stating that the sampling at issue in House of Repre-
sentatives differs “in degree if not in kind” from the imputa-
tion at issue here). But the majority provides no statistical
basis for claiming a difference of degree matters to the ques-
tion of what constitutes sampling, nor does it explain how a
meaningful line between sampling and nonsampling could be
drawn on such a basis.
Second, the majority contends that imputation is not sam-
pling because the sample selection method used by the Bu-
reau does not look like “typica[l],” ante, at 467, selection
methods in terms of when or how the relevant sample is se-
lected. With respect to when a sample is selected, the ma-
jority contends that imputation is not sampling because it
occurs after all data have been collected. See ante, at 466.
This presumes that one cannot sample from already-collected
data. But sampling from collected data is a recognized form
of sampling, even when the collected data result from an at-
tempt to survey the entire population. See Yates, supra,
at 128.
With respect to how a sample is selected, the majority ar-
gues that imputation does not look like methods employed
“to find a subset that will resemble a whole through the
use of artificial, random selection processes.” Ante, at 467.
But the Bureau’s “nearest neighbor” imputation process is
just as artificial as any other form of nonrandom selection,
and it is beyond dispute that nonrandom selection methods—
including those that produce nonrepresentative samples—
may be used for sampling. See, e. g., W. Hendricks, Mathe-
matical Theory of Sampling 239–241 (1956); P. Sukhatme,
Sampling Theory of Surveys with Applications 10 (1954);
F. Stephan, History of the Uses of Modern Sampling Proce-
dures, 43 J. Am. Statistical Assn. 12, 21 (1948) (all indicat-
ing that nonrandom selection methods may be used for
sampling); see also Yates, supra, at 17; R. Jessen, Statistical
Survey Techniques 16 (1978); W. Deming, Sample Design in

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Business Research 32 (1960) (together indicating that the
selection of nonrepresentative or “biased” samples may be
permissible, preferred, or even deliberate). Finally, even if
random and unbiased selection methods were assumed to
be more accurate than other methods of sampling, it would
make little sense to construe § 195 as prohibiting only the
most accurate forms of sampling.
Third, the majority contends that imputation is not sam-
pling because the Bureau never meant to engage in sampling.
Along these lines, the majority stresses that the Bureau’s
“overall approach to the counting problem,” ante, at 466, did
not reflect a “deliberate decision,” ante, at 471, to engage in
sampling. Instead, according to the majority, the Bureau’s
“immediate objective was the filling in of missing data,” in
an effort to ascertain population information on “individual”
units, not “extrapolating the characteristics of the ‘donor’
units to an entire population.” Ante, at 467.
The majority provides no statistical basis for defining sam-
pling in terms of intent or immediate objectives, however,
and to do so would allow the Bureau to engage in any form
of sampling so long as it was characterized as something else
or appeared to serve some nonsampling objective. But that
would render hollow the statutory prohibition on sampling
for apportionment purposes. The majority allows this to
happen, however, by focusing on the Bureau’s “immediate
objective” of filling in missing data, which overlooks the fact
that the Bureau estimated nonresponse using a selected sub-
set of the population and imputation was simply a means
to that end.
Fourth, the majority contends that some definitions of
sampling, if viewed broadly, contain no limiting principle and
thus might encompass even “the mental process of infer-
ence.” Ante, at 470. But recognizing the Bureau’s use of
imputation as a form of sampling does not require that sam-
pling be read so broadly. Instead, sampling under § 195 can
be confined to situations where a selected subset of the popu-

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lation has been directly surveyed on a particular attribute
and then that subset is used to estimate population charac-
teristics of that same attribute. Such a limitation is neither
ill defined nor all encompassing.
Apart from the above arguments, which primarily relate
to the statistical characterization of imputation, the majority
makes several additional arguments. It contends that Con-
gress’ use of the term “sampling” should be read narrowly,
limited to what “the Secretary called ‘sampling,’ at the
time.” Ante, at 469. But the statutory prohibition was not
written in terms of what the Secretary viewed as sampling,
nor is there any reason to think Congress intended the term
“sampling” to be read narrowly as a tight restriction on the
Bureau’s ability to gather data for nonapportionment pur-
poses. Rather, the “purpose . . . [was] to permit the utiliza-
tion of something less than a complete enumeration, as im-
plied by the word ‘census,’ . . . except with respect to
apportionment.” H. R. Rep. No. 1043, 85th Cong., 1st Sess.,
10 (1957) (emphasis added). This suggests “sampling” was
meant in a broad rather than narrow sense.
Moreover, because the Bureau’s authorization to use sam-
pling for nonapportionment purposes was simultaneously a
prohibition on the use of sampling for apportionment pur-
poses, it makes even less sense to construe “sampling” nar-
rowly when viewed as a prohibition given the broader
historical context in which § 195 marked “the first departure
from the requirement that the enumerators collect all census
information through personal visits to every household in
the Nation.” House of Representatives, 525 U. S., at 336.
Finally, even if one were willing to assume that the statutory
prohibition should not be read to cover statistical techniques
the Bureau had used for apportionment purposes prior to
1957, that still would not justify the use of imputation since
the Bureau had never before added people to the apportion-
ment count using that process. See Hogan ¶¶ 39, 41, App.
266–268.

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The majority also notes the possibility of Chevron def-
erence with respect to the scope of the term “sampling.”
Ante, at 472 (citing Chevron U. S. A. Inc. v. Natural Re-
sources Defense Council, Inc., 467 U. S. 837, 842–845 (1984)).
But the majority ultimately does not rely on this form of
deference, ante, at 472, nor does it indicate where the Bureau
has provided an interpretation of § 195 that would have the
“force of law” on this issue. See Christensen v. Harris
County, 529 U. S. 576, 587 (2000) (explaining that agency
“[i]nterpretations . . . which lack the force of law . . . do not
warrant Chevron-style deference”). Additionally, based on
the reasons provided by Justice Thomas’ partial dissent,
I would find that the Bureau’s use of imputation to calculate
state population totals for apportionment purposes at least
raises a difficult constitutional question. This provides a
basis to construe § 195 as precluding imputation, regardless
of whether the Bureau is entitled to any form of deference.
See Edward J. DeBartolo Corp. v. Florida Gulf Coast Build-
ing & Constr. Trades Council, 485 U. S. 568, 574–575 (1988).
The majority downplays the idea that imputation could be
used to manipulate census results, arguing that “manipula-
tion would seem difficult to arrange” in light of the “uncer-
tainties as to which States imputation might favor.” Ante,
at 472. But in every census where imputation would alter
the resulting apportionment, the mere decision to impute or
not to impute is a source of possible manipulation. While
that might be averted if the Bureau were required to use
imputation, I do not read the majority’s opinion to demand
that. Moreover, in the past, we have given deference to the
Secretary’s decision not to statistically adjust the census,
even when a final decision on that matter was not made until
after the census was completed. See Wisconsin v. City of
New York, 517 U. S. 1, 10–11, 20–24 (1996).
Finally, the majority suggests that imputation is somehow
“better” than making no statistical adjustment at all. Ante,
at 470. But no party has cited a study suggesting that

