Census Fight Moves Into Federal Court
By Bill Miller
Washington Post Staff Writer
Friday, June 12 1998; Page A25 A long-standing battle over how to conduct the 2000 census shifted yesterday to a federal court here, where a special three-judge panel heard arguments about whether the Census Bureau can use statistical sampling in its count.
The legal debate harkens back to the days of James Madison and other framers of the Constitution who called for an "actual enumeration" of Americans to be conducted every 10 years. The judges were asked to decide if that language means the Census Bureau must continue to rely upon head counts, even though its tallies traditionally have missed millions of Americans.
Underlying the legal posturing is a huge political struggle between House Republicans, who favor the status quo, and the Clinton administration and House Democrats, who want to use sampling to supplement door-to-door head counts. The fight has political and economic consequences: Census figures are used to draw House districts and to distribute federal and state tax dollars.
Depending on how political boundaries are reconfigured, the makeup of the House could change significantly after the elections in 2002.
Advocates of sampling, including the National Academy of Sciences, contend it is the most effective way to avoid the problems of the 1990 census, in which the Census Bureau says it missed about 8.4 million people and double-counted 4.4 million more. Those who were missed were disproportionately racial and ethnic minorities living in cities -- people who tend to vote Democratic.
House Republicans, led by Speaker Newt Gingrich (Ga.), filed the lawsuit, House of Representatives v. United States Department of Commerce, et al, in hopes of preventing the Clinton administration from using the sampling approach. Congress provided for the case to be heard by a special panel of judges on a fast-track basis.
The three judges who heard arguments yesterday -- Douglas H. Ginsburg of the U.S. Court of Appeals and Royce C. Lamberth and Ricardo M. Urbina, both of U.S. District Court -- did not set a timetable for their decision. Lawyers said they hoped for a ruling by mid-summer so that the losing side can ask the Supreme Court to hear the case and seek a final outcome by early next year.
While the legal combat takes place, the Census Bureau has been ordered by Congress to prepare for 2000 by readying two plans: one using the traditional head count and one factoring in the sampling method. Census officials have said they must know by March which approach will be used or they cannot guarantee they will be able to do the project on time.
Nearly 200 people showed up for yesterday's 2 1/2-hour hearing, including at least two dozen lawyers who represent a host of players involved in the litigation.
The Clinton administration drew support from the city of Los Angeles and more than 20 other city, county and state governments; the California state legislature; a contingent of House members led by Minority Leader Richard A. Gephardt (D-Mo.); and a coalition of minority groups. Lawyers for those parties told the court that the Census Bureau has an obligation to use the best scientific methods available.
Maureen E. Mahoney, representing the House Republicans, said the sampling approach is unconstitutional. She questioned whether sampling would yield a more accurate count, but said accuracy wasn't the issue.
The core of the case, Mahoney said, rests in the words of Article I, Section 2 of the Constitution, which call for an "actual enumeration." Starting with the first census, in 1790, that has meant a counting of people, she said.
"The word `enumerate,' in every dictionary at the time, said to count one by one or reckon singularly," Mahoney said. The only way to legally include sampling, she said, is by a constitutional amendment.
Justice Department lawyer Thomas W. Millet asked the judges to dismiss the lawsuit, saying the House has no legal standing and, even if it does, the case's filing is premature.
Millet said the Constitution and Census Act give Congress the authority to determine how the census is conducted. He said the court improperly was being asked to settle the matter because the House, Senate and administration are at odds.
He noted that sampling techniques were not available in James Madison's day, and said the framers' main interest was accuracy. The constitutional clause "doesn't say anything about computers," Millet added, "but that doesn't mean the Census Bureau can't use computers to conduct the census."
Judges Ginsburg and Lamberth, who were appointed to the bench by President Ronald Reagan, expressed concern about the potential to manipulate the sampling methods for political purposes, a problem they said the framers of the Constitution wanted to avoid.
Urbina, a Clinton appointee, brought out an assertion by the Census Bureau that it has built-in safeguards against such tinkering.
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