Young v. Klutznick , 652 F.2d 617 ( 1981 )

MERRITT, Circuit Judge.

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

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

I. STATEMENT OF THE CASE

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

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

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

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

COMPARISON BY RACE .AND SEX OF PERCENT NET UNDERCOUNTS. BY AGE: 1970

[[Image here]]

NOTE- ESTIMATES FOR 1970 ARE BASED ON ADJUSTED CENSUS DATA. A NEGATIVE SIGN DENOTES A NET CENSUS OVFRCOUNT.

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

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

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

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

B. The 1980 Undercount Estimates Based on the 1980 Census

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

The relative undercount was probably considerably smaller in 1980 than in earlier censuses but its extent and distribution cannot be reliably defined or estimated because we are not able to measure how many illegals were present and counted. In the absence of reliable information on illegals, and in light of the data now in hand, it is clear that the “true” population and, hence the undercount for 1980 cannot be reliably estimated in the near term, if at all. Because of the much smaller measured undercount, it is our firm judgment on statistical grounds that adjustments for undercount are not in the public interest.

45 Fed.Reg. 82874 (1980).

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

Percent

United States 1980 1970 Distribution

1980 1970

Total................ 226,504,825 203,211,926 100.0 100.0

White ................ 188,340,790 177,748,975 83.2 87.5

Black ................. 26,488,218 22,580,289 11.7 11.1

American Indian,

Eskimo, and Aleut ... 1,418,195 827,268 0.6 0.4

Asian and Pacific

Islander ............. 3,500,636 1,538,721 1.5 0.8

Other ................. 6,756,986 516,673 3.0 0.3

Persons of Spanish

Origin .............. 14,605,883 9,072,602 6.4 4.5

Persons not of

Spanish Origin ...... 211,898,942 194,139,324 93.6 95.5

The report states:

Comparisons with demographic estimates suggest that the 1980 undercount rate for blacks may be in the range of 4.5 to 5.5% compared to the estimated miss rate of 7.7% in 1970. In short, the Bureau feels that it may have achieved a 30-40% improvement in the undercount rate between 1970 and 1980. Similar analyses for other groups have not been completed.

C. The Remedy Imposed by the District Court

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

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

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

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

II. JUSTICIABILITY

A. Standing

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

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

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

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

The injury to the Plaintiff Young’s right of equal representation and equal weight of vote in the United States House of Representatives relates to the use of unadjusted census data for the apportionment of Congressional representation within the State of Michigan ....

The City of Detroit will be disparately uridereounted in relation to the predominantly White suburbs and other areas of the state having little or no Black or Hispanic population.

The injury to the Plaintiff Young’s right to equal representation and equal weight of vote in the United States House of Representatives results directly from the fact that the Census Bureau certifies an official population count of the cities and sub-state areas of the State of Michigan that is not adjusted for the differential undercount of Blacks and Hispanics. The official population count as certified by the Census Bureau will be used by the Michigan Legislature or the federal courts if necessary ... as it will be by the legislatures of all the other states, to redistrict representative districts for the United States House of Representatives. Because that official population count is not adjusted for the Black and Hispanic differential under-count, an apportionment pursuant to that official population count has caused and will cause injury to the Plaintiff Young’s right to equal representation and equal weight of vote.

Brief of Appellee 54-57 (emphasis added).

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

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

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

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

B. Ripeness

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

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

an opportunity to function — to iron out differences, to accommodate special problems. . . . The courts do not and should not pass on these complex problems in the abstract and the general — because these regulations peculiarly depend for their quality and substance upon the facts of particular situations. We should confine ourselves — as our jurisprudence dictates — to actual, specific, particularized cases and controversies, in substance as well as in technical analysis.

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

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

Accordingly, the judgment of the District Court is reversed.

1 . Article I, Section 2, Clause 3 of the original Constitution provides:

Representatives ... shall be apportioned among the several States . . . according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons ... and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.

The provision of the original Constitution providing for Congressional representation based on three-fifths of the slave population was removed by the first sentence of Section 2 of the Fourteenth Amendment:

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.

2 . The statutory construction issue arises from the language of 13 U.S.C. § 195 (1976):

Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as “sampling” in carrying out the provisions of this title.

3 . April 1, 1980, is the decennial census date for the 1980 census. The Census Act provides:

The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.

13 U.S.C. § 141(b) (1976).

Section 141(c) provides in part “[BJasic tabulation of population of each other State, shall, in any event, be completed, reported and transmitted to each respective State within one year after the decennial census date.”

4 . Many factors account for the fact that some individuals are more difficult to count than others: attitudes toward government, visibility, and stability are personal characteristics which vary among regions and among different groups depending on age, sex, income, literacy, immigration status, employment, race and other cultural and religious traditions which mold living styles and environment. Non-personal factors such as climate, census procedures, house design and distance between homes also contribute.

5 . It is estimated that approximately one-third of the nation’s approximately 25 million blacks fall below the income-based poverty line, but the estimated figure for whites as a group is much smaller.

6 . These studies were completed three years after taking the census. For purposes of this case it is not important to explain in detail the survey methods on which this estimated under-count is based. It is sufficient to note that experts seem to agree that “demographic analysis” provides the most reliable testing procedure. Under this method the demographer tests the census by using the age, sex and race breakdowns from previous censuses supplemented by other data — for example, birth and death registrations and medicare records. The Census Bureau also uses reinterview surveys and samples in order statistically to project standard rates of deviation and error.

7 . See footnote 2, supra.

8 . A secondary standing consideration is related to the question of remedy. Although this relationship has never been well-defined, either before or after the changes in the standing doctrine defined in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), see Vining, Legal Identity 26 (1978), standing does still depend on the existence of a situation where “the exercise of the Court’s remedial powers would redress the claimed injuries.” Duke Power Co., supra, 438 U.S. at 73, 98 S.Ct. at 2630. Obviously there are many unjust conditions and occurrences, natural and man-made, which federal courts do not have the strength, wisdom or power to remedy in a timely manner. When there is no realistic remedy available, there is no point in deciding the merits. In light of our disposition of the justiciability issue based on other considerations, we need not decide whether the only remedy available — the synthetic method — is so unrealistic that it defeats standing to litigate the case on the merits.