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imputation improves distributive accuracy, and the Bureau
admits that numeric rather than distributive accuracy “drove
the process.” Hogan ¶ 34, App. 264; see also id., at ¶¶ 34–35,
App. 265 (acknowledging that it may be “impossible to know
a priori the effects of a particular census operation on
distributive accuracy” and that “[i]n designing Census 2000,
the Census Bureau did not reject operations that would im-
prove numeric accuracy . . . even if these operations might
affect distributive accuracy negatively” (emphasis added)).
I therefore would not assume that imputation necessarily re-
sulted in a “better” census given the recognized importance
of distributive accuracy in assessing overall accuracy. See
Wisconsin, supra, at 20 (stating that “a preference for dis-
tributive accuracy (even at the expense of some numerical
accuracy) would seem to follow from the constitutional pur-
pose of the census, viz., to determine the apportionment of
the Representatives among the States”).
III
Because the Bureau used “hot-deck imputation” to make
the same statistical inferences it could not make through
more transparent reliance on sampling, I would find that the
Bureau’s use of imputation was a form of sampling and thus
was prohibited by § 195. I therefore respectfully dissent
from Part III of the majority’s opinion and have no occasion
to decide whether the Constitution prohibits imputation,
which the majority addresses in Part IV. For these reasons,
I would reverse the judgment of the District Court.
Justice Thomas, with whom Justice Kennedy joins,
concurring in part and dissenting in part.
Conducting a census to count over 200 million people is an
enormously complicated and difficult undertaking. To facili-
tate the task, statisticians have created various methods to
supplement the door-to-door inquiries associated with the
“actual Enumeration” and “counting [of] the whole number

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of persons in each State” required by the Constitution.
Art. I, § 2, cl. 3; Amdt. 14, § 2. Today we consider whether
13 U. S. C. § 195 prohibits the use of one of these methods—
hot-deck imputation—for apportionment purposes, and if
not, whether its use is permissible under the Constitution.
In accordance with our decision in Franklin v. Massachu-
setts, 505 U. S. 788 (1992), I believe that we have jurisdiction
to consider these questions concerning the year 2000 census.
For essentially the same reasons given by the Court, I agree
that imputation is not prohibited by 13 U. S. C. § 195.
I cannot agree, however, with the Court’s resolution of the
constitutional question. The Constitution apportions power
among the States based on their respective populations; con-
sequently, changes in population shift the balance of power
among them. Mindful of the importance of calculating the
population, the Framers chose their language with precision,
requiring an “actual Enumeration,” U. S. Const., Art. I, § 2,
cl. 3. They opted for this language even though they were
well aware that estimation methods and inferences could be
used to calculate population. If the language of the Census
Clause leaves any room for doubt, the historical context, de-
bates accompanying ratification, and subsequent early Cen-
sus Acts confirm that the use of estimation techniques—such
as “hot-deck imputation,” sampling, and the like—do not
comply with the Constitution.
I
The use of the statistical technique known as hot-deck
imputation increased the final year 2000 census count by
1,172,144 people, representing 0.42 percent of the Nation’s
total population. U. S. Dept. of Commerce, Economics and
Statistics Admin., Census 2000 Informational Memorandum
No. 110, App. 443. Utilization of this method in the year
2000 census had important consequences for two States in
particular, North Carolina and Utah: North Carolina gained

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one Representative and Utah lost one Representative as a
result of hot-deck imputation. See ante, at 458.
While the Court has aptly described the process of “hot-
deck imputation,” several facts about this method are worth
noting at the outset. The Census Bureau refers to hot-deck
imputation procedures as “estimation.” U. S. Dept. of
Commerce, Decennial Statistical Studies Division, Census
2000 Procedures and Operations, Memorandum Series Q–34
(hereinafter Memorandum Series), App. 153, 156. It used
this form of “estimation” for three different categories of
units: (1) those units classified as occupied but with no popu-
lation count (household size imputation), (2) those units that
are unclassified (either occupied or vacant) but that “we
know exist” (occupancy imputation), and (3) those units that
are unclassified and are “either occupied, vacant, or delete”
(status imputation). Memorandum Series B–17, id., at 194–
195. The “status imputation” category is the most trou-
bling, because, as explained by the Department of Com-
merce, it refers to households “for which we know nothing,”
id., at 195, and therefore which may not even exist.
The Census Bureau explains that “[f]or estimation pur-
poses, six categories are defined” because each of the pre-
ceding types of units are divided into two groups: single
unit addresses and multiunit addresses. Ibid. The Bureau
calls the six categories “estimation categories,” and permits
only certain types of units for each category to be used as
“donors.” Ibid. The Bureau then uses these donor units,
for which data has already been obtained, to impute charac-
teristics to a neighboring unit that falls within the above
categories.
Whether this “estimation” technique passes constitutional
muster depends on an evaluation of the language of the Cen-
sus Clause and its original understanding.1
1 We gave some consideration to a similar question in Department of
Commerce v. United States House of Representatives, 525 U. S. 316 (1999),

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II
The Framers constitutionalized the requirement that a
census be conducted every decade. U. S. Const., Art. I, § 2,
cl. 3. In so doing, they chose their words with precision.
Chief Justice Marshall instructed that “[a]s men whose inten-
tions require no concealment, generally employ the words
which most directly and aptly express the ideas they intend
to convey, the enlightened patriots who framed our constitu-
tion, and the people who adopted it, must be understood to
have employed words in their natural sense, and to have in-
tended what they have said.” Gibbons v. Ogden, 9 Wheat. 1,
188 (1824). We should be guided, therefore, by the Census
Clause’s “original meaning, for ‘[t]he Constitution is a writ-
ten instrument. As such its meaning does not alter. That
which it meant when adopted, it means now.’ ” McIntyre v.
Ohio Elections Comm’n, 514 U. S. 334, 359 (1995) (Thomas,
J., concurring in judgment) (quoting South Carolina v.
United States, 199 U. S. 437, 448 (1905)).
Article I, § 2, cl. 3, as modified by § 2 of the Fourteenth
Amendment, provides: “Representatives shall be appor-
tioned among the several States according to their respec-
tive numbers, counting the whole number of persons in each
State, excluding Indians not taxed.” The Census Clause
specifies that this “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
when considering a challenge to the Department of Commerce’s decision
to use statistical sampling in the decennial census for apportionment pur-
poses. There was no need, however, to decide the constitutional question
in that case because we held that 13 U. S. C. § 195 “prohibits the use of
sampling in calculating the population for purposes of apportionment.”
525 U. S., at 340. Both Justice Stevens and Justice Scalia, however,
weighed in on the matter. See id., at 362–364 (Stevens, J., dissenting);
id., at 346–349 (Scalia, J., concurring in part).

