Watch CBSN Live

States Battle Over Census Count

The allocation of a single U.S. House seat, with all the additional power it carries in Washington, pits Utah and North Carolina in a lawsuit that boils down to one word — "actual."

The U.S. Supreme Court was set to hear arguments Wednesday by both states about how that word is used in the U.S. Constitution, with North Carolina hoping to keep an extra congressional seat and Utah claiming the seat as its own.

The case centers on the requirement by the Constitution for an "actual enumeration" of state populations every 10 years. States can gain or lose congressional seats based on shifting populations.

The Census Bureau uses a bit of guesswork for a tiny sliver of the U.S. population, after exhausting efforts to verify whether households exist at addresses listed in its master file.

Census enumerators are supposed to make up to six personal visits. As a last resort, the bureau simply assigns the same number of occupants to the presumed household as that of its nearest neighbor.

That trick added less than half a percent to the total U.S. population in the 2000 census. But it was enough for North Carolina to edge Utah, another fast-growing state, in the reallocation of the final congressional seat.

Utah argues the "phantom" households could just as well be businesses, storage units or typographical errors. North Carolina gained four times as many households as Utah under this practice, called hot-deck imputation.

"If there were six follow-up visits and you still don't know whether it's occupied, the best conclusion is it's not occupied," argues Tom Lee, a Brigham Young University law professor who will argue Utah's case before the Supreme Court.

The Census Bureau says that studies have confirmed 75 percent of "imputed" households are occupied homes.

"These are not phantom households," said Walter Dellinger, the U.S. solicitor general under the Clinton administration, who will argue North Carolina's case on Wednesday.

"This is a method the Census Bureau used with the full knowledge of Congress for the past 40 years to resolve inconsistencies and incomplete data at the end of the process," Dellinger said.

But Lee says it wasn't until the 2000 census that the bureau began assuming some entries on its master file were apartments or houses without solid evidence.

"They may be making six visits but not finding an address, or they are unable to determine if it's a house or business," he said.

The high court agreed to resolve the tug-of-war before the fall elections. An optimistic Utah has even drawn an optional fourth congressional district in case it prevails.

Campaigns already are under way in North Carolina for its new 13th U.S. House seat.

"North Carolina believes it won this seat fair and square. It's just too late for Utah to be challenging the results of the census," North Carolina Attorney General Roy Cooper said. "It would cause serious problems to undo" the results of the 2000 census.

Utah Gov. Mike Leavitt is unapologetic. "It's simply an issue of fairness," he said. "We want the seat."

At its core, the dispute is about a relative handful of people. In the complex math used to allocate congressional districts Utah lost out to North Carolina by just 856 people. Utah first argued it was cheated because thousands of Mormon missionaries proselytizing in foreign countries should have been counted, but the courts rejected that.

Utah is asking the Supreme Court to order U.S. Commerce Secretary Don Evans to issue new congressional apportionment figures without the imputed estimates.

It's undisputed Utah would leapfrog North Carolina for the final House seat if the Supreme Court agrees and that no other state would be affected.

U.S. Solicitor General Ted Olsen, defending the Census Bureau, insists that imputation is not the same as statistical sampling struck down by the Supreme Court in 1999. The bureau had planned to count up to 10 percent of the U.S. population by using a sample of the whole population.

Utah contends imputation is sampling by another name. It says the census is supposed to be as close to an actual head count as possible, not a guessing game.

A special three-judge federal panel in Salt Lake City didn't see it that way. It rejected Utah's "effort to ascribe some exalted meaning to 'actual enumeration,"' leading to the Supreme Court appeal.

Federal lawyers argue that "actual enumeration" requires only an effort to make the census as accurate as practical.

From the start in 1790, the census never was an actual head count. Surveyors — federal marshals at first — sometimes asked heads of household to provide numbers or relied on neighbors or postmasters. Beginning in 1970 the Census Bureau asked households to fill out and return their own forms by mail.

By Paul Foy