This is an action for declaratory judgment brought by the Commonwealth of Virginia under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1994) ("Section 5"). *fn1 See also 28 U.S.C. §§ 2201, 2284 (1994). Virginia seeks a declaratory judgment concerning recent revisions to the Virginia Election Code, enacted as 2000 Va. Acts ch. 884 ("Chapter 884"). Chapter 884 directs the legislature to use unadjusted population counts provided by the Bureau of the Census when redrawing congressional, state Senate, and state House of Delegates districts. See Va. Code Ann. § 24.2-301.1 (2000). In addition, Chapter 884 mandates the use of unadjusted figures when reapportioning representation in the governing bodies of Virginia's counties, cities, and towns. See Va. Code Ann. § 24.2-304.1 (2000). Finally, Chapter 884 provides additional time for Virginia's localities to create or modify precincts, following the Census Bureau's release of census data. See Va. Code Ann. § 24.2-309.1 (2000).
Virginia presents three major claims in its Amended Complaint of May 18, 2000. First, Virginia argues that Chapter 884 does not require Section 5 preclearance because (1) the Census Act, 13 U.S.C. § 195 (1990), and the United States Constitution require the use of unadjusted figures and (2) Virginia's "continued" use of unadjusted figures does not constitute a "change" in redistricting practices within the meaning of Section 5. Amended Complaint ¶¶ 17-20. Second, Virginia claims that, even if preclearance is required, Chapter 884 was not implemented with the purpose - nor would it have the effect - of "retrogression." Id. ¶¶ 24-29. Finally, Virginia challenges the decision of Attorney General Reno to use adjusted figures in Department of Justice preclearance evaluations as being in violation of the Census Act and the Constitution. Id. ¶¶ 21-22.
On June 19, 2000, the United States filed a motion to dismiss the Amended Complaint without prejudice, under Fed. R. Civ. P. 12(b)(1), or to stay the proceedings, on the ground that Virginia's claims are not yet ripe. See Memorandum in Support of Defendant's Motion to Dismiss or Stay Proceedings ("Motion to Dismiss"). On June 30, 2000, Virginia filed an opposition to the United States' motion and a motion for summary judgment, which the United States opposed. See Memorandum Opposing Defendants' Motion to Dismiss or Stay and in Support of Plaintiff's Motion for Summary Judgment ("Opposition to Motion to Dismiss"); Reply Memorandum in Support of United States' Motion to Dismiss or Stay Proceedings ("Reply Memorandum"). The court heard argument on the United States' motion to dismiss on September 21, 2000.
Upon review of the pleadings and arguments of counsel, the court grants the United States' motion to dismiss as to counts I, II, III, and IV of the Amended Complaint. As to count V, because the United States does not oppose preclearance of Va. Code § 24.2-309.1, we grant judgment to Virginia.
Article I, Section 2, Clause 3 of the United States Constitution requires a decennial census of the population. Data from this census are used to calculate state population totals for congressional apportionment. See U.S. Const. art. I, § 2, cl. 3. To this end, the Census Act requires the Secretary of Commerce to report state population totals from Census 2000 to the President within nine months of the census date, i.e., by January 1, 2001. See 13 U.S.C. § 141(b)(1990). In addition to this constitutional purpose, the data from Census 2000 are used by states (including the Commonwealth of Virginia) to draw boundaries for state and local legislative bodies. See Opposition to Motion to Dismiss at 4-5. The Census Act requires the Census Bureau in the Commerce Department to report this block-level data for use in state redistricting directly to the states "within one year after the decennial census date," i.e., by April 1, 2001. 13 U.S.C. § 141(c)(1990).
Studies by the Census Bureau demonstrate that each census has produced a net undercount of the population and shown a higher "differential undercount" for ethnic and racial minorities and children. See U.S. Department of Commerce, Bureau of the Census, Accuracy and Coverage Evaluation: Statement on the Feasibility of Using Statistical Methods to Improve the Accuracy of Census 2000 (2000) at 4-7 ("Feasibility Statement"). To increase the accuracy of the census, the Census Bureau has developed a series of statistical methods that correct for these differential undercounts and generate "adjusted" census figures. The Census Bureau's "adjustment" practice, however, has prompted debate and criticism, resulting in several limitations on the Census Bureau's authority to release statistically adjusted figures for the 2000 Census. First, Congress has directed that, if the Census Bureau releases adjusted figures in satisfaction of its § 141 obligations, it must also release a companion set of block-level, unadjusted population data. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, § 209(j), 111 Stat. 2440, 2483 (1997). Second, in Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999), the Supreme Court recently held that the Census Act prohibits the use of adjusted data for constitutionally-mandated congressional apportionment. Id. at 343.
Following the decision in Department of Commerce, the Census Bureau announced that it has not yet determined whether to release adjusted data for purposes of state redistricting under § 141(c). *fn2 See Feasibility Statement at 52. The Census Bureau intends to conduct an Accuracy Coverage Evaluation ("A.C.E."), which "is designed to correct for missed individuals or erroneous enumerations in the traditional enumeration." Id. at 1. After the A.C.E. is completed, the Census Bureau will conduct a thorough review of its quality and methodology. See id. at 52. In testimony before Congress in May 2000, the Director of the Census Bureau stated that while the Bureau "currently expects that the corrected numbers using [sampling] will be the more accurate numbers," it will not release adjusted data if it "does not have confidence in the [sampled] results." Prepared Testimony of Kenneth Prewitt, Director, U.S. Bureau of the Census, Before the Subcommittee on the Census, Committee on Government Reform, U.S. House of Representatives (May 19, 2000), available at 2000 WL 668026.
In the 2000 Session of the Virginia General Assembly, Virginia enacted Chapter 884. Chapter 884 amends § 24.2-304.1 to state in pertinent part:
§ 24.2-304.1. At-large and district elections; reapportionment of districts or wards; limits.
C. For the purposes of reapportioning representation in 2001 and every ten years thereafter, the governing body of a county, city, or town shall use the most recent decennial population figures . . . from the United States Bureau of the Census, which figures are identical to those from the actual enumeration conducted by the United States Bureau of the Census ...