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Years, in such Manner as they shall by Law direct.” Art. I,
§ 2, cl. 3.2
The Constitution describes the process both as “counting
the whole numbers of persons” and as an “actual Enumera-
tion.” Dictionary definitions contemporaneous with the rat-
ification of the Constitution inform our understanding. “Ac-
tual” was defined at the time of the founding as “really done:
In Metaphysics, that is actual, or in act, which has a real
being or existence, and is opposite to Potential.” N. Bailey,
An Universal Etymological English Dictionary (26th ed.
1789); see also T. Sheridan, A Complete Dictionary of the
English Language (6th ed. 1796) (defining “actual” as
“[r]eally in act, not merely potential; in act, not purely in
speculation”). Sheridan defined “[e]numeration” as “[t]he
act of numbering or counting over” and “[t]o enumerate” as
“to reckon up singly; to count over distinctly.” See also 1
S. Johnson, A Dictionary of the English Language 658 (4th
rev. ed. 1773) (defining “enumerate” as “[t]o reckon up singly;
to count over distinctly; to number”; and “enumeration” as
“[t]he act of numbering or counting over; number told out”).
“Count” was defined as “to number; to tell.” Id., at 435.3
See also 1 N. Webster, An American Dictionary of the Eng-
lish Language (1828) (“To number; to tell or name one by
one, or by small numbers, for ascertaining the whole number
of units in a collection”).
As Justice Scalia explained in Department of Commerce
v. United States House of Representatives, 525 U. S. 316,
346–347 (1999) (opinion concurring in part), dictionary def-
2 The “actual Enumeration” was originally to be used both for apportion-
ment of Members of the House of Representatives and for direct taxation.
Adoption of the Sixteenth Amendment, however, removed the require-
ment of apportionment for direct taxes. U. S. Const., Amdt. 16 (“The
Congress shall have power to lay and collect taxes on incomes, from what-
ever source derived, without apportionment among the several States, and
without regard to any census or enumeration”).
3 The word “count” did not appear in the original version of Art. I, § 2,
cl. 3. It did, however, appear in the definitions of “enumeration.”

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initions contemporaneous with the founding “demonstrate
that an ‘enumeration’ requires an actual counting, and
not just an estimation of number.” “The notion of counting
‘singly,’ ‘separately,’ ‘number by number,’ ‘distinctly,’ which
runs through these definitions is incompatible (or at least
arguably incompatible, which is all that needs to be estab-
lished) with gross statistical estimates.” Id., at 347.4 Nor
can it be said that these definitions encompass estimates by
imputation.5
In addition, at the time of the founding, “conjecture” and
“estimation” were often contrasted with the actual enumera-
tion that was to take place pursuant to the Census Clause.
During debate over the first Census Act, James Madison
made such a distinction, noting that the census would
provide an “exact number of every division” as compared to
“assertions and conjectures.” 2 The Founders’ Constitution
139 (P. Kurland & R. Lerner eds. 1987) (hereinafter Found-
ers’ Constitution). Similarly, when describing a document
containing the results of the first census, Thomas Jeffer-
son noted the difference between the returns that were
“actual” and those that were added in red ink by “conjec-
tur[e].” 8 The Writings of Thomas Jefferson 229 (A. Lips-
comb ed. 1903). George Mason, at one point, observed that
he “doubted much whether the conjectural rule which was
4 The parenthetical reflects the fact that Justice Scalia was construing
a statutory provision so as to avoid serious constitutional doubt. See
House of Representatives, supra, at 346 (opinion concurring in part).
5 Moreover, while the Court states that the Constitution “uses a general
word, ‘enumeration,’ that refers to a counting process without describing
the count’s methodological details,” ante, at 474, the meaning of “enumera-
tion” has not materially changed since the time of the founding. To “enu-
merate” is now defined as “to ascertain the number of: count,” and also
“to specify one after another: list.” See Webster’s Ninth New Collegiate
Dictionary 416 (1988). “Enumeration” meant at the time of the founding,
as it does now, to count individually and specifically and simply does not
admit of various counting methodologies.

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to precede the census, would be as just, as it would be ren-
dered by an actual census.” Founders’ Constitution 108.6
Historians and commentators after the founding also dis-
tinguished actual enumerations from conjectures, demon-
strating that there was a common understanding of these
terms. For instance, an 1835 book about statistics in the
United States explains that “[t]he number of inhabitants in
this country, prior to its separation from Great Britain, rests
principally on conjectural estimates.” T. Pitkin, A Statisti-
cal View of the Commerce of the United States of America
582 (hereinafter Pitkin); see also Brief for Appellants 40–41.
Prior to the revolution, when the British Board of Trade
called upon the Governors to provide an account of their pop-
ulations, some Colonies made “actual enumerations,” such as
Connecticut in 1756 and in 1774, while others made estimates
“founded upon the number of taxable polls, or the number of
the militia.” Pitkin 582–583. A widely cited 1800 article
published in England by John Rickman after the first United
States census also used the term “actual enumeration” sev-
eral times to describe the count that “must always be under
the real number,” noting at the same time that this “method
(fraught with trouble and expence) attempts an accuracy not
necessary, or indeed attainable, in a fluctuating subject.”
John Rickman’s Article on the Desirability of Taking A Cen-
sus, reprinted in D. Glass, Numbering the People 111 (1973)
(hereinafter Glass). See also Brief for Appellants 47. Dis-
cussion of an “actual enumeration” can be contrasted to his
subsequent proposal for England, which included estimation
methods resembling both sampling and imputation since
Rickman deemed it appropriate to make “general inferences”
6 By “conjectural rule,” we can presume that he meant to refer to the
population estimates used by the Constitutional Convention to determine
the number of Representatives of Congress from each State prior to the
first census. See H. Alterman, Counting People: The Census in History
188 (1969) (hereinafter Alterman).

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from modern registers to make up for deficient registers.
Glass 111–112.
To be sure, the Census Clause enables Congress to pre-
scribe the “Manner” in which the enumeration is taken.
The Court suggests that “enumeration” implies the breadth
of Congress’ methodological authority, rather than its con-
straints. See ante, at 474. But while Congress may dictate
the manner in which the census is conducted,7 it does not
have unbridled discretion. For the purposes of apportion-
ment, it must follow the Constitution’s command of an “ac-
tual Enumeration.” Madison made this point clear during
debate of the first Census Act when he noted the difficulties
“attendant on the taking the census, in the way required
by the constitution, and which we are obliged to perform.”
Founders’ Constitution 139.
The Court also places undue weight on the penultimate
version of the Clause, the iteration that was given to the
Committee of Detail and Committee of Style. See ante, at
474–475. Whatever may be said of the earlier version, the
Court rejected a similar reliance in Nixon v. United States,
506 U. S. 224, 231 (1993), because “we must presume that the
Committee’s reorganization or rephrasing accurately cap-
tured what the Framers meant in their unadorned lan-
7 As described infra, at 503–504, Congress has implemented this power
in a variety of ways, such as by authorizing marshals to “cause the number
of the inhabitants to be taken” and to appoint as many assistants as neces-
sary, establishing the timeframe within which the census is to be com-
pleted, and setting methods of payment for assistants. Act of Mar. 1,
1790, § 1, reprinted in C. Wright, History and Growth of the United States
Census (prepared for the Senate Committee on the Census), S. Doc.
No. 194, 56th Cong., 1st Sess., 925 (1900) (hereinafter Wright). In recent
years, the Bureau through its delegated power has adopted a number of
measures to reduce error, including “an extensive advertising campaign,
a more easily completed census questionnaire, and increased use of auto-
mation, which among other things facilitated the development of accurate
maps and geographic files for the 1990 census.” Wisconsin v. City of New
York, 517 U. S. 1, 8 (1996).

