Judges Rule Against Use of Sampling for Census

In a major blow to the Clinton administration that could cost California as much as $1 billion in future funding, three federal judges ruled Monday that the Census Bureau may not use statistical sampling in the national head count in 2000.

The special panel of the federal appeals court here unanimously agreed with House Republicans, who filed a lawsuit to block the sampling plan for the population survey that is held every 10 years and determines how legislative districts are drawn and how federal dollars are doled out. The panel consisted of two Republicans and one Clinton appointee.

The city of Los Angeles and the California state Legislature were among those who had joined with the Census Bureau to defend sampling, which would allow the Census Bureau to estimate the population in some hard-to-count areas based on results from adjacent neighborhoods.

“It’s a setback for those of us who are fighting for California, that’s for sure,” Sen. Barbara Boxer (D-Calif.) said in a telephone interview. “It has a lot of ramifications for us in terms of federal funding--everything from transit and highway funding to education funding. There’s very little it doesn’t touch. . . . For California, there’s a lot at stake.”

In 1990, experts believe, the census missed 1.6% of the country’s population, including some 1 million Californians. That cost California an estimated $500 million in government grants and a new congressional seat. California Democrats said the stakes in the next census are roughly double the 1990 amount.

Census officials will ask the Justice Department to appeal the case to the Supreme Court. But the Census Bureau will scramble to prepare two plans for the count as it awaits a decision from the high court.

Sampling opponents urged the bureau to get ready for a person-by-person count, even if it adds $1 billion to the current $4-billion census price tag.

“What we need to do is plan to . . . take whatever steps are necessary to count everybody, because in America, everybody counts,” said Matthew Glavin, president of the Southeastern Legal Foundation, which has a parallel lawsuit pending in federal court. “The remedy for the undercount is to count better--not to guess.”

Congressional Democrats and other sampling supporters have said that it is impossible to count everyone in today’s America. Children, minorities and renters--particularly in rural areas--are often missed, they said. In 1990, the Census Bureau said that it missed 4.4% of the nation’s African Americans, 5% of its Latinos, 12.2% of the Native Americans living on reservations and 0.7% of whites.

Those figures provide the backdrop for the highly political debate over sampling: Democrats have accused Republicans of wanting to ignore the poor and minorities, a traditionally more liberal constituency, while Republicans have said that Democrats want to pump up population figures to create new congressional seats in neighborhoods friendly to them.

“The Clinton administration’s illegal and unconstitutional scheme to manipulate our census for the express purposes of political gain has been exposed,” House Speaker Newt Gingrich (R-Ga.) declared in a written statement. “Our founding fathers created, and we have continued, the tradition of a system of enumeration so that all Americans can receive their fair representation.”

House Minority Leader Richard A. Gephardt (D-Mo.) countered by accusing the GOP of trying to prevent an accurate count.

“If [sampling] is not implemented, nearly 6 million-plus people will disappear for all practical purposes,” Gephardt said in a statement. “Democrats want to ensure [that] all Americans are counted without regards to race, religion or place of residence.”

Rep. J. Dennis Hastert (R-Ill.), chairman of the House subcommittee with jurisdiction over the Census Bureau, said in a statement: “People must be counted, not guessed, as we have contended all along.”

The ruling comes after a year of squabbling over how to conduct the count. Three separate panels of statistical experts have endorsed sampling, but Republicans have insisted that the constitutional requirement for an “enumeration” means just counting and no extrapolation.

In its 76-page ruling, the three-judge panel focused on congressional statutes, not the Constitution.

“Sampling should be used in any and all areas in which that use is legal and/or constitutional, but it may not be used in the apportionment of representation among the states,” wrote U.S. District Judge Royce C. Lamberth, who was joined by District Judge Ricardo Urbina and Appeals Judge Douglas Ginsburg. “The use of statistical sampling to determine the population for purposes of the apportionment of representatives in Congress among the states violates the Census Act.”

Lamberth and Ginsburg are Republican appointees, and Urbina was appointed by President Clinton.

Commerce Department Secretary Bill Daley said in a statement that the administration is “obviously disappointed” with the ruling. But, he said, the Census Bureau would continue “two-track planning” so it would be ready to conduct the population survey with or without sampling.

James Holmes, acting director of the Census Bureau, said that he had not reviewed the ruling, but that sampling is crucial to his operation.

“The use of statistical methods is the only way that we can get a fair and accurate count,” Holmes said in an interview. “It’s the most cost-effective way of doing business.”

Congressional Democrats, Harvard Law Professor Laurence Tribe and Los Angeles City Attorney James K. Hahn pointed out that previous courts have supported sampling, leaving the Supreme Court a window to strike down the panel’s ruling by citing precedent.

“I am puzzled that this court is so out of step,” said Rep. Carolyn B. Maloney (D-N.Y.), co-chair of the Congressional Census Caucus. “It clearly shows that this must be resolved by the Supreme Court.”

Tribe, a prominent constitutional scholar, called the decision “only a temporary blow,” saying that neither the constitution nor the statutes “provide any basis for what the three-judge court ruled.”

“This is a terrible decision--it’s like the flat-earth society won,” said Hahn, citing the scientists who support sampling. “Obviously you can’t count everybody. We don’t blow a whistle and have everybody line up in the town square. That kind of rejection of the scientific method, I thought, went away in the 19th century--I can’t believe we’re still doing it in the dawn of the 21st century.”

Ultimately, the issue is more about politics than about science.

“The executive branch will always be in the control of a political faction--the Constitution means to keep politics out of the count,” said Rep. Christopher Cox (R-Newport Beach). “If politics could be left out of it, then perhaps statistical sampling would produce acceptable result.”

Rep. Dan Miller (R-Fla.) said: “The time has come for the Clinton administration to abandon their population polling plan. I have said all along that their plan is too complicated, unreliable and untrustworthy.”