[CTPP] NEWS ALERT

December 4, 1998 Supreme Court Weighs Legal, Constitutional Issues in Census Sampling Cases Justices Question Role of Judiciary in Settling Sampling Dispute Monitoring Board Reviews Use of Administrative Records in Census The United States Supreme Court heard oral arguments November 30 in two lawsuits challenging the use of sampling and statistical estimation in the census. The Justices heard presentations from Solicitor General Seth Waxman, arguing on behalf of the Administration; Maureen Mahoney, with the firm of Latham & Watkins, representing the U.S. House of Representatives; and Michael Carvin, with the firm of Cooper, Carvin, & Rosenthal, representing Matthew Glavin and other private plaintiffs. The Court had agreed to consider both cases after two separate three-judge district court panels ruled earlier this year that the Census Act prohibits sampling to derive the population counts used for congressional re-apportionment. Some highlights of the hearing in the cases of U.S. House of Representatives v. U.S. Department of Commerce and Glavin v. Clinton: * Several Justices were skeptical about the legal authority of the House of Representatives to sue the Executive branch to force a particular action that Congress could not bring about by enacting a law. Justice Scalia said that the Judicial branch should not be asked to resolve a political dispute between the other two branches. He prompted laughter by suggesting that Congress could threaten to withhold funds for the census or even White House operations until the Administration agreed with its position on sampling. * There was less discussion about the legal standing of individuals and counties to file suit in the Glavin case. However, there was some confusion about whether these private parties must show that their States were likely to lose a congressional seat if sampling were used, in order to establish probable harm or injury from the Census Bureau's plan for 2000. There was also confusion over whether critics of the Bureau's plan believed that the law and Constitution barred sampling only for congressional apportionment or for other purposes as well. Justice Ginsburg noted that the use of sampling to produce census numbers for redistricting and the allocation of Federal aid was not an issue before the Court. However, Ms. Mahoney argued that sampling could not be used to count the population for any purpose, including congressional redistricting and Federal funds distribution. The Secretary of Commerce's authority to use sampling in taking a decennial census, she said, is limited to the collection of demographic and economic data on the traditional long form. * The Justices appeared to be divided about whether sampling and other statistical methods could be used to improve a direct counting effort. Justice O'Connor said that most people would think that the words "actual enumeration" in the Constitution meant a one-by-one count. She later challenged the House counsel's description of the Census Bureau's plan as an effort to count only 90 percent of the population, noting that 100 percent of households would receive a census form. Justice Stevens asked what census takers would do if there were a building with many undocumented residents who were afraid to answer the door and provide information. In the face of evidence that people lived there, must the census taker write down "zero," the Justice asked, even though "one" would be closer to the truth? Ms. Mahoney said that the count for those households must be "zero," which she said was preferable to guessing, prompting Justice Breyer to ask whether that was the policy even if the lights went on and off at night. Many observers believe the Court will issue a ruling by next spring; technically, the Justices have until the end of the term (late June or the beginning of July) to reach a decision. Monitoring Board examines administrative records: The Census Monitoring Board debated whether administrative records could be used to reduce the disproportionate undercount of racial minorities in the 2000 census at a November 23 hearing at Census Bureau headquarters. Republican co-chair Kenneth Blackwell said in opening remarks that he believes the Bureau can use Federal, State and local program databases, such as Medicaid files, to add targeted, hard-to-count populations to the census. Dr. John Czajka, a member of the National Academy of Sciences panel reviewing census methods, was the only non-Bureau witness. Dr. Czajka discussed the quality and content of government databases, and said records must be pulled from many sources in order to compile the basic information collected in the census. For example, tax returns and other information maintained by the Internal Revenue Service could be linked with social security records to gain more demographic data. Dr. Czajka said that further research was needed to overcome several deficiencies in the data from administrative databases that make their use problematic for census purposes. Those problems include the lack of a physical address (e.g., a post office box); the time lag between point of collection and Census Day; the inclusion of people who have died or the omission of recent births in some record sets; and missing demographic variables needed for the census (such as race, marital status, and relationship of householders). Databases also are most likely to leave out young people in their late teens and early twenties and noncitizens, he noted. Dr. Czajka concluded that administrative records could not be used to add people to the 2000 count. Three previous efforts to rely on such records to add to the census "blew up on the launch pad," he told the Board. He urged the Census Bureau to spearhead a research effort to address deficiencies, as well as privacy and confidentiality issues, and also noted that current law may prohibit the disclosure of some records for census purposes. Senior Census Bureau staff testifying before the Monitoring Board said that the Bureau would have to verify the information contained in administrative databases before adding those people to the census count. They noted, for example, that about 16 percent of all Americans move each year, while much higher proportions of harder-to-count groups like renters change residences, making field verification of administrative records necessary. The Bureau plans an extensive research effort to determine if government databases can be used to count the population in future censuses, the staff said. Bureau Director Kenneth Prewitt said the agency is not opposed to using administrative records in the census. "The bureau would use any method we thought would make the count better," he said. There were no witnesses supporting the use of administrative records to add people to the 2000 census. At the conclusion of the meeting, co-chair Blackwell said Republican Board members did not want the Bureau to rely on methods that haven't worked in the past if the Supreme Court "outlawed" sampling, and they urged the Bureau to pursue the use of program databases to address the differential undercount. The Board's next hearing is on December 16 in Sacramento, CA, one of the three dress-rehearsal sites. Census Advisory Committee considers recommendations: At its last meeting of the year, members of the 2000 Census Advisory Committee reviewed a draft of the panel's final report, which it will present to the Secretary of Commerce next February. The report will include key recommendations on the importance of partnerships with local governments and community-based stakeholders, effective field operations, the use of scientific and statistical methods, and the availability of census data products. Administrative note: You can find an archive of recent and past News Alerts at the Census 2000 Initiative Web site, www.census2000.org http://www.census2000.org. Questions about the information contained in this News Alert may be directed to TerriAnn Lowenthal at (202) 484-2270 or, by e-mail at terriann2k(a)aol.com. Please direct all requests to receive News Alerts, and all changes in address/phone/fax/e-mail, to Census 2000 at Census2000(a)ccmc.org or 202/326-8700. Please feel free to circulate this information to colleagues and other interested individuals.