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guage.” Carrying the majority’s “argument to its logical
conclusion would constrain us to say that the second to last
draft would govern in every instance where the Committee
of Style added an arguably substantive word. Such a result
is at odds with the fact that the Convention passed the Com-
mittee’s version, and with the well-established rule that the
plain language of the enacted text is the best indicator of
intent.” Id., at 231–232. Rather than rely on the draft,
I focus on the words of the adopted Constitution.
III
The original understanding can be discerned not only by
examining the text but also by considering the “meaning and
intention of the convention which framed and proposed it for
adoption and ratification to the conventions of the people of
and in the several states.” Rhode Island v. Massachusetts,
12 Pet. 657, 721 (1838). The history of census taking in the
Colonies and elsewhere, discussions surrounding the ratifi-
cation of the Census Clause, and the early statutes imple-
menting the Clause provide insight into its meaning.
A
Census taking is an age-old practice. With only a few ex-
ceptions, however, before the 19th century most countries
conducted partial enumerations that were supplemented by
estimates of the unenumerated portion of the population.
Wolfe, Population Censuses Before 1790, 27 J. Am. Statistical
Assn. 357 (1932) (hereinafter Wolfe). The contentious his-
tory of censuses, partial or otherwise, has long influenced
decisions about whether to undertake them. See id., at 358
(“The Biblical account of the Lord’s wrath at the taking of
[the ‘census’ taken by David] remained an argument against
census taking even as late as the eighteenth century”).8 It
8 This traditional religious objection to census taking was based on the
“sin of David, who brought a plague upon Israel by ‘numbering’ the people
(2 Sam. 24:1–25, 1 Chron. 21:1–30).” P. Cohen, A Calculating People 256,

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is a history rampant with manipulation for political and fis-
cal gains. See generally id., at 359–370; Alterman 43, 54;
Glass 19–20.
At times, political resistance to censuses precluded their
taking. Suspicion of government and opposition on reli-
gious grounds, for example, prevented a general census in
France during the 18th century. Wolfe 367; see also Alter-
man 49. And in England, while “estimates and conjectures”
as to changes in the population were frequently made in the
18th century, a 1753 proposal to provide for a general enu-
meration was rejected by Parliament, because it was
thought that a census might reveal England’s “weakness to
her enemies,” and that it might be followed by “some public
misfortune or epidemical distemper.” Wolfe 368 (internal
quotation marks omitted).9
England was in part responsible for the first colonial cen-
suses, as the British Board of Trade required population
counts so that it could properly administer the Colonies. D.
Halacy, Census: 190 Years of Counting America 29 (1980)
(hereinafter Halacy). The Colonies had their own encoun-
ters with various population counting methods. Prior to
1790, there were at least 38 population counts taken in the
Colonies. See Alterman 165. According to one historian,
however, there was “reason to suspect, [that the censuses
were] often intentionally misleading, when officials, on the
one hand of the boastful, or on the other hand of the timid
type, thought to serve some interest by exaggeration or by
understatement.” F. Dexter, Estimates of Population in the
n. 24 (1982) (hereinafter Cohen). Some colonial governors apparently
blamed their inability to administer censuses on this fear, although it is
unclear to what extent this actually reflected public sentiment. Ibid.
9 The 1753 bill contemplated by the British Parliament received a great
deal of publicity and attention. Glass 17. The proposal provided that
overseers would “go from house to house in their parishes, recording the
numbers of persons actually dwelling in each house during the twelve
preceeding hours.” Id., at 18.

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American Colonies, in Proceedings of the American Anti-
quarian Society 22 (1887) (hereinafter Dexter).
Many Americans resisted census-taking efforts. Accord-
ing to an 1887 inventory of the Colonies’ attempts at popula-
tion estimates, “Connecticut pursued in her colonial history
the policy of hiding her strength in quietness; so far as might
not be inconsistent with general truthfulness, she preferred
to make no exhibit of her actual condition.” Id., at 31.10 A
1712 census in New York “met with so much opposition, from
superstitious fear of its breeding sickness, that only partial
returns were obtained.” Id., at 34 (citations omitted). See
also Century 3. In New Jersey, the population counts of
the mid-18th century apparently comprised “such guesses
as the Royal Governors could make, for the satisfaction of
their superiors.” Dexter 36. In 1766, Benjamin Franklin
“supposed that there might be about 160,000 whites in
Pennsylvania . . . but he did not profess to speak with accu-
racy, and was under a bias which led him, perhaps uncon-
sciously, into cautious understatement.” Id., at 38. Geor-
gia was apparently “singularly misrepresented, being
overestimated in the Federal Convention of 1787 at nearly
half as much again as her real amount of population, while
the rest of the colonies were underestimated considerably,—
the total of the Convention’s figures falling short of the real-
ity by more than half a million.” Id., at 49.
The Framers also had experience with various statistical
techniques. For example, Thomas Jefferson, who as Secre-
tary of State would later be charged with running the first
official national census, had a great interest in mathematics
10 See also Dept. of Commerce and Labor, A Century of Population
Growth: From the First Census of the United States to the Twelfth, 1790–
1900, p. 4 (1909) (hereinafter Century) (“The people of Massachusetts and
Connecticut manifested considerable opposition to census taking, seeing
no advantage in it to themselves, and fearing that in some way the in-
formation obtained would be used by the British authorities to their
disadvantage”).

