CONGRESS HAS commanded the Census Bureau to give the president, tomorrow, its report of the 1980 population in each state. That report triggers a procedure that, if the numbers are as they now appear, will give additional seats in congress to 11 states and take seats away from 9. Will the Census Bureau report on time? Will the 16 seats actually shift, mostly from the Mideast and Northeast to the Sun Belt? Who knows?
The situation is a mess. Three months ago, a federal judge in Detroit ordered the Census Bureau not to report to the president until it adjusts its numbers to make up for the people, mostly minority residents, it missed during the county process. On Dec. 24, however, that order was overridden by Supreme Court Justice Potter Stewart, who said the bureau could go ahead with its report while the courts continue to consider the merits of adjustment.
That means the Census Bureau can report, right? Wrong. A day earlier, another federal judge -- this one is New York -- had ordered the bureau not to report. That order still stands. It is being appealed and may or may not be overturned by tomorrow. Meanwhile, the Census Bureau is being sued in more than a dozen other places on the same general grounds.
Behind the commotion is an argument over whether congressional apportionment should be based on the actual number of people counted -- our view -- or on an estimate, if the estimate is thought to reflect the true population more accurately than the official count. That possibility probably never occurred to the men who wrote both apportionment and the census into the Construction. Life was simpler then. Statisticians had not honed their estimating tools so well.
The question is a serious one, politically and constitutionally. New York City, for instance, will lose three or four House seats under the actual count but only two or three if the count is adjusted the way New York officials are telling the courts it should be. If the actual count is used and the city is right about the number of residents who were not counted, everyone in the state will be seriously underrepresented for the next decade.
The problem has been fuzzed by extraneous issues. There is the claim that federal funding as well as representation is involved; but there is no requirement that Congress use the same numbers in dividing up dollars that are used in dividing up representatives. There is the claim that illegal aliens should not be counted; but Congress abandoned the argument, for now, early this month. Then there is the claim that some states must have the numbers immediately because of the timing of their legislative sessions and elections. But surely those states -- Virginia, for one -- would be better off to figure some way around their peculiar problems than to use the wrong numbers in drawing new district liens.
The best way out of this judicial and political madhouse is for the Supreme Court to take the cases from Detroit and New York as quickly as it can. For if the judicial process runs its normal, leisurely pace, a cloud will hang over the prime purpose of the Census Bureau for much too long a time.