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  •   High Court Arguments in Census Cases Leave Little to Count On

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, December 1, 1998; Page A02

    After a vigorous session of Supreme Court arguments yesterday over how the Census Bureau will determine the U.S. population in the year 2000, this much is clear:

    Some of the justices are skeptical about the bureau's plan to estimate a portion of the population. Many question whether the House of Representatives has the right to sue over the plan. And most are unsure about the consequences to the states of so-called "statistical sampling," even if it is valid.

    Which is to say, not much is clear.

    Still, the arguments on the all-important census count were spirited and the high stakes were in view: Several members of Congress attended, every seat in the courtroom was filled, and the press section was packed with reporters from states whose political power and federal funding depend on the census methods.

    Whether the Census Bureau is allowed to estimate a portion of the population has crucial implications. It could change how the 435 seats in Congress are divided among the states, how local voting districts are drawn within the states, and how the federal government channels $180 billion in grants, for programs covering everything from highways and housing to education, health services and crime-fighting.

    But the bureau says it is impossible to locate and count every single person. Some people do not fill out questionnaires or answer the door when a census-taker calls. Some people are homeless or on the move. And poor people and minorities tend to get missed the most, studies show. So this time, the bureau wants to use a method of statistical sampling in addition to its traditional head count.

    The Republican-led House and a group of individual taxpayers challenging the plan say it violates the Constitution's requirement of an "actual enumeration" every 10 years, as well as federal census law. They also contend that the sampling method is open to political manipulation and would artificially inflate traditionally Democratic strongholds at the expense of Republican locales.

    Defending the administration's plan, Solicitor General Seth P. Waxman said the sampling method is the best way to determine the number of people in each state. It is "in effect, a quality check" on the head count done April 1, 2000, he said. Waxman said the method has been endorsed by the nation's leading scientists.

    The 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 the population and characteristics of those missed.

    Chief Justice William H. Rehnquist was among the most dubious of the methods Waxman described, asking how authorities could know how many people had been missed if they were not counted in the first place.

    Even if the method gave a more accurate count, Justice Sandra Day O'Connor questioned its constitutionality. "Most people would think an 'actual enumeration' means a count," she said. "How do you get around that?"

    Waxman said the term "actual enumeration" merely meant that the government had to ascertain the total number of people in the country, not rely on guesswork or incomplete surveys by the states. He said the Constitution's framers envisioned a good-faith effort to calculate the population and, by way of example, said that if someone had only a limited amount of time to count all the people at an Orioles game, some sort of educated estimate would be used to get the job done.

    Arguing on behalf of the House of Representatives, Maureen E. Mahoney mostly faced queries about how such a politically tinged battle ended up on the court's doorstep. She told the justices that Congress and the administration were locked in an "intractable" fight that only the justices could resolve.

    But the justices suggested that the House had not shown that it would be hurt by the bureau's proposed census estimates and therefore lacked legal "standing" to sue the administration. Justices David H. Souter and Antonin Scalia suggested that if the justices agreed to resolve the matter, it could open the courthouse door to other political fights.

    Scalia asked whether the two branches shouldn't just "duke it out" and said, "I don't see how you solve these inter-branch disputes by dragging in a third branch."

    Justices John Paul Stevens and Stephen G. Breyer challenged Mahoney's assertion that the Constitution does not allow authorities to estimate the number of people in an apartment building simply on the basis of assumptions they make about the number of people living there.

    If people do not respond, must census-takers write down "zero," Stevens asked? "Yes," said Mahoney. "Even if the lights go on and off in the evening?" added Breyer.

    The method is also being challenged by a group of individuals and local governments. Michael A. Carvin said his clients would lose political power in state redistricting and qualify for less federal money based on population figures.

    The justices are likely to rule next spring in the cases of U.S. Department of Commerce v. U.S. House of Representatives and Clinton v. Glavin.

    © Copyright 1998 The Washington Post Company

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