- The Washington Times - Thursday, March 28, 2002

President Bush's top courtroom lawyer yesterday defended a disputed census policy of the Clinton administration and, in an extraordinary gesture, assured justices President Bush would carry out their order even though he was not named in the case.
"The president is willing to accept … this court's judgment," said Solicitor General Theodore Olson.
The case pits Utah and North Carolina in a battle over one additional seat in Congress. So far, that seat has been decided in North Carolina's favor by an imbalance of 857 persons under the "imputation" process. Utah claimed this process constituted "sampling," which the Supreme Court said in 1999 could not be used to apportion congressional seats.
Mr. Olson said the president would comply with a court request, but sidestepped the question when asked if he believed the president was bound by law to transmit a late recompilation of census figures if Commerce Secretary Donald L. Evans was ordered to prepare one.
"He's told you that's what he will do?" asked an apparently amazed Justice Antonin Scalia, who noted the White House sent Census 2000 numbers to Congress more than a year ago as the law required for timely reapportionment of the House.
"What if the next president comes along and says he will not accept this court's judgment?" Chief Justice William H. Rehnquist said in a question left unanswered.
Mr. Olson joined with "my colleague" Walter E. Dellinger III, solicitor general during the Clinton years in arguing that some techniques for estimating population were within the constitutional requirement that each census be done by "actual enumeration."
"Enumeration doesn't mean a particular method, a nose count," said Mr. Olson, who was reminded quickly by the chief justice that the Constitution stated "actual enumeration."
Mr. Olson's stance appeared at odds with the House Republicans who forced the 1999 Supreme Court 5-4 decision that scientific "sampling" was specifically illegal, although the court stopped short of defining the Constitution's requirement for "actual enumeration."
A 9-0 decision in the 1996 case of Wisconsin v. New York also barred use of "sampling" for retroactive adjustments of ethnic distribution within states.
Mr. Olson and Mr. Dellinger were adamant yesterday in maintaining that "sampling" was not "imputation," the term in question in a special hearing expedited to settle the appeal in time for November elections.
The process applies to homes with no response to a letter or six follow-ups. Census takers assume the same number of people live in the unresponsive home as do in the nearest residence whose occupants have filed a report. About 0.4 percent of the total, or 620,000 homes, were counted nationwide by that technique in the 2000 Census.
"This is 'sampling.' If you buy that distinction, the Census Bureau can get back to what they wanted to do in 1997," said Utah's attorney, Thomas R. Lee, of Provo.
"The word 'actual' is important," said Mr. Lee, who said John Adams and James Madison both used the phrase "actual enumeration," which had particular meaning in Colonial times.
"Are you saying there has to be something more than a little bit of guesswork at every house in the country?" Chief Justice Rehnquist asked Mr. Lee, who was making his first high-court argument. He is the son of the late Rex E. Lee, President Reagan's first solicitor general.
Mr. Lee said census takers must use information specific to the household, such as "proxy" reports from neighbors or mail carriers, but they apply "imputation" when no such information is available. He said the record shows 69 percent of such houses are vacant. The government disputed that, saying 98 percent were occupied.
Mr. Olson said the issue is clouded because some people refuse to return forms and others send paperwork indicating zero residents.
"Can they make the assumption that if a pizza man delivers pizza and it disappears, i.e., is eaten, can they assume there are people there?" Justice Stephen G. Breyer said.
As laughter rolled over the courtroom, Mr. Lee insisted census takers may not rely on pizza deliveries because some houses are business locations and others are seasonal or vacation homes whose occupants are counted elsewhere.
"There is no meaningful difference between imputation and the [sampling] method struck down" in the two earlier cases, said Mr. Lee, whose view was seconded by Justice Sandra Day O'Connor.
"It seems to amount to the practice we said couldn't be done but on a smaller scale," Justice O'Connor said. "They arbitrarily say we're going to impute from the data we have."
Several justices were doubtful that anything could be done since reapportionment already had been completed. That point was pressed by Mr. Dellinger, who said it would be unfair for North Carolina to lose a seat if Utah won the case and 620,000 households were assumed to have zero residents.
"We don't know who would have gained this seat if Utah brought the suit before the census was taken. … The unfairness is so great," Mr. Dellinger said.

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