From: Census2000 <Census2000(a)ccmc.org> 5 - 4 Court Decision Bars Sampling For Purposes of Congressional Apportionment; Political Debate Shifts to Use of Sampling for Other Purposes Justices Express Widely Differing Views on Meaning of Census Act In a close decision issued yesterday, Justice O'Connor led a slim majority of five Justices in reaching the conclusion that section 195 of the Census Act (title 13, United States Code) "prohibits the proposed uses of statistical sampling in calculating the population for purposes of apportionment." The Justices expressed a wide range of views on whether the Act allows the use of sampling to derive the state population totals used for congressional apportionment. Justice Scalia authored a separate opinion concurring in O'Connor's conclusion, in which Justice Thomas joined in full and Justice Kennedy and Chief Justice Rehnquist joined in substantial part. Justice Stevens, author of the dissenting opinion, was joined by Justices Souter, Ginsburg, and Breyer in reaching the conclusion that "[t]he Census Act unambiguously authorizes the Secretary of Commerce to use sampling procedures when taking the decennial census." Justice Breyer set forth somewhat different reasons for reaching the same conclusion in a concurring opinion. The Justices also split several ways on whether the parties challenging the census plan had legal standing to do so. The five Justices in the majority concluded that the plaintiffs in Glavin v. Clinton had standing because at least one litigant, a resident of Indiana, successfully demonstrated (based on analysis done by University of Wisconsin government professor, Dr. Ronald Weber) that his state would lose a congressional seat if statistical methods were used in the 2000 census. The Justices also noted that residents of some counties would be injured by the use of sampling because their votes would be diluted relative to counties with higher undercount rates. Because it reached a decision on the merits of the Glavin case, the Court dismissed the similar case brought by the U.S. House of Representatives at the direction of former Speaker Newt Gingrich. In his dissenting opinion, Justice Stevens said he would have granted standing to the House plaintiffs, as well, and then overturned the lower court decision in that case. Justice Breyer, however, agreed with the majority's conclusion on standing. Justices Ginsburg and Souter took exception to the majority's consideration of intrastate redistricting in deciding the standing question. The Court's opinion: Justice O'Connor placed great weight on what she described as a 200-year congressional prohibition on the use of sampling to calculate the apportionment population. Through various amendments to the Census Act, O'Connor said, Congress authorized an increased level of sampling for collecting information other than the census counts used for congressional apportionment. When Congress amended section 195 in 1976, O'Connor wrote, it "changed a provision that permitted the use of sampling for purposes other than apportionment into one that required that sampling be used for such purposes if 'feasible'. They also added to the existing delegation of authority to the Secretary to carry out the decennial census a statement indicating that despite the move to mandatory use of sampling in collecting non-apportionment information, the Secretary retained substantial authority to determine the manner in which the decennial census is conducted." (emphasis in italics in original) Justice O'Connor also noted that when Congress debated the 1976 amendments to section 195, it did not discuss the possible effect of the change on the apportionment calculation. This silence, O'Connor wrote, demonstrates that "Members of Congress voting on the bill read the text of the statute, as do we, to prohibit the use of sampling in determining the population for apportionment purposes." In his concurring opinion, Justice Scalia ridiculed the dissenters' efforts to reconcile the apparent prohibition on sampling for apportionment purposes in section 195 with the Secretary's authority to use sampling in the census in section 141(a), which directs the Secretary to conduct the census. He was also swayed, Scalia wrote, by his strong doubt that the Constitution permits sampling in the census. The dissent: The dissenting opinion differed sharply with the reasoning of the majority, calling the Court's conclusion "an unusual tour de force." The Census Act, Justice Stevens wrote, contains two provisions on sampling: "an unlimited authorization" in section 141(a), giving the Secretary of Commerce "unqualified authority" to use sampling in taking the census, and "a limited mandate" in section 195, directing the Secretary to use sampling. However, under the second provision, the Secretary may decide not to use sampling in calculating the apportionment population or when he considers it infeasible, Stevens noted. Moreover, he said, the two provisions must be read consistently, with the provision relating specifically to the decennial census (section 141) prevailing over the other. Justice Stevens said that the 1976 amendments "unambiguously endorsed the use of sampling." "[T]he Court's interpretation of the 1976 amendment to section 141 drains it of any meaning," Stevens wrote. While the Court's opinion did not reach the Constitutional issue, the dissenters also concluded that the requirement for an "actual enumeration" does not proscribe methods Congress may direct for the census. Quoting an earlier Supreme Court opinion (relating to the inclusion of overseas military personnel in the census) that the census must serve "the constitutional goal of equal representation," Stevens said that using the most complete and accurate methods would best serve that purpose. In his opinion concurring with the four dissenters, Justice Breyer put forth his primary reason for concluding that the law does not bar the uses of sampling proposed by the Census Bureau in its plan for 2000. Breyer said he believes that Congress only intended to prevent the use of sampling as a substitute for traditional counting methods, not their use as a supplement to a direct counting effort. He pointed to the collection of demographic and housing information on the census long form as evidence of this distinction, saying that section 195 requires the Secretary of Commerce to collect data for purposes other than apportionment strictly on a sample basis. Therefore, Breyer said, the apportionment "exception" to the use of sampling referred only to the collection of information based entirely on a sample. He also noted that the Bureau has used statistical estimation procedures such as imputation in past censuses to account for people from whom it could not obtain responses directly. The Administration's response: At a press conference yesterday, Commerce Secretary William Daley called the Court's decision "disappoint[ing]," but noted that the decision only dealt with the use of sampling for congressional apportionment and "affirmed the legality of sampling for other purposes." The Census Bureau, Daley said, is reviewing both the opinion and the dress rehearsal results, to ensure that "the 2000 census is designed to produce the most accurate accounting of the American people." In response to reporters' questions, he alluded to the possibility that the Bureau would produce two sets of census numbers, but did not indicate that such a decision had been made. White House Press Secretary Joe Lockhart also called the Court's opinion "a limited decision under the existing statute" that did not address whether sampling could be used for redistricting or the allocation of federal funds. 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 Census 2000 at <Census2000(a)ccmc.org> or 202/326-8700. 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