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High Court Rejects Sampling In Census
Ruling Has Political, Economic Impacts

By Joan Biskupic and Barbara Vobejda
Washington Post Staff Writers
Tuesday, January 26, 1999; Page A01

The Supreme Court yesterday rejected the federal government's plan for using a controversial counting method to estimate portions of the nation's population in the 2000 Census, ruling in a case that carries enormous political and economic consequences for communities around the country.

By a 5 to 4 vote, the justices said federal law prevents the Clinton administration from supplementing the Census Bureau's traditional procedure of trying to reach every household with statistical estimates that would be used to determine the nation's population and divide seats in Congress among the states.

But beyond the crucial apportionment purpose of the census, the court did not foreclose allowing "statistical sampling" for other important purposes, such as the drawing of political boundaries within each state and the allocation of federal funds for everything from road construction to housing for the poor. And the Clinton administration made clear yesterday it intends to move forward with plans to provide population estimates that states could use for everything other than determining how many congressional seats each state would receive.

Whether the Republican-controlled Congress will provide the money for two sets of population figures and whether states and localities would then be faced with dueling counts remained open questions yesterday. Several battles remain over census methods that could ultimately have a significant impact on state politics and social programs after the year 2000.

In hopes of getting more accurate population figures, the Census Bureau had wanted to combine the results of a traditional head count with a statistical "sample" that uses information drawn from a representative group to estimate the number and demographic characteristics of Americans who didn't respond to mailed questionnaires or who were missed in door-to-door surveys. The idea, similar to that used to conduct public opinion polls, was to get a more accurate fix on the nation's population at a time when increasingly larger numbers of people do not speak English, are not part of stable families or move frequently.

Those people most apt to be missed by traditional head counts are minorities and poor people who tend to vote Democratic. As a result, the stakes are high for politicians on both sides of the ledger as well as for racial minorities seeking equal representation through the next decade.

In her opinion for the court, Justice Sandra Day O'Connor relied on "over 200 years" of federal policy against "the use of statistical sampling where apportionment is concerned." She referred to the historical practice of census takers visiting houses and said a provision in federal law bans outright the use of sampling for congressional apportionment. In reconciling a 1976 amendment to the law permitting sampling in some situations, O'Connor said that provision "required that sampling be used for such purposes [other than apportionment] if feasible."

The Clinton administration, lawyers for state and local groups, minority organizations and other advocates of sampling immediately seized upon that part of the opinion.

"Congress now is faced with a dilemma," said TerriAnn Lowenthal, a consultant for urban and minority groups that favor sampling. "It has to determine whether it is not only willing, but possibly required, to fund a census that has one set of numbers for apportionment and another set for other purposes."

Yesterday's case, one of the most closely watched of the term, arises from a long-running debate over what to do about those households missed by the census. To address the problem, the Census Bureau's plan was to count at least 90 percent of the households in every census tract and then to extrapolate from a portion of those households the information needed to estimate population and characteristics for the remainder.

The GOP-led House, as well as a separate group of individuals from cities and states expected to "lose" relative population under the sampling method, challenged the plan as a violation of federal law and the Constitution's requirement that the government conduct an "actual enumeration" of people every 10 years. They said statistical adjustments invite political manipulation and that the better way to try to accurately count people is to improve the methods for contacting and questioning every household.

The whole battle has preoccupied Congress and tied up funding for the census that is to be taken next year. In the twin cases before the justices, the House and the group of 16 individuals from around the country had won in lower courts. But the Clinton administration appealed, contending that federal law permitted sampling for all census purposes, and as a threshold matter, asserted that neither group had legal "standing" to challenge the sampling policy.

The justices didn't say whether the House had a legitimate claim, but they said an Indiana resident had grounds to sue because Indiana could lose a seat under the census plan and that other challengers were from suburban counties that would see their political power diluted.

The court also did not address the constitutional merits of the argument, relying instead on the history of the federal statute involved, including changes made in 1976. O'Connor was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Dissenting justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- argued that the 1976 amendments specifically authorized the use of sampling for the purpose of determining how many House seats each state should receive. Michael Carvin, the lawyer who represented the individual challengers, said the paired cases of Department of Commerce v. U.S. House of Representatives and Clinton v. Glavin, "will prevent the Census bureau from creating statistical people" and prevent the distribution of "a lot more money and political power to urban areas than would have resulted from a traditional head count."

© Copyright 1999 The Washington Post Company

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