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Counting the People

November 30, 1998 at 12:00 AM EST
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PHIL PONCE: How to conduct the national census in the year 2000 too center stage at the Supreme Court today. At issue: if the Census Bureau uses estimates or samplings, does that violate the Constitution, and do private citizens and the House of Representatives have the legal standing to challenge that method? At the courthouse today was NewsHour regular Jan Crawford Greenburg, legal affairs reporter for the Chicago Tribune.

And, Jan, welcome, especially since you’re a little under the weather. What’s the case about?

JAN CRAWFORD GREENBURG, Chicago Tribune: Well, first, let me give a little background. The 1990 census was considered by many people to be an expensive failure. It cost $2.6 billion, and it resulted in a net undercount of about 4 million people. Now, many of the undercounted were minorities and the – or urban poor. And experts say they were missed at a higher rate than other groups for a variety of other reasons, whether language barriers or fear, mistrust of government, or education issues.

PHIL PONCE: Jan, tell us briefly, how does a census bureau conduct a census or how did they conduct it in 1990?

JAN CRAWFORD GREENBURG: In the 1990 census, they relied on traditional methods. They mailed out questionnaires to every known household in the United States, with a series of questions, and asked people in the households to return them. About 65 percent of the people did. It then sent census surveyors into the field to go to the non-responding households to determine who lived there and what the remaining population looked like. Now, the changes that the Census Bureau is proposing will come into play there. It would still send out the questionnaires to all the known households, and it still expects to get about a 65 percent response rate.

But, instead of sending census surveyors into the field to, you know, try and find all the people who did not respond, it would send them out only to the point that they surveyed 90 percent of the households. Then with the remaining 10 percent, it would use a kind of sophisticated statistical sampling to come up with what the remaining 10 percent would be.

PHIL PONCE: So that last 10 percent the Census Bureau basically would extrapolate from the 90 percent?

JAN CRAWFORD GREENBURG: They would extrapolate that from those who didn’t respond to their questionnaires, who didn’t respond they would extrapolate from.

PHIL PONCE: But basically they would say this we know is out there, therefore, we can make a reasonable assumption about the remaining 10 percent, is that how it would work?

JAN CRAWFORD GREENBURG: That’s right. And their sampling would be used in another phase as well. That’s only the first phase. Then the Census Bureau would conduct a very intensive survey of about 750 households in every state across the country to do what the Clinton administration Census Bureau is arguing is a quality check, to make sure that their figures are accurate — so two phases that are under attack in the high court today.

PHIL PONCE: But bottom line, the Census Bureau would basically be rejecting 10 percent roughly of the nation’s population?

JAN CRAWFORD GREENBURG: That’s right. That’s right.

PHIL PONCE: Who’s against it?

JAN CRAWFORD GREENBURG: The House of Representatives – Republican-led House of Representatives has sued to block the plan. They argue that it’s subject to political manipulation and is illegal under the federal Census Act, as well as the Constitution. A group of individuals also has sued to block the plan, so both of those cases were argued today and consolidated.

PHIL PONCE: What does the Constitution say about the census or how it’s conducted?

JAN CRAWFORD GREENBURG: Well, one of the phrases at issue is that the Constitution requires an actual enumeration of the people every 10 years to reapportion the House of Representatives, and that’s at issue here, what does “actual” mean? In arguments today Justice O’Connor said, I think most people would think actual means actual, an actual head count. And that’s what the opponents maintain, that’s what the House of Representatives maintain, and that’s what the group of individual plaintiffs also are arguing. Now the lower courts did not reach this constitutional issue. They decided in favor of the opponents solely on the federal statute, and the lower courts ruled that the federal statute prohibits the use of sampling for reapportionment.

PHIL PONCE: So they never got -

JAN CRAWFORD GREENBURG: They never reached the broader -

PHIL PONCE: — the lower courts did not have to get to the constitutional question.

JAN CRAWFORD GREENBURG: — constitutional issue.

PHIL PONCE: So the issue before the Supreme Court then is?

JAN CRAWFORD GREENBURG: Whether or not sampling is legal under the Federal Census Act and whether or not it’s legal under the Constitution. But before the court reaches that — and the justices spent quite a bit of time today weighing this issue – they’ve got to overcome the whole issue of do they have a legal right to challenge this procedure in the first place.

PHIL PONCE: The standing question of whether or not -

JAN CRAWFORD GREENBURG: That’s right. That’s right.

PHIL PONCE: — whether or not either the House of Representatives or the private citizens involved would be, what, adversely affected somehow.

JAN CRAWFORD GREENBURG: Or suffer some kind of injury, yes, and that’s a very real problem, and the justices seem quite concerned particularly that the House of Representatives did not have, as you said, the legal standing to be challenging this new procedure that the Census Bureau is wanting to employ in the 2000 census.

PHIL PONCE: Well, wouldn’t the House of Representatives have standing if ultimately it could – the census would impact the size of districts or what’s – how many seats each state would get?

JAN CRAWFORD GREENBURG: Because “ultimately” is the key word. It hasn’t happened yet. There’s been no – and this is true for both classes – plaintiffs. There’s been no injury. In fact, as Seth Waxman, the solicitor general, argued today. He said, in fact, what’s happening is these two groups are asking the court for an advisory opinion; there’s been no injury – the court – you know, should not do that. And Justice Scalia today – at least for the House of Representatives – seemed somewhat hostile to their claim.

He said he was very reluctant to drag a third branch of government into what he called a political dispute between the executive branch and the legislative branch, and he suggested that Congress and the White House should just duke this out and leave the Supreme Court out of it.

PHIL PONCE: So aside from the standing, what kinds of questions did the justices ask regarding how the Census Bureau plans to or wants to do the next census?

JAN CRAWFORD GREENBURG: Well, they were very – they really wanted Solicitor General Waxman to explain the procedure. Chief Justice Rehnquist, for example, asked, you know, how do we know what a true number is, if we’re just estimating, how do we know this is a true number, and for Justice John Paul Stevens, I really got to what sampling would mean and what the use of sampling, how it would work, if, you know, if it weren’t used, if we used these traditional methods.

He raised the example of, let’s say we have a large apartment building and the census surveyor goes out to try and figure out how many people are in this large apartment building because they haven’t mailed back their questionnaires, and no one will come to the door. Maybe there’s undocumented immigrants that they’re afraid to answer the door. The census taker knows there are people inside. Justice Stevens said what would happen then, he asked the lawyer House of Representatives. And she said the taker, or the census surveyor would have to mark zero on the form.

PHIL PONCE: Even though the census taker knew, as a matter of fact, that there was an apartment full of people?

JAN CRAWFORD GREENBURG: Right. And as Justice Breyer said, even if they were turning the lights on and off at night, and she said, well, yes, they can’t guess. And that’s really what the House of Representatives say. They can’t guess; we can’t guess this. The Constitution requires and the federal law requires an actual enumeration.

PHIL PONCE: And there’s some urgency time-wise, right, because the census wheels have to get going? When is a decision expected?

JAN CRAWFORD GREENBURG: Well, as you know, the court has for practical reasons until the end of June, but some are saying they expect a decision by March so that the census can get going and get underway.

PHIL PONCE: Jan, thanks very much. Hope you feel better.

JAN CRAWFORD GREENBURG: Thanks.