Legal Challenges To Sampling

Census 2000 Education Kit

Legal Challenges To Sampling

The issues

As Congress continues to consider the Census Bureau's plans to use scientific sampling and statistical procedures in the 2000 Census, legal challenges to those plans have come from two directions:

Constitutionality: Opponents of sampling contend that the Constitution, in requiring a census every 10 years (Article 1, Sec.2) specifies "actual enumeration," meaning that only a physical headcount is acceptable. The Census Bureau contends that the framers left the method open by requiring a census " in such manner as [the Congress] shall by law direct."
Legality under The Census Act: Opponents of sampling also pointed to a 1976 provision in the Census Act (Title 13 USC) relating to the use of sampling in the census and other data-gathering programs.

The Supreme Court ruling

The U.S. Supreme Court ruled 5-4 in January 1999 that the Census Act amendments do bar the use of sampling methods to count the population for purposes of apportioning seats in Congress among the 50 states (Department of Commerce v. U.S. House of Representatives, 1999).
But the majority opinion written by Justice Sandra Day O'Connor, also found that amendments to Sec. 195 of the Act "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.'" (Emphasis in original)
Those amendments, the Court said, also gave the Secretary of Commerce "substantial authority" to decide how the census should be conducted. The Court was referring to sec. 141(a), which authorizes the Secretary to decide the best methods for conducting the census, "including the use of sampling procedures."
Four Supreme Court justices dissented to support the use of sampling more fully. Justice John Paul Stevens wrote that the 1976 amendments to the Census act "unambiguously endorsed the use of sampling." In a separate dissent, Justice Stephen Breyer concluded that the law only prohibits the use of sampling as a substitute for, not as a supplement to, traditional census methods.

Background

Lawsuits filed in February 1998 cited both legal and constitutional grounds for their objection to sampling.

Glavin v. Clinton was filed Feb 12, 1998 in Federal district court for the Eastern District of Virginia by Matthew Glavin, president of the Atlanta-based Southeastern Legal Foundation, and Rep. Bob Barr (R-GA).
U.S. House of Representatives v. U.S. Department of Commerce was filed Feb. 20, 1998, in Federal district court for the District of Columbia at the direction of then-House Speaker Newt Gingrich (R-GA).
Separate three-judge panels ruled Aug. 24, 1998 in the House case and Sept. 25, 1998, in the Glavin case. Both found 3-0 that the Census Act prohibits the use of sampling in the census for purposes of congressional reapportionment. Neither panel ruled on the constitutionality question.
The Supreme Court heard arguments Nov. 30, 1998. In its ruling, the Court did not address the constitutional issue.

The parties

Intervening in support of the Census Bureau: the City of Los Angeles and a group of cities, counties, states and Members of Congress; and civil rights groups including the League of United Latin American Citizens and the National Asian-Pacific American Legal Consortium.
Intervening in support of sampling opponents: about a dozen individuals who claimed their states would lose congressional seats if sampling is used, and several counties in Pennsylvania and Georgia. The States of Nebraska and Pennsylvania filed "friend of the court" briefs supporting Glavin and Barr.

The consequences

The Census Bureau is reviewing its plan for Census 2000 in light of the Supreme Court ruling. Officials have said they will use direct methods, without sampling techniques, to calculate state population totals used for congressional apportionment, in accord with the decision. The Bureau then plans to field a quality-check survey (called a post- enumeration survey, or PES) to provide the basis for correcting undercounts and overcounts in the first numbers. The second, more accurate set of numbers would be used for all non-apportionment purposes, such as drawing boundaries for congressional districts and allocation more than $180 billion annually in Federal aid.
Civil rights advocates and other stakeholders have promised to seek congressional action to amend the Census Act to allow the use of sampling for all purposes, including apportionment. Meanwhile, sampling opponents contend that the high court ruling precludes the use of sampling not only in reapportionment but also in the count used for congressional redistricting. They may try to prevent statistically corrected numbers by refusing to allocate money for a quality-check survey.
The City of Los Angeles said it might return to court to ensure that scientific sampling is used in deriving the census numbers to allocate Federal Aid. A Census 2000 without sampling would be likely to miss as many people as were missed in the 1990 count, and probably more, according to assessments by the U.S. General Accounting Office, the Commerce Department's Inspector General, and experts convened by the National Academy of Sciences.

Constitutional questions remain unresolved

The Supreme Court did not rule in January on the constitutionality of sampling for purposes of congressional apportionment, and no case raising the issue now pending before it. However, it has addressed the issue in previous cases.

Ruling on a suit seeking relief from the 1990 census undercount, the Court wrote that the Constitution gives Congress "virtually unlimited discretion" in deciding census-taking methods, and that Congress had transferred that authority, by statute, to the Secretary of Commerce (Wisconsin v. City of New York, 1996).
Separate opinions by the Department of Justice under Presidents Carter, Bush and Clinton all concluded that the Constitution permits the use of sampling and statistical methods as part of the census.
Stuart M. Gerson, Assistant Attorney General, Civil Division, in the Bush Administration, concluded in a July 1991 memo to the Commerce Department that the Constitution's term "enumeration" is used in requiring "the accuracy of census-taking rather than in the selection of any particular method." He said, "Nothing... indicates any additional intent on the part of the Framers to restrict for all time . . . the manner in which the census is conducted." He also noted that the term "actual enumeration" was used to stress that apportionment should be based on a census count of the population, not on the conjecture and political compromise that underlay apportionment before the first census.