Box 2-5

Franklin v. Massachusetts (1992)

One of several legal challenges to arise from the 1990 census, the case eventually decided as Franklin v. Massachusetts (505 U.S. 788), targeted the Census Bureau’s procedure of allocating overseas employees of the U.S. Department of Defense (DoD) to individual states for purposes of apportionment. The commonwealth of Massachusetts, and two of its registered voters, brought the suit, arguing that this allocation may have deprived Massachusetts of a congressional seat that was ultimately awarded to the state of Washington. The district court sided with Massachusetts, directing the Secretary of Commerce to remove the overseas employees from apportionment counts.

In July 1989, then-commerce secretary Robert Mosbacher decided to allocate overseas federal employees to their home states, citing growing sentiment in Congress (as evidenced by a number of introduced, but not passed, bills) in favor of their inclusion. Moreover, the Mosbacher decision was buoyed by DoD’s announced plans to poll its employees to determine “which State they considered their permanent home” (505 U.S. 788, §I). Ultimately, though, DoD scrapped the proposed survey, and still later DoD was unable to provide data on employees’ last 6 months of residence within the United States. Instead, the Census Bureau allocated DoD employees by the “home of record” indicated in their personnel files.

Sections I and II of Justice Sandra Day O’Connor’s opinion for a 5–4 court majority focused on the legal underpinnings of Massachusetts’ claim that the decision of the president and the commerce secretary to include overseas federal employees was inconsistent with the Administrative Protection Act. Section III of the O’Connor opinion spoke to Massachusetts’ standing to bring the case on constitutional grounds, and was only joined by three other justices; opinions filed by Justices John Paul Stevens and Antonin Scalia explained disagreements, in part or in whole, with the O’Connor opinion’s conclusions on the constitutional standing arguments.

Section IV of the O’Connor opinion, on the merits of a constitutional challenge, is the most relevant to discussion of census residence issues, and was joined by eight justices (with only Justice Scalia, having concluded that Massachusetts lacked standing, declining to join an argument on the merits). Referring to the Act of March 1, 1790, O’Connor wrote that “‘usual residence’ was the gloss given the constitutional phrase ‘in each State’ by the first enumeration Act and has been used by the Census Bureau ever since to allocate persons to their home states. … The term can mean more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place.” The opinion further noted cases in which “usual residence” had been broadly defined, such as the pre-1950 placement of college students in the state of their parents’ residence.

The opinion concluded that Mosbacher’s decision was “consonant with, though not dictated by, the text and history of the Constitution, that many federal employees temporarily stationed overseas had retained their ties to the States and could and should be counted toward their States’ representation in Congress.” Indeed, the allocation to the employees’ home states “actually promotes equality [of representation],” assuming that the employees have legitimately retained ties to their home states. Thus concluding that the Massachusetts case failed on its merits, the district court judgment was reversed and the Bureau’s inclusion of overseas federal employees in apportionment totals was upheld.

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