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and numbers. See Halacy 33; Cohen 112–113. In 1782, Jef-
ferson estimated Virginia’s population and his calculation ex-
hibited an awareness that statistical estimation techniques
could be used to calculate population. Virginia had been un-
able to manage a full census for the Continental Congress;
eight counties had failed to turn in any census data. J.
Cassedy, Demography in Early America: Beginnings of
the Statistical Mind, 1600–1800, p. 228 (1969) (hereinafter
Cassedy). Jefferson had to extrapolate from incomplete tax
returns, militia muster rolls, and other data. Nonetheless,
he produced an estimate of 567,614. Ibid. First, he listed
certain known facts, including data about Virginia’s popula-
tion in all but eight counties. In the eight counties for which
information was not available, he knew that there had been
3,161 men in the militia in 1779 and 1780. He then listed
five assumptions, such as “[t]he number of people under 16
years of age was equal to the number 16 years and over,” on
which he based his final estimate. Alterman 168–169.
Another elaborate effort at population calculation was
undertaken by the Governor of Massachusetts in 1763, who
estimated his Colony’s population in three ways. First, he
made an estimate from a return to the General Court of
“ ‘rateable polls’ ” of males over 16 eligible to vote. He
added an estimate of males who were too poor to pay the
poll tax, and then added similar numbers of females. He
made another estimate by multiplying the militia returns by
four. He calculated a third estimate from the number of
houses. Since many believed that houses averaged five oc-
cupants and others “preferred five and a half,” he used both
numbers. After giving the British Board of Trade several
numbers, however, he concluded that the “actual population
was none of these figures” and the population was in fact
higher. Cassedy 73. In any event, “[s]ince all of the re-
turns used in the estimates had been made for tax purposes,
it was understood that they would be well on the low side.”
Ibid.

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The Framers were quite familiar not only with various
census-taking methods but also with impediments to their
successful completion. The Continental Congress had al-
ready used population estimates to make decisions about tax-
ation, and such efforts were met with resistance. In 1775,
the Continental Congress had ascertained population esti-
mates for the Colonies in order to apportion the taxes and
costs of the Revolutionary War. Pitkin 583. See also
Halacy 30–31 (“Debts incurred in the Revolutionary War
hastened the ordering of a standard form of census. A cen-
sus of the colonies had been ordered, but some of them never
complied, and the rest did so in different ways”). New
Hampshire in particular complained that the estimate of its
population for the purposes of calculating Revolutionary War
costs was too high. Pitkin 583. It had “caused an actual
enumeration to be . . . made, by which it appeared, that the
number of her inhabitants” was 20,000 lower than the es-
timate. Ibid. See also Brief for Appellants 47. New
Hampshire petitioned the Continental Congress to change
the amount of taxation. New Hampshire’s effort was in
vain, because Congress “refused to alter her proportion of
her taxes on that account.” Ibid. See also 10 New Hamp-
shire Provincial and State Papers 580 (reprint 1973) (“[T]he
[proportion of taxes assigned New Hampshire by Congress
in 1781] is too high by a very considerable sum, that by our
numbers which were taken in the year 1775 by the selectmen
of the several Towns & Parishes & Return made under
Oath . . . this proportion will appear much too large”).
B
The Framers knew that the calculation of populations
could be and often were skewed for political or financial pur-
poses. Debate about apportionment and the census conse-
quently focused for the most part on creating a standard that
would limit political chicanery. While the Framers did
not extensively discuss the method of census-taking, many

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expressed the desire to bind or “shackle” the legislature so
that neither future Congresses nor the States would be able
to let their biases influence the manner of apportionment.
See Founders’ Constitution 103–104. As James Madison
explained:
“In one respect, the establishment of a common measure
for representation and taxation will have a very salu-
tary effect. As the accuracy of the census to be ob-
tained by the Congress will necessarily depend, in a
considerable degree, on the disposition, if not on the co-
operation of the States, it is of great importance that
the States should feel as little bias as possible to swell
or to reduce the amount of their numbers. Were their
share of representation alone to be governed by this
rule, they would have an interest in exaggerating their
inhabitants. Were the rule to decide their share of tax-
ation alone, a contrary temptation would prevail. By
extending the rule to both objects, the States will have
opposite interests which will control and balance each
other and produce the requisite impartiality.” The Fed-
eralist No. 54, pp. 340–341 (C. Rossiter ed. 1961).
Alexander Hamilton likewise noted, in a discussion about the
proportion of taxes that “[a]n actual census or enumeration
of the people must furnish the rule, a circumstance which
effectually shuts the door to partiality or oppression.” Id.,
No. 36, at 220.
Discussion revealed a keen awareness that absent some
fixed standard, the numbers were bound to be subject to po-
litical manipulation. While Gouverneor Morris appears to
have been one of the strongest opponents of “fettering the
Legislature too much,” he at least recognized that if the
mode for taking the census was “unfixt the Legislature may
use such a mode as will defeat the object: and perpetuate
the inequality.” Founders’ Constitution 102. He believed,
however, that “[i]f we can’t agree on a rule that will be just

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at this time, how can we expect to find one that will be just
in all times to come.” Id., at 104. Edmund Randolph, on
the other hand, noted that if dangers suggested by Gouver-
neor Morris were “real, of advantage being taken of the Leg-
islature in pressing moments, it was an additional reason, for
tying their hands in such a manner that they could not sacri-
fice their trust to momentary considerations.” Id., at 103.
During debate of a proposal “to take a periodical census,”
George Mason noted that he “did not object to the conjec-
tural ratio which was to prevail in the outset” for apportion-
ment, prior to the census, but “considered a Revision from
time to time according to some permanent & precise stand-
ard as essential to . . . fair representation.” Id., at 102–103.
“From the nature of man,” Mason observed, “we may be
sure, that those who have power in their hands will not give
it up while they can retain it. On the Contrary we know
they will always when they can rather increase it.” Id.,
at 103.
Some who initially believed that the Congress should have
discretion changed their minds after listening to the argu-
ments by Randolph, Mason, and others. Roger Sherman,
for example, “was at first for leaving the matter wholly to
the discretion of the Legislature; but he had been convinced
by the observations of (Mr. Randolph & Mr. Mason) that the
periods & the rule of revising the Representation ought
to be fixt by the Constitution.” Id., at 104. Nathaniel
Ghorum perceptively noted that “[i]f the Convention who are
comparatively so little biassed by local views are so much
perplexed, How can it be expected that the Legislature here-
after under the full biass of those views, will be able to settle
a standard.” Ibid. On the other hand, Reid continued to
believe that “the Legislature ought not to be too much shack-
led.” Ibid. He also thought that “[it] would make the Con-
stitution like Religious Creeds, embarrassing to those bound
to conform to them & more likely to produce dissatisfaction
and Scism, than harmony and union.” Ibid.

