blank.gif (51 bytes) Census Battle Has High Stakes for Nevada and the Nation
by Valle Simms Dutcher

he U.S. Department of Commerce and its agency, the Census Bureau, with the approval of the President, are presently implementing an unprecedented plan for conducting the census in the year 2000. Although the decennial census has been conducted as an actual enumeration by counting the national population in every census in the history of this country, the department is now making preparations, which will soon be irreversible, designed not to count the entire population in the year 2000. The experimental statistical sampling method planned for the 2000 census is clearly on a collision course with the U.S. Constitution and federal law.

Equally important, Clinton’s illegal plan to use statistical sampling for Census 2000 will disrupt state legislative apportionment and will cost millions in state and federal revenues for areas in states like Nevada.

At stake in two cases now before the Supreme Count is the integrity of the decennial census, the constitutionally mandated method for determining congressional apportionment. Art I, Sect 2 of the U.S. Constitution authorizes a ten-year "actual Enumeration" of the U.S. population. The Fourteenth Amendment delineates the approved method and reason for the census: "Representatives [in Congress] shall be apportioned among the several States according to their numbers, counting the whole number of persons in each State…." In Federalist  No. 54, James Madison declared the actual head count census methodology the "permanent and precise standard" for determining U.S. population, thereby avoiding the potential for manipulation of the numbers by any state or group.

The U.S. Supreme Court heard oral arguments on appeal by the government on November 30. The appeals arose from two separate unanimous opinions from specially appointed three-judge panels in Virginia and Washington, D.C. which issued injunctions prohibiting the department from using sampling in the decennial census for purposes of apportioning congressional representation.

Both courts found that Section 195 of the Census Act was determinative of the question of the Secretary’s authority to use sampling. Section 195 states that "Except for the determination of population for purpose of apportionment of Representatives in Congress among the several states, the Secretary shall, if he considers it feasible, authorize the use of statistical method known as ‘sampling’ in carrying out the provisions of this title."

The constitutional framers debated a similar issue in the hot summer of 1787. They understood from colonial practice the difference between determining population by "actual enumeration" and doing so by estimation. In fact, the colonies had established methods for determining the population to apportion taxes and political power long before the Constitution was ratified. However, the Framers considered and rejected proposals to allocate representation based on the relative wealth of the states and decided instead to use population as the sole measure. The Framers also rejected proposals made on behalf of New Hampshire and Georgia to calculate the number of representatives for each state based on estimates of anticipated population growth rather than actual population.

The Framers’ rejection of the practice of estimation in favor of the "permanent and precise standard" of the actual count signaled the deep concern for making the appointment of political power immune to manipulation. The decennial head count would insure that the shifts in power between the states would not be subject to controversy. To further insure the integrity of the enumeration process, the Framers also linked direct taxation to the state head counts, which was repealed by passage of the Sixteenth Amendment to the U.S. Constitution authorizing federal income taxation. With a key check against the temptation to inflate population numbers removed, the "actual enumeration" mandate has taken on even greater significance.

The government’s controversial plan for Census 2000 is a radical departure from previous census methods. The plan for Census 2000 calls for an actual head count of only 90 percent of the U.S. population. The remaining ten percent, approximately 27 million people, will be statistically projected based on assumptions made by census administrators. Under this "best guess" approach, Census Bureau statisticians will "adjust" the initial estimate of the population in an attempt to account for a projected "differential undercount." Through this "adjustment" the government will classify everyone in the country by "substrata" according to demographic characteristics such as race, ethnicity, age and housing status. Statisticians will then compute the "probability" that each group was under-or over-counted in the census. For groups that the statisticians assume are overcounted, actual census forms will be deleted from the count. For groups that are assumed to be undercounted, "computer generated" people will be added to the census rolls. Although proposed and rejected for use in the 1990 census, statistical sampling has never been utilized in the decennial census.

