Division of Representation, Funds at Stake in Census Feud
By Joan Biskupic
Dennis Lopez still remembers the 1970 census. He was in the sixth grade, and the teacher at his San Diego elementary school urged all the Mexican American children to have their parents fill out the government forms.
"They wanted us to be counted, but I remember as a kid being so suspicious," said Lopez. He was jaded, he said, after constantly being interrogated by immigration agents who suspected his family was here illegally: "I was born in San Diego, but we'd be stopped while riding in the car and asked a lot of questions, like 'Who's the governor of California?' simply because we were of Mexican descent."
Today, Lopez is among those leading a nationwide effort to help ensure that Hispanics stand up and be counted as part of the 2000 census. But it is the kind of anxiety he had as a boy that Census Bureau officials say causes many poor people and minorities to refuse to fill out the decennial questionnaires.
As a result, the bureau plans to combine a traditional head count with a method of statistical sampling. And backed by groups such as the Mexican American Legal Defense and Education Fund, where Lopez works, officials said it would make the census more accurate overall and compensate for the disproportionate undercounts of racial and ethnic minorities.
The Republican-led House of Representatives and a group of individuals in states that might lose seats under the bureau plan sued the administration to stop it. On Monday, in one of the most closely watched cases of the Supreme Court term, the justices will hear the administration's defense of its plan.
The challengers, who prevailed in lower courts, say the Census Bureau's method not only invites political manipulation but violates federal law and the Constitution.
"What is at stake here is our heritage," said Matthew J. Glavin, one of 16 individuals who have sued the government to block the census estimations. "We are a representative democracy . . . and the census [that determines representation] is supposed to be based on real people, not virtual people."
The case goes to the foundation of how the nation counts its people, for the distribution of seats in Congress and the 50 statehouses, as well as the annual allocation of $180 billion in federal funds, covering spending from highway construction to housing programs for the homeless, programs for juvenile delinquents and services for the aging. "It's very important to get the message out that resources come back to the community" based on how many people are counted, said Lopez.
The case pits Republicans against Democrats, cities against suburban areas and liberal activists against conservatives. The "friend of the court" briefs submitted on behalf of dozens of public interest groups recall the civil rights fights of the 1960s and '70s at the high court.
A ruling from the justices forbidding statistical sampling "threatens to result in a decade of unequal representation" for minority citizens, asserts the NAACP Legal Defense and Educational Fund.
The numbers from the 2000 census will determine for the next 10 years not only how many seats each state has in Congress but also will indicate where the lines are drawn. Because states rely on the federal numbers for local redistricting, the census results will affect local representation. Federal funds channeled through the states and cities are based on the number of people in an area. And beyond all these public uses, businesses and a host of organizations rely on census data to determine where to build plants and sell their products.
Representing the administration, Solicitor General Seth P. Waxman said the Census Bureau has long used estimates and alternatives to actual head counts, simply because a precise measure is elusive.
"The choice facing the Census Bureau . . . concerns the appropriate method of estimating the population, not whether to estimate at all," he insisted. Waxman stressed that the Constitution gives Congress great discretion in conducting the census and that Congress, through the Census Act, has turned over broad authority to the agency. And whether the standard is federal law or the Constitution, he said, statistical sampling is permitted.
The Census Bureau's plan is 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 House and the others challenging the statistical method contend that the better way to reach more people is to improve the methods for contacting and questioning every household not to estimate the number that were missed. And they say that if the population of inner-city neighborhoods is statistically inflated, the relative population for outlying areas will drop, diminishing the political power of people who live there. Some experts believe that in the areas where the population would be boosted, people are more apt to vote Democratic.
Joining the case brought by Glavin, president of the Southeastern Legal Foundation in Atlanta, are 15 other citizens in Connecticut, Massachusetts, Minnesota, Missouri, Pennsylvania and Wisconsin, all of which could lose seats in the House if the Census Bureau's plan is allowed.
More to the legal point, the challengers maintain that the Constitution and federal law require an actual counting of people.
"Every decennial census since 1790 has resulted in an undercount that affects some groups more than others," said lawyer Maureen E. Mahoney, who will argue Monday for the House. "The framers understood the difference between counting and estimating," she said.
In making their case, the challengers note that the Constitution's census clause states that the federal government will conduct an "actual Enumeration" of the nation's population every 10 years.
Waxman counters that the word "enumeration" refers only to the act of ascertaining the number of something and is not a mandate to specifically count each person, one by one.
The other basis for the dispute is the Census Act, which says in one provision that the census may include "the use of sampling procedures and special surveys," but in another provision says, "except for the determination of population for purposes of apportionment of Representatives in Congress . . . the Secretary [of Commerce] shall, if he considers it feasible, authorize the use of the statistical method known as 'sampling.' "
Two lower courts have interpreted that as forbidding statistical sampling for purposes of apportioning congressional seats. (Currently, only one census is conducted, so the method used for apportionment provides numbers for other purposes.) The Clinton administration contends that the first provision of the Census Act gives the bureau broad authority on methods used, and that the second provision merely makes apportionment an exception to a mandate that sampling be used for other purposes and that such an exception is not a prohibition.
As an important threshold matter, the justices will decide whether the House and the individuals led by Glavin and represented Monday by lawyer Michael A. Carvin have legal "standing" to challenge the sampling plan. Lower courts ruled that both groups showed they could be hurt by power shifts if congressional seats are reapportioned based on a statistical extrapolation.
But the Clinton administration has told the justices that although the use of sampling might affect some states, there would be no significant impact on most of the states and the House as an institution. Therefore, sampling opponents do not have a proper claim. On that basis, the administration has asked the high court to throw out the cases, Department of Commerce v. U.S. House of Representatives and Clinton v. Glavin, without even reaching the merits of census law.
© Copyright 1998 The Washington Post Company