- The Washington Times - Wednesday, February 18, 2009

The largest civilian government undertaking in our national experience is set again for 2010 - and like the 2000 Census, it’s a highly charged political target. However, the U.S. Supreme Court has given a clear road map for conducting the Census to avoid political manipulation - and the Obama administration should pay attention.

The decennial Census, which is mandated by the U.S. Constitution, serves two primary functions. First, it determines how many people live in the United States and where they live, which tells us how to apportion representation in the U.S. House of Representatives. Some states lose congressional districts; some states gain.

Second, the Census helps Congress and the executive departments decide where to spend billions of dollars in government largess, based on population trends. While this is not strictly “constitutional” in nature, it is important - particularly in today’s economy.

In the late 1990s, the Clinton administration authorized the Census Bureau, which is a part of the U.S. Commerce Department, to use a highly controversial method known as “statistical sampling” rather than the “actual enumeration” head count demanded by the Constitution. The Clinton plan was to conduct a traditional head count of 90 percent of the U.S. population, and to statistically “estimate” the remaining 10 percent. That’s an intentional undercount of 30 million people.

The overriding problem with statistical sampling, apart from the inaccuracies it creates at the critical Census block and tract levels (neighborhoods and communities), is that it gives statisticians appointed by politicians the power to determine final congressional apportionment numbers. Imagine 30 million “virtual” people; where they live and how many there are would be at the mercy of political statisticians.

That’s precisely why the U.S. Supreme Court held in our 1999 case that the Census must be conducted as an “actual enumeration, counting the whole number of persons in each state,” according to the U.S. Constitution. There is no room for statistical manipulation in this standard.

Based on recent efforts by the Obama administration to bring control of the Census under the White House rather than the Commerce Department, the manner of the 10-year Census is at stake once again. The issue figured in New Hampshire Republican Sen. Judd Gregg’s withdrawal as the Obama administration’s prospective commerce secretary.

U.S. Supreme Court Justice Antonin Scalia wrote in the 1999 Census decision, “For reasons of text and tradition, fully compatible with a constitutional purpose that is entirely sensible, a strong case can be made that an apportionment census conducted with the use of ‘sampling techniques’ is not the ‘actual Enumeration’ that the Constitution requires.”

Nevertheless, then-Commerce Secretary William Daley asserted that, because the court specifically rejected statistical sampling for congressional apportionment, sampling could be used for “other purposes.” Enter Census 2010 and the revived (and unconstitutional) effort by some in the new administration to reinsert sampling into the Census equation.

It has never been more important that the Census be conducted properly and that the final count be as accurate as possible - without statistics. The allocation of now-trillions of dollars in taxpayer funds across the 50 states - and the election of those in Congress who make those expenditures - is now on the table. Will it take another lawsuit, and yet another trip to the United States Supreme Court, to ensure the Census is conducted according to the Constitution?

Shannon L. Goessling is executive director and chief legal counsel for Southeastern Legal Foundation, which won a 1999 U.S. Supreme Court decision protecting the Census from statistical sampling.

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