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While debate continued, with various iterations of the
Clause considered, it was clear that the principle concern was
that the Constitution establish a standard resistant to manip-
ulation. As Justice Story later observed, “apportion[ing]
representatives among the states according to their relative
numbers . . . had the recommendation of great simplicity and
uniformity in its operation, of being generally acceptable to
the people, and of being less liable to fraud and evasion, than
any other, which could be devised.” Commentaries on the
Constitution of the United States § 327, p. 238 (R. Rotunda &
J. Nowak eds. 1987).
C
We have long relied on contemporaneous constructions of
the Constitution when interpreting its provisions, for “early
congressional enactments ‘provid[e] “contemporaneous and
weighty evidence” of the Constitution’s meaning.’ ” Printz
v. United States, 521 U. S. 898, 905 (1997) (citations omitted).
See also Myers v. United States, 272 U. S. 52, 175 (1926)
(“This Court has repeatedly laid down the principle that a
contemporaneous legislative exposition of the Constitution
when the founders of our Government and framers of our
Constitution were actively participating in public affairs, ac-
quiesced in for a long term of years, fixes the construction
to be given its provisions” (collecting cases)). Accordingly,
I turn next to the early Census Acts, which provide signifi-
cant additional evidence that the Framers meant what they
said in adopting the words “actual Enumeration.”
From the first census, Congress directed that the census
be taken by actually counting the people. House of Repre-
sentatives, 525 U. S., at 335. Congress enacted a series of
requirements for how to accomplish the counting; none men-
tion the use of sampling or any other statistical technique or
method of estimation. Rather, the first Census Act de-
scribed, among other things, how many census takers (or
deputies) could be used, their pay, the consequences of falsi-
fying papers, what address to attribute to persons who had

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more than one address, and how to count those who did not
have an address. Congress ordered the first census to begin
on August 2, 1790, and to be completed within nine months.
Century 45. Marshals and their assistants were required to
“take an oath or affirmation” to “ ‘truly cause to be made, a
just and perfect enumeration and description of all persons
resident within [their] district[s].’ ” Act of Mar. 1, 1790, § 1,
reprinted in Wright 925.
The Act required marshals to aggregate the numbers, but
there was no provision allowing the marshals to estimate or
extrapolate in order to fill in missing data. The Act pro-
vided that the “assistants” could, for a particular family, use
data given by one member of that family. But the informa-
tion could be taken only from persons over age 16, and these
persons were required to give the assistant “a true account.”
§ 6, id., at 926. No other method of counting appears to have
been permissible. And failure to make a return or falsifying
a return triggered heavy monetary penalties and the threat
of prosecution. §§ 2, 3, ibid. In 1810, Congress added an
express statement that “ ‘the said enumeration shall be made
by an actual inquiry at every dwelling-house, or of the head
of every family within each district, and not otherwise.’ ”
House of Representatives, supra, at 335 (citing Act of Mar.
26, 1810, § 1, 2 Stat. 565–566). The provision requiring cen-
sus takers to visit personally each home appeared in statutes
governing the next 14 censuses. See 525 U. S., at 335–336,
and n. 5 (surveying Census Acts).
There was widespread awareness that the early censuses
were not entirely accurate. The enumerators confronted
many problems, including confusion regarding which houses
belonged to which districts, danger on the roads, the unwill-
ingness of citizens to give the required information, supersti-
tion, and a fear from some that the census was connected to
taxation. Century 45–46. For example, in a 1791 letter
from George Washington to Gouverneor Morris dated before
the first census was complete, Washington noted the differ-

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ence between the “enumeration” and an estimate he had pre-
viously given, and acknowledged that the official census
would not be accurate:
“In one of my letters to you the account which I gave of
the number of inhabitants which would probably be
found in the United States on enumeration, was too
large. The estimate was then founded on the ideas held
out by the Gentlemen in Congress of the population of
their several States, each of whom (as was very natural)
looking thro’ a magnifying glass would speak of the
greatest extent, to which there was any probability of
their numbers reaching. Returns of the Census have
already been made from several of the States and a tol-
erably just estimate has been formed now in others, by
which it appears that we shall hardly reach four millions;
but one thing is certain our real numbers will exceed,
greatly, the official returns of them.” 31 Writings of
George Washington 329 (J. Fitzpatrick ed. 1931).
Apparently concerned about the effect that the results of
the first census would have on foreign opinion, Jefferson, in
a 1791 letter sending the results abroad, explained: “I enclose
you a copy of our census, which, so far as it is written in
black ink, is founded on actual returns, what is in red ink
being conjectured, but very near the truth. Making very
small allowance for omissions, which we know to have been
very great, we may safely say we are above four millions.”
8 Writings of Thomas Jefferson, at 229. While perhaps dis-
appointed with the results of the census, he noted the differ-
ence between the returns that were “actual” and those that
were added in red ink by “conjectur[e].” Ibid.11 There is
11 It was later believed that the disappointment was “largely due to the
exaggerated estimates of colonial population.” Wright 17. See also Al-
terman 205 (“Many census historians believe, as Washington hinted . . .
that the disappointment was due to the exaggerated hopes born of a newly
won independence, as well as to the unrealistic estimates of the colonial
population”).

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no suggestion, however, that his additional “conjectures”
were used for apportionment. See T. Woolsey, The First
Century of the Republic 221 (1876); Alterman 205. “Despite
its deficiencies, the census provided the factual base about
the American people which officials and scholars needed.”
Cassedy 220. Thus, while the Court asserts that there was
a “strong constitutional interest in accuracy,” ante, at 478,
the stronger suggestion is that the Framers placed a higher
value on preventing political manipulation.
IV
The text, history, and a review of the original understand-
ing of the Census Clause confirm that an actual enumeration
means an actual count, without estimation. While more so-
phisticated statistical techniques may be available today than
at the time of the founding, the Framers had a great deal of
familiarity with alternative methods of calculating popula-
tion. They decided to constitutionalize the arduous task of
an actual enumeration. I am persuaded that much like the
earlier methods of estimation, hot-deck imputation—a mod-
ern statistical technique that the Census Bureau refers to as
“estimation”—is not constitutionally permissible.
In recent decades, decisions regarding whether, and what
kind of, imputation and other statistical methods should be
utilized have changed from administration to administration.
Departing from past practice, imputation was first used in
the year 1960 census. The Bureau has used some form of it
in every decennial census since then. Plaintiffs’ Statement
of Undisputed Facts, App. 44; Response to Plaintiffs’ State-
ment of Material Facts, id., at 222. In the year 1970 census,
about 900,000 persons were imputed to the apportionment
count through household size and occupancy imputation.
The Census Bureau also used a form of estimation that com-
bined imputation and sampling. Declaration of Howard
Hogan, id., at 268–269 (hereinafter Hogan). In 1980, the use
of imputation shifted one seat in the House of Representa-

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tives from Indiana to Florida, id., at 46, 224, making the year
2000 census at least the second time that its use has
changed apportionment.12
At the earliest, status imputation was used in the year
1990 census, although there is some dispute as to whether it
was even used then. Id., at 45–46, n. 4; but see id., at
223 (stating that “the 1990 imputation procedures contin-
ued the prior practice of using household size imputation and
occupancy imputation but added status imputation”). Re-
gardless, it apparently had no impact on apportionment.
See id., at 45–46, n. 4. In the year 1990 census, the Secre-
tary specifically decided against using a different form of es-
timation. The “Secretary’s administrative decision declin-
ing to make an adjustment observed that ‘[t]he imputation
scheme used . . . [was] based on a series of assumptions that
are mostly guesswork.’ ” Brief for Federal Petitioners in
Wisconsin v. City of New York, O. T. 1995, Nos. 94–1614 etc.,
p. 8. The Secretary even noted that “large-scale statistical
adjustment of the census through [this method] would ‘aban-
don a two hundred year tradition of how we actually count
people,’ ” and that “statistical adjustment of the 1990 census
might open the door to political tampering in the future.”
Wisconsin v. City of New York, 517 U. S. 1, 10–12 (1996).
Though different in kind, our recent history of experimen-
tation with census-taking methods bears similarity to the
various preratification estimates and enumerations. While
I would not speculate about the Bureau’s decisionmaking
process, it is quite evident that the Framers, aware that the
use of any estimation left the door open to political abuse,
adopted the words “actual Enumeration” to preclude the
availability of methods that permit political manipulation.
Additionally, hot-deck imputation is properly understood
as an estimation, which by definition cannot be an actual
12 The Bureau states it “no longer has data available to determine
whether count imputation affected apportionment in the 1960 or the 1970
Censuses.” App. 224.