Fundamentally, the Glavin and U.S. House of Representatives cases are challenges about the law, not about census accuracy. In both suits, plaintiffs raised key arguments about the nature of representative democracy and the critical importance of the census in the process of republican government. Government defendants and their sampling allies have characterized the two legal challenges as partisan attempts to obstruct legitimate efforts to account for certain minority groups who may be undercounted in the decennial census. In fact, Vice President Gore announced that sampling will protect racial minorities from the alleged goal of the Republican Party, which, he believes "does not want to count" minorities.

Contrary to the government’s position, however, the Bureau has already spent more than $260 million to obtain better mailing lists for Census 2000, and has acquired advanced technologies to better process the raw data collected during the census. The Bureau has further simplified the mail-in census surveys, has allocated $100 million for a national television advertising campaign to "get-out-the-count," and has designed better community outreach programs to count the hard-to-reach people. The ostensible goal is a more accurate head count. According to past census directors, these actions alone will improve any perceived undercount by 50 percent.

Nevertheless, the Bureau’s use of statistical sampling would make irrelevant the entire census improvement process. The department’s plan requires an actual count of only 90 percent of the U.S. population, a mark met easily by past census-takings. To redress the 1.6 percent undercount resulting from the 1990 census, the department’s plan would intentionally undercount by 10 percent. In order to adhere to statistical models which have been developed for the 2000 census. The department’s plan would additionally require the removal of millions of people from the census count who actually fill out and return their forms in order to make the sampling models "work." Recall that the actual count requires no models, no projections, and no alterations or manipulations based on assumptions.

In states such as Nevada, where population is increasing in every demographic group, statistical sampling instead of an actual head count will disrupt state legislative districts. Most states, including Nevada, use the Census Bureau figures to determine state legislative districts. The Clinton plan to adjust the census numbers to redress alleged undercounts of minority groups, while ignoring other demographic groups that are also traditionally undercounted (rural dwellers, wealthy multi-homeowners, college students, and traveling salespersons), will result in false "puffing" of certain populations in Nevada at the expense of the whole. Legislative redistricting, slated to begin in 2001, may well reflect false assumptions about our population.

Another point of concern is that for the first time in American history partisan manipulation of the census-taking process is a very real possibility. Whether promulgated by Democrats or Republicans, the courts have made clear that statistical sampling is illegal, and for good reason. The integrity of the census count is every bit as critical to representative democracy as the integrity of the ballot box is to honest and free elections. We do not guess at the number of votes in an election, and we cannot, under the law, guess at the number of people in America.

After the 1990 census, a special advisory report to then-Commerce Secretary Robert Mosbacher concluded, "Any statistical formula that attempts to define the true population of the country will be based upon certain assumptions. The assumptions are consciously chosen and assigned relative weights. But what if the assumptions are wrong?" Apparently the assumptions were, in fact, wrong: a post-enumeration adjustment employing statistical sampling for the 1990 census was found to be 2.1 percent inaccurate, a far greater discrepancy than the 1.6 percent inaccuracy of the actual count. GOP leaders who lobbied for the use of sampling in 1990 were met by rejection from Secretary Mosbacher, who recognized that going down the "slippery slope" of statistics would taint the census process. Democrat leaders and their sampling allies should understand that the same principle applies today.

Additionally, more than $180 billion in federal funds are distributed annually among the states based on census figures. By tampering with the census outcome, sampling advocates would dramatically affect the direction and impact of important federal programs relating to housing, education, public safety and the elderly. Certain Nevada counties will lose millions of dollars in federal revenues as a direct result of the manipulated census figures.

Should the 2000 census be comprehensive and accurate? Of course. Will it reflect the true population of our nation? By law, it must. "Actual" versus "sampled" enumeration is a distinction with fundamental legal consequences. At all costs, we must avoid the politicizaton of the decennial census by any individual or group. We must encourage national participation in the census and support the Census Bureau in its efforts to improve the head count. As the constitutional framers intended, we must count everybody, because in America, everybody counts.  NJ

Valle Simms Dutcher is Associate General Counsel for Southeastern Legal Foundation, an Atlanta-based public interest law firm, representing plaintiffs in Glavin et. al. v. Clinton et. al., United States Supreme Court.


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