- The Washington Times - Monday, April 8, 2002

Census 2000, embroiled as it was in 1999 U.S. Supreme Court litigation before the first person was ever counted, reveals several important facts about the makeup of our nation, starting with how we count our people. The high court agreed that federal statutes correctly banned the use of the flawed method known as statistical sampling for determining congressional apportionment. That same issue is back again, and this time with practical political implications.
This week, the high court again takes up the issue in a dispute between Utah and North Carolina that will determine whether a Republican district survives in Utah or a Democratic district is created in North Carolina. The subject of the dispute is a statistical method known as imputation, which "added" 1.2 million people to the final Census 2000 count.
The actual head count, subjected to a battering by Clinton appointees who supported the use of statistical sampling to "account for" the 1.8 percent undercount in the 1990 Census, was nevertheless upheld as the only acceptable method for determining how many representatives each state receives as the U.S. House is apportioned among the states. As the Southeastern Legal Foundation successfully argued before the high court in 1999, existing federal law prohibiting anything short of an actual head count defies the intention of the U.S. Constitution, which demands an actual head count "by the whole number of persons in each state."
Unfortunately, the Census Bureau, which conducted the most accurate actual head count in U.S. history in 2000, has adopted an even more insidious statistical practice to "account for" the U.S. population. The current case, Utah vs. Evans, challenges the practice of so-called imputation, the methodology by which the Census Bureau deals with mailed census questionnaires that are not returned and hypothetical people, whose existence cannot be verified after no fewer than six follow-up visits by enumerators.
Imputation has two steps. The enumerator who has been unable to find or actually count anyone at an address makes a decision about whether a dwelling is vacant or occupied and, if occupied, how many people he or she thinks lives there. This process is as far from the constitutional standard of actual enumeration as could be imagined. The Census Bureau imputed or, more accurately, invented 1.2 million "virtual" people to occupy the dwellings in which no enumerator could actually identify a real person.
In the case of Utah and North Carolina, imputation was enough to cause North Carolina to gain an additional seat in the House of Representatives at Utah's expense, as well as additional clout in the Electoral College. With political control of the House up for grabs, and Utah's vested interest in maximizing its representation in Congress, the Supreme Court will further define what is constitutional in terms of how we count people in the decennial Census.
The 1999 Supreme Court decision, which was limited in scope to the discrete question of statistical sampling as proposed by the Clinton administration, answered several key questions which may now be further addressed by the high court. Due to complex legal rules governing who and when lawsuits challenging congressional action may be brought, the Utah case is a necessary next step in the process. We agree with Justice Antonin Scalia in his concurring 1999 opinion that the law is clear in "forbidding the use of estimation techniques in conducting the apportionment census."
North Carolina's gain at Utah's expense is the practical "rubber meets the road" implication of any form of statistical manipulation of the census figures. One state will inevitably gain and another state lose, based on the arbitrary and subjective nature of anything other than an actual head count. The broader issue is the integrity of the U.S. Constitution's mandate to execute the decennial census in a way that ensures that "whole persons" are counted only, a reference in the 14th Amendment to the terrible days in our history when slaves were counted as three-fifths of a person.
In 1999, many across the nation rallied behind the cry, "Count everybody because everybody counts!" According to our Constitution, it is enough to actually count and not estimate who and where our people live. The integrity of representative democracy rests on this principle.

Phil Kent is president and Lynn Hogue is chairman of the Legal Advisory Board of the Southeastern Legal Foundation, a public-interest law firm participating in the Utah case as a friend of the court.

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