- The Washington Times - Wednesday, January 23, 2002

The Supreme Court agreed yesterday to decide a high-stakes political battle that hinges on whether census-takers may ever substitute statistics for the actual nose counts the Constitution requires.

Shortly before the 2000 Census, the justices decided 5-4 that Congress had outlawed "sampling," but the divided court stopped short of deciding whether statistical techniques violate the constitutional requirement that "actual enumeration" be used to apportion Congress's 435 seats.

The appeal accepted yesterday will resolve whether Utah may add a fourth House seat to its congressional delegation, thus denying a 13th seat to North Carolina.

Lawyers and court officials yesterday were discussing efforts to put the case on a fast track for decision by July, in plenty of time for November elections. Otherwise it would be left until October, along with four other appeals accepted yesterday.

"I think it absolutely has to be heard this term," said Thomas R. Lee, the Brigham Young University law professor who represents Utah in the uphill battle to increase its House voting strength by one-third.

Utah seeks to overturn a ruling by a special three-judge federal district court whose 2-1 opinion gave North Carolina the benefit of an 857-person imbalance based on a technique called "imputation." The process uses nose counts from nearby houses to estimate how many people live in houses whose residents do not respond.

The imputation process accounted for 0.4 percent of persons counted in the 2000 Census. If the court decides "imputation" is just another word for "sampling" and therefore illegal constitutional issues come into play.

Mr. Lee called the lower court ruling for North Carolina absurd, as it permits use of an admittedly unscientific estimating method in a process that forbids scientific estimating methods.

"In order to uphold this statute, you'd have to think Congress had a relatively perverse intention in mind," Mr. Lee said yesterday.

North Carolina Attorney General Roy Cooper disagreed and said he expects the Supreme Court to uphold North Carolina's view.

"In the hope that one would finally stick, Utah has continued to fling every possible legal theory against the wall. So far, they've all slid to the floor, and we believe the U.S. Supreme Court will not allow this theory to hold up, either," Mr. Cooper said.

Despite that colorful portrayal by Mr. Cooper, who has Justice Department backing, U.S. Solicitor General Theodore Olson seemed to concede an apparent contradiction in his brief asking the high court not to hear the case.

He said the process may be used precisely because it is not scientific, and said that decision must be left solely to Commerce Secretary Don Evans.

"Because [the method] is not, and was not in 1957, regarded within the statistical community as a form of 'sampling,' the determination whether imputation shares practical shortcomings similar to those of sampling is entrusted to the secretary, not to the courts," Mr. Olson wrote.

In the absence of specific legislation to the contrary, federal courts defer to federal agency judgment under a 1984 Supreme Court decision.

Because of the court Rule 18.12, under which it took the case, lawyers first must argue whether the justices even have jurisdiction, a hurdle usually resolved in conference before they agree to hear the case. It was the first time the court applied that rule in more than six years.

Mr. Olson's assertions may take on additional meaning when measured against the politics involved in helping North Carolina's Democratic governor win an additional seat in Congress over protests by Utah's Republican administration.

The 1999 decision was sought by the GOP leadership in Congress, aided by the Southeastern Legal Foundation.

That 1999 ruling, written by Justice Sandra Day O'Connor, said the Census Act barred use of statistical sampling either to substitute for traditional counts or to supplement actual enumeration when the results are to be used in reapportioning Congress.

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