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508 UTAH v. EVANS
Opinion of Thomas, J.
counting of persons. The Court contends that imputation
does not differ in principle from other traditional methods of
counting, such as questioning of “ ‘neighbors, landlords,
postal workers, or other proxies’ ” about the number of
inhabitants in a particular place. Ante, at 477. But that
point is flawed in several important respects. To begin
with, from the first census, such information was taken
through an actual inquiry of a family member who was over
the age of 16. Act of Mar. 1, 1790, § 6, reprinted in Wright
926. That household member was “obliged to render to such
assistant of the division, a true account, if required, to the
best of his or her knowledge, of all and every person belong-
ing to such family respectively . . . on pain of forfeiting
twenty dollars, to be sued for and recovered by such assist-
ant.” Ibid. Estimation was not allowed and family mem-
bers who were caught providing false information were sub-
ject to fines.
Questioning neighbors was not permitted until 1880 and
even then census data could only be based on information
provided by those “living nearest to such place of abode.”
Act of Mar. 3, 1879, § 8, id., at 937. Again, family members
or agents of families were required by law “to render a true
account” and those who “willfully fail[ed] or refuse[d]” were
“guilty of a misdemeanor” and required to “pay a sum not
exceeding one hundred dollars.” § 14, id., at 938. That
process is far different from a computation where data about
one “donor” house, that appears on “Census Burea[u] rec-
ords,” Hogan, App. 255, compiled far away from the actual
residence, is used to estimate data about another. With
“status imputation,” for example, the Census Bureau is will-
ing to impute data even though it categorizes these house-
holds as “Donees” “for which we know nothing.” Memoran-
dum Series B–17, id., at 195. While subsequent Acts may
permit other forms of proxy, they do not assist with our anal-
ysis of the original understanding. Nor are we called upon
to judge their constitutionality here. Because hot-deck im-
putation is an estimation procedure that includes persons not

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509 Cite as: 536 U. S. 452 (2002)
Opinion of Thomas, J.
“actually” counted, its use to adjust the census for apportion-
ment purposes runs afoul of the Constitution.
The Court’s further reflection that “the Bureau’s only
choice is to disregard the information it has, using a figure
of zero, or to use imputation in an effort to achieve greater
accuracy,” ante, at 478, makes no difference as to whether it
is constitutionally permissible. Even if hot-deck imputation
produces more accurate results (and we do not have the
means to answer that question), the Framers well under-
stood that some Americans would go uncounted. Accuracy
is not the dispositive factor in the constitutional consider-
ation. Despite their awareness that estimation techniques
could be used to supplement data, the Framers chose instead
to require an “actual Enumeration” or “counting of whole
persons.” Disappointment following the first census did not
prompt a change in this view or in the text. A zero must
remain a zero under the dictates of the Constitution.
The Court takes the position that “enumeration” may be
incompatible with gross statistical estimates, but concludes
that such gross estimates are not at stake here. See ante,
at 476. I derive little comfort from the fact that the Court
has drawn a constitutional line at “ ‘gross statistical esti-
mates.’ ” Ibid. The Court neglects to explain the bound-
aries of such gross estimates, begging the question of how
“gross” must “gross” be? The Court nonchalantly com-
ments that the Census Bureau used the method “sparingly,”
see ante, at 477, and that the “inference involves a tiny per-
cent of the population,” ante, at 479. But the consequences
are far from trivial. One State’s representation in Congress
is reduced while another’s is fortified. If the use of hot-deck
imputation in the next Census shifts the balance of power in
“only” two or three seats, will the Court continue to defend
the method? Today, we deal with hot-deck imputation.
But if history is our guide, surely other statistical methods
will be employed in future censuses and there will be similar
challenges. By accepting one method of estimation as con-

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510 UTAH v. EVANS
Scalia, J., dissenting
stitutionally permissible, the Court has opened the door, and
we will be continually called to judge whether one form of
estimation is more acceptable than another.13
* * *
After much debate and faced with a long history of politi-
cal manipulation, the Framers decided to make the taking
of an “actual Enumeration” a constitutional requirement.
While other nations had attempted population counts, none
had made the count itself an important method of main-
taining democracy by mandating it through a founding
document. As a leading French statistician noted: “The
United States presents in its history a phenomenon that has
no parallel—that of a people who initiated the statistics of
their country on the very day that they formed their gov-
ernment, and who regulated, in the same instrument, the
census of their citizens, their civil and political rights,
and the destiny of their people.” Alterman 164. Well fa-
miliar with methods of estimation, the Framers chose to
make an “actual Enumeration” part of our constitutional
structure. Today, the Court undermines their decision,
leaving the basis of our representative government vulnera-
ble to political manipulation.
For the reasons stated above, I respectfully dissent from
Part IV of the Court’s opinion and would reverse the judg-
ment of the District Court.
Justice Scalia, dissenting.
For the reasons I set forth in my opinion in Franklin v.
Massachusetts, 505 U. S. 788, 823–829 (1992) (concurring in
part and concurring in judgment)—and for an additional one
brought forth in the briefing and argument of the present
13 See House of Representatives, 525 U. S., at 349 (Scalia, J., concurring
in part) (“The prospect of this Court’s reviewing estimation techniques in
the future, to determine which of them so obviously creates a distortion
that it cannot be allowed, is not a happy one”).

