Date: Thu, 11 Jun 1998 From: Keri Monihan <kmonihan(a)ccmc.org> Following is the copy from the most recent Census 2000 News Alert - If you have any problems with the transmission, please call me at 202/326-8728. Federal Court Hears Arguments In Gingrich Lawsuit Against Census Sampling A three-judge U.S. District Court panel heard oral arguments today before a packed courtroom in the case filed by House Speaker Newt Gingrich (R-GA) challenging the constitutionality and legality of sampling in the census. District of Columbia Circuit Court Judge Douglas Ginsburg was joined by District Court Judges Royce C. Lamberth and Ricardo Urbina in presiding over U.S. House of Representatives v. U.S. Department of Commerce, the first of two lawsuits asserting that the Constitution and the Census Act (Title 13, United States Code) prohibit sampling in the census. The Department of Justice (DOJ) argued the case for the Commerce Department, first suggesting that the House did not have standing to bring the lawsuit because the current Congress (105th) would not be harmed by a census taken in 2000 and that the case was not ripe for judicial consideration because the House could still direct census methods through legislation. Judge Lamberth appeared skeptical of those arguments, pointing out that if the controversy over sampling was not settled soon, the decision on which methods to use would be irreversible and any potential harm to the plaintiffs caused by sampling was therefore inevitable if the Census Bureau proceeded with its plan. Lawyers for the House argued that Congress and the Administration had reached an impasse on the question of whether sampling can be used in the census, making it necessary for the courts to step in, an argument that Judge Lamberth appeared to embrace. Plaintiff's lawyers noted that the Bureau and the General Accounting Office believed that a decision on the census design should be made very soon. Both sides also presented their arguments on the constitutionality and legality of sampling methods. The government said that the Constitution contemplates the most accurate census possible, while the House's lawyers argued that the term "enumeration" in Article I, section 2, meant to count one by one, not to estimate. Judges Ginsburg and Lamberth seemed most concerned with plaintiff's suggestion that sampling methods are open to political manipulation. The government noted in response that traditional counting methods also can be manipulated to achieve a certain outcome. Plaintiff's lawyers also argued that the Census Act does not allow sampling to produce the census counts used to apportion the House of Representatives. They pointed to section 195 of the Census Act, which states that except for purposes of apportionment, the Census Bureau "shall" use sampling methods whenever possible. The government's attorney's countered that section 141 of the Act authorizes the Secretary of Commerce to determine how the census will be taken, including the use of sampling. They suggested that when Congress amended both sections in 1976, it intended to encourage the use of sampling whenever possible in data collection activities but leave the decision on whether to use sampling in the decennial census to the Secretary. The court also heard brief arguments in support of the government's position from intervening parties: the City of Los Angeles on behalf of 19 other cities, counties, and states, and 19 Members of Congress; House Minority Leader Richard Gephardt and several other Democratic representatives; a coalition of Asian American and Hispanic civic organizations; and the California State Legislature. In a written statement, House census subcommittee Chairman Dan Miller (R-FL), referring to arguments that the case was not ready for judicial intervention, said he was troubled that "the President is using taxpayer money to pay government lawyers to try to get the case dismissed." Rep. Miller asked: "Is he [the President] afraid that sampling will be found unconstitutional?" The lawsuit filed by the House of Representatives, at the direction of Speaker Gingrich, as well as the outside law firm hired to argue the case, are also being paid for with taxpayer funds. The government argued the merits of the case as well as pursuing arguments on whether the Constitution permits this type of case to be heard. Also in a written statement, Citizens for an Honest Count Coalition, a group of conservative organizations opposed to sampling, urged the court to rule quickly "before billions of dollars are wasted on a phony census." In an audio press conference yesterday hosted by the Census 2000 Initiative, constitutional scholar and Harvard law professor Laurence Tribe said that neither the Constitution nor the law prohibited sampling. Calling the lawsuit one of "the Emperor has no clothes," Prof. Tribe said that it wouldn't make sense for the framers of the Constitution to say the Congress should direct how the census will be taken and then limit those methods. Article I, section 2, says in relevant part that "the actual Enumeration shall be made [every ten years] in such Manner as they [Congress] shall by Law direct." University of Wisconsin history professor Margo Anderson, author of "The American Census," said that the Founding Fathers sought a way to depoliticize the process of allocating seats in Congress among the states and settled on a measurement of the population, but that they had not discussions about the methods for doing so. The other lawsuit, Glavin v. Clinton, will be heard by a three-judge panel in the Eastern District of Virginia (Alexandria) later this summer. In the Census Bureau's funding bill for this year, Congress directed that the courts expedite consideration of the cases, with any appeal going directly to the Supreme Court. HOUSEKEEPING NOTE: The Census 2000 Initiative Web site is nearing completion. Please forward any suggestions for hyper-links you think should be included to: Henry Griggs at hgriggs(a)ccmc.org. Questions about the information contained in this News Alert may be directed to TerriAnn Lowenthal at (202) 434-8756 or, by e-mail, at <terriann2k(a)aol.com>om>. Please feel free to circulate this information to colleagues and other interested individuals.