Sampling for Census 2000: A Legal Overview Page: 3 of 31

Sampling for Census 2000: A Legal Overview

Summary
Sampling and statistical adjustment of the decennial population census taken for
the purpose of apportioning the Representatives in Congress among the States, have
become increasingly controversial during the past two decades and have culminated
in two lawsuits concerning the legality and constitutionality of sampling, Department
of Commerce v. U.S. House of Representatives and Clinton v. Glavin, which were
heard by the U.S. Supreme Court in consolidated oral arguments on Nov. 30, 1998.
The Supreme Court took the case on a direct appeal from the decisions by two three-
judge district court panels that the Census Act prohibits sampling in the
apportionment census. More controversy resulted from the decision by the
Department of Commerce and the Census Bureau to continue with both sampling and
non-sampling scenario preparations in the wake of the district court decisions.
Funding for Census 2000 preparations remains an issue since current appropriations
enactments fund census activities only through June 15, 1999.
For the past two censuses, in 1980 and 1990, the Bureau of the Census has
considered adjustment but has not adjusted the census. Each time, litigation resulted
when interested parties, including state and local governments and minority advocacy
groups, sued for adjustment of the census or for the release of adjusted figures.
Ultimately, in Wisconsin v. City of New York, the United States Supreme Court
upheld the decision by the Secretary of Commerce against adjustment in the 1990
census without directly addressing the constitutionality or legality of sampling. As
the 2000 decennial census draws near, the plans of the Bureau of the Census to use
statistical techniques, including a hitherto untried sampling technique for non-
response, and the apparent Administration support for these plans, has focused
renewed attention on the issues of reliability, legality and constitutionality of these
techniques. Disagreement between the legislative and executive branches about
whether to proceed with plans to use sampling techniques resulted in a compromise,
the creation of a civil action through which any aggrieved person could challenge the
use of sampling in the census for apportionment before a three-judge panel of a
federal district court, on an expedited basis, with a direct appeal to the U.S. Supreme
Court, also on an expedited basis. Two suits have resulted, the aforementioned
Department of Commerce v. U.S. House of Representatives and Clinton v. Glavin.
The compromise also established the bipartisan Census Monitoring Board to observe
and monitor all aspects of the preparation and implementation of the 2000 census.
This report will give an overview of the legal issues surrounding the use of
sampling and statistical procedures. It will first review the background of "actual
enumeration" in the constitutional authority for the census and of 13 U.S.C. 195,
which some have interpreted as prohibiting the use of sampling to adjust the census
headcount for apportionment, then discuss the case law interpreting these provisions
prior to the plans for the 2000 Census and the current lawsuits. Next, the history of
adjustment efforts by the Bureau of the Census will be briefly described, followed by
a summary of the legal arguments and the judicial decisions, as of the date of this
report, concerning the proposed sampling methods for the 2000 decennial population
census. Finally, the report will summarize the legislation in the 105th Congress
concerning the use of sampling in the decennial census.

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Sampling for Census 2000: A Legal Overview, report, December 30, 1998; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc805589/m1/3/ocr/: accessed December 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.

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