From: Keri Monihan <kmonihan(a)ccmc.org> September 25, 1998 Second Court Rules That Law Bars Sampling For Apportionment Commerce Official Says Census Could Still Include Sample Survey To Adjust Counts for Redistricting and Federal Aid A second federal district court panel ruled today, 3 - 0, that the Census Act prohibits the use of sampling methods to produce the population counts used to reapportion seats in Congress. The opinion was issued in the case of Glavin v. Clinton, filed last February by Matthew Glavin, president of the Atlanta-based Southeastern Legal Foundation. The plaintiffs, including Rep. Bob Barr (R-GA), also had asked the court to rule that the Constitution does not permit the use of sampling to conduct the census for apportionment purposes. However, like the three-judge panel in U.S. House of Representatives v. U.S. Department of Commerce, the Glavin court declined to address that question, finding instead that the statute governing the census (Title 13, United States Code, section 195) prohibits sampling for congressional apportionment. The Supreme Court announced recently that it would hear the U.S. House of Representatives case on November 30. Rep. Dan Miller (R-FL), who heads the House census subcommittee, said in a written statement that President Clinton should "immediately instruct the Census Bureau to abandon its plan for sampling in the 2000 Census." But Commerce Under Secretary Robert Shapiro told members of the 2000 Census Advisory Committee earlier today that the Administration fully expected to prevail at the Supreme Court. And even if the Supreme Court upholds the lower court rulings, Shapiro told the group of census stakeholders, the 2000 census would still include a large post-census survey to measure and correct for under- and overcounts. The adjusted numbers could then be used, he said, for the distribution of federal aid and by state legislatures to draw political district lines. In that event, Shapiro said, the Census Bureau would drop plans to contact a sample of unresponsive households in order to meet a Supreme Court mandate to produce census numbers without sampling for apportionment, while preserving the quality-check survey to derive a second set of counts that the Bureau believes will be more accurate. (The Census 2000 Initiative will provide a more complete summary of the Advisory Committee's proceedings in a future News Alert.) The Glavin case was filed in the Federal District Court for the Eastern District of Virginia on Feburary 12, 1998. The court heard oral arguments on August 7. Congress provided in this year's census funding bill that legal challenges to the use of sampling in the census would be heard by a three-judge panel, and that any appeal of the lower courts decision would go directly to the Supreme Court. The Eastern District of Virginia does not post decisions on the Internet. Those who want to obtain a copy of the opinion from a law library or other source may refer to Case Number 98-207. 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>om>. Please direct all requests to receive News Alerts, and all changes in address/phone/fax/e-mail, to <census2000(a)ccmc.org> or 202/326-8728. Please feel free to circulate this information to colleagues and other interested individuals.