As printed in Bill Shipp's Georgia

Conducting the 2000 Census by deliberately not counting 10% of the U.S. population is a risky proposition that may set off a constitutional crisis.
The Clinton Administration has announced its intention to use statistical sampling for determining the U.S. population for the upcoming census. If the 2000 Census is carried out in this manner, it will mark the first time in U.S. history that the decennial census does not result in a hard count of the population. The plan calls for an actual count of 90% of the population, while the remaining 10%, or nearly 26.5 million people, will be statistically "projected."

Why would this set off a constitutional crisis? The reason is simple and clear. The "actual Enumeration" required by the U.S. Constitution is the basis for apportioning Congress among the states. Statistical sampling makes a hard distributive count of the U.S. population an impossibility. The potential effects on congressional apportionment are staggering. More importantly, the opportunity for partisan manipulation of the numbers will become a political reality.

The U.S. House on Tuesday approved an appropriations bill to allow "aggrieved persons"--residents of congressional districts who will lose representation in the Congress, members of Congress and the Clinton Administration itself--to seek speedy judicial resolution of the constitutionality of sampling. The administration believes that sampling is a legal way in which to correct for alleged past undercounts of certain hard-to-find individuals. But the Constitution and federal law are clear on this matter: "Representatives shall be apportioned among the several States according to their respective numbers, [by] counting the whole number of persons in each State," reads the 14th Amendment of the U.S. Constitution.

In addition, Congress has expressly forbidden the Commerce Department and its Census Bureau, which are responsible for conducting the Census, from using "sampling...for apportionment of Representatives" (13 U.S.C § 195).
So why have a law? The law allows quick court resolution of the important legal and constitutional questions about sampling before the administration goes forward with its scheme. The 2000 Census will cost upwards of $4 billion. Imagine the crisis if, in 2001, the courts threw out as unconstitutional the results of the statistically sampled 2000 Census. A recount has been estimated by the Census Bureau to cost more than $5 billion. The likelihood of such a result is high, particularly because the U.S. Supreme Court has indicated its interest in reviewing the constitutionality of sampling.
The U.S. General Accounting Office, one of the few federal agencies untainted by partisan interests, announced this summer that, "The question of whether sampling is statutorily and constitutionally permissible in determining the decennial census count can only be definitely resolved by the Supreme Court." The courts, in the end, will decide the fate of statistical sampling for apportioning Congress. Fiscal and judicial economy call for such resolution now rather than later.

The proposed law, which merely expedites judicial review of this important issue, is a "win/win" issue. It is most emphatically a "win" for the American voter and taxpayer who will avoid the risk of a census based on uncertain legal and constitutional grounds and the bitter morning after if the administration is wrong.

As the bill moves to the Senate for approval, the Southeastern Legal Foundation continues its months-long preparation to challenge the use of sampling in court. The U.S. Supreme Court has indicated its interest in resolving this issue, and we expect a relatively quick resolution before the high court.

For More Information Contact:
Media Relations
media@southeasternlegal.org
(404) 365-8500