All States Have a Large Stake in 1990 National Nose Counting

This much is certain: When the Census Bureau finishes calculating the U.S. population after the 1990 count, California will have more members of Congress and more electoral votes than any state in history.

But how many more is becoming hotly disputed, even before the bureau begins the $2.6-billion tabulation. Under the most recent projections, California’s population will exceed 29 million in 1990. That would give the state five, and possibly six, new seats in Congress, swelling its delegation at least to 50. But legal and legislative challenges to census procedures are pending that could scramble those results--and recalibrate other states’ congressional strength as well.

Later this month, a U.S. District Court in Pennsylvania is expected to rule on a case brought by a coalition of plaintiffs; more than three dozen Eastern and Midwestern congressmen are challenging the inclusion of illegal aliens in the population figures used to apportion congressional seats--a suit that could cost California at least one, and possibly more, new seats in 1990. Meanwhile, a coalition of large states and groups representing blacks and Latinos have asked a federal court in New York to require the Census Bureau to use a new technique for counting minorities that could substantially increase the population totals for heavily urbanized states. That suit, if successful, might mean more representation for California.

Behind the legal arguments in this little-noticed battle are stark realities of economic and political power. For all states, the stakes in the decennial population count are enormous. Not only are the numbers used to apportion strength in the House of Representatives and the electoral college--and to determine representation within the state legislatures--but dozens of federal aid programs are keyed to population figures.

Moreover, reapportionment has plainly partisan dimensions. All early projections indicate the 1990 numbers will reconfirm the powerful population shift toward the South and West that has fortified the Republican presidential majority over the past 20 years. New York, having lost five congressional seats in 1980, is expected to surrender another three in 1990; so might Pennsylvania, after losing two in 1980. Illinois, Michigan and Ohio--states vital, though not lately helpful, to Democratic presidential hopes--could each lose two seats. In contrast, George Bush carried each of the seven states, all in the South or West, expected to gain seats in 1990.

After the 1980 count, the Census Bureau estimated that a little more than 2 million illegal aliens were included, half of them in California, with New York and Texas each accounting for about 10%. Working with those numbers, the Congressional Research Service calculated that inclusion of illegals gave both California and New York one additional seat. Indiana and Georgia each lost one seat. The Census Bureau expects to count roughly the same number of illegal aliens next year; according to recent CRS calculations, their inclusion may mean one more seat for California and one fewer for Pennsylvania. If the census includes 4 million illegals--a number on the outside edge of possibility--California could gain as many as three additional seats, according to the plaintiffs in the pending lawsuit.

Within this political context the legal battle over illegal aliens has unfolded in a Pennsylvania U.S. District Court. The plaintiffs, led by Rep. Thomas J. Ridge (R-Pa.), argue that it is unconstitutional to include illegal aliens in the population counts used in the 1990 reapportionment. The government maintains that Congress never intended to exclude illegal aliens from the count. Both the 14th Amendment and the constitutional language it superseded say that apportionment shall be determined by the number of “persons” in each state. While drafting the 14th Amendment, Congress expressly rejected proposals to base reapportionment on voters or even citizens, noted TerriAnn Lowenthal, a staff member at the House subcommittee that oversees the census. “One’s legal status in this country has never been a factor in whether you are counted in the census,” she said.

But Robert L. Byer, a Pittsburgh attorney representing the nearly 50 plaintiffs, argues that the word “persons” in the 14th Amendment isn’t as precise as the government maintains: For purposes of the amendments’s due-process clause, the courts have defined corporations as persons, “but nobody has argued they are persons for (purposes of) the apportionment clause.”

Most lawyers believe these arguments face a skeptical audience. In 1980, a federal district court rejected a similar challenge. Though the suit was dismissed on grounds that the plaintiffs lacked the legal standing to sue, the district court added sharply, “We see little on which to base a conclusion that illegal aliens should now be excluded.” Generally courts have been extremely reluctant to order census method changes.

That same hurdle confronts the coalition of minority groups and major cities, including Los Angeles and New York, challenging the bureau’s procedures for counting minorities. After the 1980 census, cities and other groups filed more than 50 cases alleging an undercount; the Census Bureau won all of them. Yet many of the same groups have again asked a federal court in New York to require that the bureau statistically inflate the number of inner-city residents because they are undercounted by usual survey techniques. The suit was triggered when the Commerce Department, in late 1987, ordered the Census Bureau not to make such an adjustment--a decision critics saw as motivated by a desire to curtail the count in predominantly Democratic city centers.

No one disputes that a substantial number of minorities were missed in the last count. Overall, the bureau estimates that it overlooked about 1.4% of the population in 1980--but the figure for blacks was much larger, about 5.9%. But, just as in the case regarding illegal aliens, the government maintains it cannot estimate the undercount precisely enough to revise the state population figures accurately.

These disputes are now historic. In the 1920s and early 1930s, representatives from rural states, fearful of the nation’s rapid urbanization, accused the census of overstating the size of the cities. In those days Eastern states such as Pennsylvania, bursting with European immigrants who mined the coal and forged the steel, defended the inclusion of aliens in the count. Now it is California, ascending on another wave of immigration, that wants inclusive counting while Pennsylvania fights the rear-guard action. But legal maneuvers do not turn demographic tides; just ask the furious, frightened farm states if litigation did them any good half a century ago.