In court: fight over House seat

The Supreme Court hears a dispute between N. Carolina and Utah.

This morning at the nation's highest court, Utah takes on North Carolina.

No, this is not another college basketball game. Rather, the justices of the US Supreme Court are set to referee a high-stakes disagreement between Salt Lake City and Raleigh over which state deserves the last seat in the newly apportioned US House of Representatives.

The outcome will help set the balance of power in Congress by determining whether the resulting seat may ultimately belong to a North Carolina Democrat or a Utah Republican. It will also help clarify the bedrock legal and constitutional requirements of conducting the census for congressional apportionment.

In broad terms, the case touches on the essence of the democratic process – the very mechanism set up by the Founding Fathers to safeguard equal representation.

The US Constitution requires that every 10 years the government determine the total number of residents in the country. That number is used to fairly apportion the 435 seats in the House.

Deciding on a uniform method of counting is crucial, because even slightly different counting standards applied in different regions of the country could make the results dependent on the counting standard rather than the count itself.

That is the central allegation in the dispute between Utah and North Carolina. It is a dispute that puts the spotlight on a deep disagreement between conservatives and liberals over the extent to which statistical estimates should play a role in the census.

Liberals generally support North Carolina's position that the use of statistical estimates to supplement other types of census-counting is desirable, because it helps compensate for certain groups, like illegal immigrants, who are chronically undercounted in the census.

Conservatives generally support Utah's position that the Constitution's command of an "actual enumeration" requires the counting of actual individuals.

"It is less important to know how many people there are than to know where real people are for purposes of determining political representation in this country," says Todd Young of the Southeastern Legal Foundation, which has filed a friend-of-the-court brief supporting Utah.

It is more than just a theoretical point. The case will determine whether North Carolina's congressional delegation includes 13 members or 12, and whether Utah's delegation is made up of three members or four.

"Utah's representation in the House of Representatives has been improperly reduced by 25 percent, and its representation in the Electoral College diluted by roughly 17 percent," writes Thomas Lee, a law professor at Brigham Young University, in a brief to the court filed on behalf of Utah.

Mr. Lee says that unless the Supreme Court overturns a lower-court ruling siding with North Carolina, "Utah and its approximately 2 million residents will be seriously underrepresented in both of these bodies for the next decade."

What separates North Carolina from Utah are some 900 residents who have not been actually counted, but whose presence in the Tarheel state is assumed based on a technique called "hot-deck imputation." It is a fancy term for using existing statistics of actual residents to make an educated guess about the presence of uncounted residents.

Here's how it works. Census officials who are unable to determine the number of individuals in a particular building, but who have verified the occupants in a neighboring building will "impute" or assign the same occupancy rate to the unknown building.

Lawyers for North Carolina say such methods have been used in the census for 40 years. "Hot-deck imputation involves no methodical selection of any representative subset of the population; rather, the characteristics of one unit are simply attributed to another," says James Smith, a special deputy North Carolina attorney general, in his brief to the court.

"At its core, the imputation process was much like the procedures followed in the earliest censuses, when a neighbor would give information about the house next door if its occupant was nowhere to be found," says Nancy Northrup in a friend-of-the-court brief filed by the Brennan Center for Justice at New York University School of Law. "The various forms of imputation used in the 2000 census and its predecessors represent only the most modern attempt to use information gained from one respondent to better enumerate the entire population," she says.

Lawyers for Utah disagree. They say the 2000 census marks a substantial expansion in the use of such imputation techniques. "It is undisputed that the [Census] Bureau dramatically altered its method of imputation in the 2000 census – using it for the first time to estimate the occupancy not only of houses known to be occupied [or at least known to exist], but also of houses whose very existence it had never established," says Lee.

In 1999, the US Supreme Court decided a similar case involving a challenge to a Census Bureau plan to use statistical sampling to augment the counting effort.

The high court ruled 5 to 4 that federal law bars such "sampling" when the resulting population numbers are to be used to determine congressional apportionment. The court ruled that census officials must make every effort to verify the actual presence of residents, rather than relying on statistical analysis to infer their presence.

Utah argues that "hot-deck imputation" is a form of sampling that is barred by federal law and the 1999 Supreme Court ruling.

North Carolina says imputation is not sampling and is a permitted technique.

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