The Constitution does not mandate that Census numbers be used for redistricting. However, the New York Times reports that "all 50 states have laws requiring their legislatures to use federal census figures in drawing district lines." Moreover, Federal Court review mitigates flagrant political use of the redistricting process and would probably give little weight to the use of population figures other than Census Bureau numbers. However, it is conceivable and probably legal for the Census Department to create an alternate population estimate through sampling for purposes other than apportionment. It would be interesting if Courts would permit the use of these new population estimates for redistricting.
The Supreme Court left the real question unanswered. Is the use of sampling for reapportionment itself Constitutional? Four judges said it was unconstitutional even if directed by Congress. Four argued that the Constitutional empowerment to specify the "manner" of the enumeration is so broad that the manner does not even have to use enumeration. Slim majorities that stand in the way of Congressional prerogatives many times do not survive. If the Democrats can replace one or more judges before 2010 and if Congressional Democrats return to power, do not be surprised to see sampling.
[1] Concurring with O'Connor where Rehnquist, Scalia, Kennedy, and Thomas. Dissenting were Breyer, Stevens, Souter, and Ginsberg.
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