Census Sampling Issue Goes to Supreme Court

Marking a new decade and a new century, the Census Bureau must determine the number of people living in the United States by April Fools’ Day of 2000. But just how it will do that remains unresolved with just 16 months to go.

In this highly partisan era, virtually all important decisions in the nation’s capital tend to divide along party lines, and Census 2000 has proved to be no exception.

The Republican Congress and the Democratic administration have been fighting for more than two years over how to measure America’s population, and the dispute goes before the Supreme Court today.

Under the current plan, the bureau will try to learn who lives in 90% of the households in each census tract, either by mail or by knocking on doors. Then, a few weeks later, it will use this sample to infer who lives in the rest. Enumerators will revisit 750,000 scientifically chosen households nationwide, less than 1% of the total population, and check the new data against what was initially gathered. The data from the second sampling will be used to adjust all the other numbers.

The Republicans are openly distrustful of the sampling plan and have tried to block it. The government has a duty to count the population, they say, not estimate it.

“They say, ‘Trust us.’ Well, remember this is the Clinton administration, not the Carter administration,” said Chip Walker, a Republican staffer for the House subcommittee on the census. In 1997, Congress passed a law that prohibited sampling or “any statistical adjustment” in the upcoming census, but President Clinton vetoed it.

The Democrats accuse the Republicans of resisting sampling for political reasons. Those most likely to be missed in the count are minorities and the poor--groups that tend to vote Democratic.

“When you strip away their arguments, the only thing they have left is the fear it [a revamped census] will turn up more Democrats,” said Brian S. Currey, a lawyer for the city of Los Angeles, which has joined the administration’s defense of sampling.

The 1990 census counted 3,485,398 people in the city. A “post-enumeration survey,” the sample recount after the 1990 census, estimated 3.8% were missed in Los Angeles. If so, the adjusted city population would have been 3,624,206. Because the lower figure was used, the city has lost $12 million per year in government funds, officials say. Los Angeles County, they say, has lost $20 million because of that undercount.

In 1991, in the Bush administration, Commerce Secretary Robert A. Mosbacher found statisticians split over the merits of the adjusted numbers, and he refused to use them. The sampling techniques “depend heavily on assumptions,” he said, and could “open the door to political tampering with the census.”

Lawyers for New York and Los Angeles went to court to challenge Mosbacher’s decision, but the Supreme Court upheld it in 1996.

Now, the same issue is back before the high court, although the parties are somewhat rearranged. The current Commerce secretary, Bill Daley, supports the plan for sampling and adjustments, but the current Congress opposes it. Lawyers for the city and county of Los Angeles, along with the California Legislature, joined the case to support the sampling plan.

If the next census is not adjusted, “the city of Los Angeles will suffer even greater harm than it did as a result of the 1990 census because the percentage of traditionally underrepresented groups has increased,” Assistant City Atty. Jessica F. Heinz said in an affidavit filed with the court. She estimated “the city will lose approximately $180 million for the decade” in funds for highways, housing, libraries, crime prevention and community development.

The legal dispute centers on a single, ambiguous line in the 1976 amendments to the Census Act, not on the constitutional phrase “actual enumeration.” Lawyers on both sides avoided that term and instead focused on what the law says about conducting the census.

The key 1976 provision says: “Except for the determination of population for purposes of apportionment of Representatives in Congress among the several states, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as ‘sampling’ in carrying out the provisions of this title.”

The Republicans say this sentence clearly forbids the use of sampling to compile the basic 10-year population tallies.

In February, outgoing House Speaker Newt Gingrich (R-Ga.) and his Republican majority filed a lawsuit challenging the Clinton administration’s use of sampling as a violation of the 1976 law, and two lower courts have agreed with his reading of the law.

A three-judge federal appeals panel in August ruled that the administration could not use sampling for the state-by-state population totals. In explaining the ruling, U.S. District Judge Royce C. Lamberth wrote, “Consider the directive, ‘Except for my grandmother’s wedding dress, you shall take the contents of my closet to the cleaners.’ ” Certainly anyone who issued that directive would be upset to learn it was read as authorizing the taking of the wedding dress to the cleaners, the judge wrote.

The Democrats say Congress in 1976 intended to encourage greater use of sampling. The amendment “simply makes clear that the Secretary is not required to use sampling in determining the state-level population figures,” Clinton administration lawyers say.

The merits of the dispute aside, U.S. Solicitor General Seth Waxman, representing the administration, says lawmakers do not have legal standing to challenge the government’s interpretation of the law. Their only recourse is to pass a new law, he argues. But the Republicans say they cannot do that because Clinton will veto it.

The justices will hear the competing arguments today in U.S. Department of Commerce vs. U.S. House of Representatives, 98-404. A ruling can be expected within several months.

Regardless of the outcome, the high court’s decision will not necessarily resolve the matter.

If the court sides with the administration and says the sampling may proceed, the Republicans might refuse to pass a spending bill next summer to fund the census. On the other hand, if the court sides with the Republicans, the administration says, it will move ahead anyway to compile a statistically adjusted census. These figures can be used for distributing $180 billion per year in federal funds that go to the states, counties and cities.

“We could lose this case and still win,” said Currey, the Los Angeles lawyer, because federal funding is more important than the allocation of a few seats in Congress. “On the other hand, we could win and still lose,” if the GOP Congress blocks the adjusted census next year.