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Scalia, J., dissenting
case—I disagree with the Court’s holding that appellants
have standing under Article III of the Constitution to bring
this suit.
As the Court acknowledges, in order to establish standing,
appellants must show that the federal courts “have the
power to redress the injury that the [federal appellees] alleg-
edly caused [them].” Ante, at 459 (internal quotation marks
omitted). Yet the Court does not dispute that, even if appel-
lants were to succeed in their challenge and a court were to
order the Secretary of Commerce to recalculate the final cen-
sus, their injury would not be redressed “unless the Presi-
dent accepts the new numbers, changes his calculations ac-
cordingly, and issues a new reapportionment statement to
Congress . . . .” Franklin, supra, at 824. That fact is fatal
to appellants’ standing because appellants have not sued the
President to force him to take these steps—and could not
successfully do so even if they tried, since “no court has au-
thority to direct the President to take an official act,” 505
U. S., at 826. As the Court acknowledged in Franklin, the
President enjoys the discretion to refuse to issue a new reap-
portionment statement to Congress: “[H]e is not . . . required
to adhere to the policy decisions reflected in the Secretary’s
report.” Id., at 799; see also id., at 800. It displays gross
disrespect to the President to assume that he will obediently
follow the advice of his subordinates—in this case, a new
report by his Secretary, recommending that he alter his
prior determination. Id., at 824–825 (Scalia, J., concurring
in part and concurring in judgment). Thus, because appel-
lants’ “standing depends on the unfettered choices made by
independent actors not before the courts and whose exercise
of broad and legitimate discretion the courts cannot presume
either to control or to predict,” Lujan v. Defenders of Wild-
life, 504 U. S. 555, 562 (1992) (internal quotation marks omit-
ted), standing in this case does not exist.
The case for appellants’ standing is even weaker than I
described it in Franklin. Redress of their alleged injuries

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512 UTAH v. EVANS
Scalia, J., dissenting
depends not only on a particular exercise of the President’s
discretion, but also on the exercise of the unbridled dis-
cretion of a majority of 435 Representatives and 100 Sen-
ators (or two-thirds if the President does not agree), whom
federal courts are equally powerless to order to take official
acts.
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.” Section 5 of the Fourteenth Amendment pro-
vides that “[t]he Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.” Pur-
suant to that authorization, Congress has provided that, once
the President transmits to Congress the decennial reappor-
tionment statement that the statute requires, 46 Stat. 26, 2
U. S. C. § 2a(a), “[e]ach State shall be entitled, . . . until the
taking effect of a reapportionment under this section or sub-
sequent statute, to the number of Representatives shown in
[that] statement,” § 2a(b). Thus, the law provides only two
means by which Utah’s entitlement can be altered: “the tak-
ing effect of a reapportionment under this section or subse-
quent statute.” Ibid. The first means refers to the next
decennial census; 1 the second to a new law enacted in the
interim. Thus, even if the President wanted to transfer one
congressional seat from North Carolina to Utah, he could
not do so before 2011 unless Congress enacted a new law
authorizing such a reapportionment.
1 It cannot be deemed to refer to reapportionment under the new Presi-
dential statement that appellants seek, because “reapportionment under
this section” pursuant to the 2000 census has already occurred. The
Presidential statement effecting “reapportionment under this section”
must be transmitted “[o]n the first day, or within one week thereafter, of
the first regular session” of the first Congress after the census, § 2a(a)—a
deadline met by the President’s statement under challenge here, but now
long since passed.

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Scalia, J., dissenting
The Court no doubt realizes that it is not even conceivable
that appellants could have standing if redress of their inju-
ries hinged on action by Congress; accordingly, it is driven
to assert that the law does not mean what it says. The stat-
ute, the Court argues, “do[es] not expressly say” what is to
occur when the numbers the Secretary reported to the Presi-
dent are flawed; accordingly, because it “makes good sense”
to do so, the Court reads into the statute a third means by
which the reapportionment can be altered: judicially decreed
“mechanical revision” of “a clerical, a mathematical, or a
calculation error” in the Secretary’s report. Ante, at 462.
This is an astonishing exercise of raw judicial power. The
statute says very clearly what is to occur when anything
(including a clerical, mathematical, or calculation error in the
Secretary’s report) renders the completed apportionment
worthy of revision: nothing at all, unless Congress deems it
worthy of revision and enacts a new law making or authoriz-
ing the revision that Congress thinks appropriate. There
was no reason for the statute to list “expressly” the infinite
number of circumstances in which the reapportionment could
not be altered by other means, because it expressly said that
the States’ “entitle[ment]” to the number of Representatives
shown in the presidential statement could be altered only
by the two prescribed means. There is simply no other way
to read the governing text: that the States “shall be entitled”
to the reapportionment set forth in the President’s statement
“until” one of two events occurs, undeniably means that un-
less one of those two events occurs the States remain “enti-
tled” to the reapportionment. What a wild principle of in-
terpretation the Court today embraces: When a statute says
that an act can be done only by means x or y, it can also
be done by other means that “make good sense” under the
circumstances, unless all the circumstances in which it can-
not be done have been listed.
I would not subscribe to application of this deformed new
canon of construction even if there were something about

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514 UTAH v. EVANS
Scalia, J., dissenting
“clerical error” that made it uniquely insusceptible of correc-
tion by the means set forth in the statute. But there is not.
Indeed, what more plausible and predictable occasion for
congressional revision could there be than the demonstration
of an error in the reported census count? By taking the
responsibility for determining and remedying that error
away from Congress, where the statute has placed it, and
grasping it with its own hands, the Court commits a flagrant
violation of the separation of powers.
The Court can find no excuse in our precedents for today’s
holding. It relies on three of our cases in which it says we
“found standing in similar circumstances,” ante, at 464.
They are similar as day and night are similar. Two of them,
Federal Election Comm’n v. Akins, 524 U. S. 11 (1998), and
Metropolitan Washington Airports Authority v. Citizens
for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991),
are inapposite because redress of the plaintiffs’ injuries did
not require action by an independent third party that was
not (and could not be) brought to answer before a federal
court, much less by a third party for whom (as for the Presi-
dent) it would be disrespectful for us to presume a course of
action, and much, much less in violation of the explicit text
of a statute.2 Although in the third case, Bennett v. Spear,
520 U. S. 154 (1997), we found standing to challenge the ac-
tion of one agency (Fish and Wildlife Service) despite the
fact that redress ultimately depended upon action by another
agency (Bureau of Reclamation) not before the Court, we
made it quite clear that we came to this conclusion only be-
cause in the matter at issue the one agency had the power
to coerce action by the other: “[I]t does not suffice,” we said,
“if the injury complained of is the result of the independent
action of some third party not before the court.” Id., at 169
2 Moreover, in Metropolitan Washington there was no doubt that, if a
court enjoined the challenged action, the injuries it allegedly caused would
be redressed automatically by operation of law. See 501 U. S., at 265
(citing 49 U. S. C. App. § 2456(h)).

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Scalia, J., dissenting
(internal quotation marks and brackets omitted). We found
that, “while the [Service] theoretically serves an advisory
function, in reality it has a powerful coercive effect on the
action agency.” Ibid. (internal quotation marks and citation
omitted). In this case, by contrast, we simply cannot say—
both because it is not true and because it displays gross dis-
respect to do so—that the action of the President is “co-
erced” by the Secretary. Not to mention, once again, the
statute that explicitly leaves this question to Congress.
For these reasons, I would vacate the judgment of the Dis-
trict Court and remand with instructions to dismiss for want
of jurisdiction.