WASHINGTON, March 27 (UPI) -- The Bush administration's top lawyer argued forcefully before the Supreme Court Wednesday that in requiring an "actual enumeration" for the census, the Constitution does not mean a literal head count.
"All the Framers (of the Constitution) wanted to do was have a reasonably accurate number" in the census, U.S. Solicitor General Theodore Olson told the justices.
The argument came in a case in which Utah claims an improper census technique gave one of its rightful House seats to North Carolina.
But the administration's stance is in direct conflict with that taken by House Republicans in a 1999 Supreme Court case that outlawed statistical "sampling" in the census. In that case, House leaders said an "actual enumeration" meant just that -- a real head count, with no statistical fiddling.
The administration's argument Wednesday was designed to help North Carolina in its battle with Utah over the House seat.
North Carolina is the site of a key battle over the seat of retiring Sen. Jesse Helms, R-N.C. At least one member of the court, Justice Antonin Scalia, suggested that the administration might not want to offend North Carolina voters.
At issue in Wednesday's argument is whether a type of U.S. Census estimation, called "hot-deck imputation," is illegal sampling.
Utah is challenging the practice -- estimating the uncounted population of one housing unit by comparing it to a similar unit that was fully counted -- and says it cost the state at least one House seat.
If Utah had been able to count 900 more residents during the 2000 Census it could have claimed the extra representative.
Utah also contends the practice gave North Carolina an additional seat in the House based on the 2000 Census, but that no other state was affected.
The Census Bureau processed data for 120 million households in 2000. That included more than 147 million paper questionnaires and 1.5 billion pages of printed material.
"The Census Bureau's intensive efforts to obtain information directly from an individual at each address (or, if necessary, an individual familiar with that address) were not always successful," the Justice Department told the Supreme Court in a brief supporting the bureau and its parent, the Commerce Department. "When the bureau was otherwise unable to obtain information regarding the number of persons who resided in a particular housing unit on the census data, it employed 'imputation,' a widely accepted procedure used to account for missing, discrepant or improperly processed data."
The "hot-deck imputation" method has been used by the Census Bureau since 1960.
"Hot-deck" means that data used for comparison was taken from the same census; "cold-deck imputation" means the data came from an earlier census or some outside source.
"In the form of hot-deck imputation used in the 2000 census, housing unit and other data were stored sequentially in a computer file as they were processed," the department said.
"When data for a particular unit were incomplete, data from the most recently processed housing unit with similar characteristics were imputed to it."
Utah filed suit last April saying that the imputation process violated the federal Census Act, which bars sampling, and the census clause of the Constitution, which calls for an "actual enumeration" of each state's population.
The state relied on the Supreme Court's 1999 ruling in Commerce Department vs. U.S. House. In that ruling, the high court said statistical sampling was banned by the federal Census Act, but did not decide whether sampling violated the Constitution.
In Utah's imputation challenge, a federal trial judge panel ruled 2-1 against the state. The panel majority said the banned practice of sampling consisted of "the technique of determining the traits of the entire population by collecting and analyzing data" from a randomly drawn sample of the population.
In other words, the Census Bureau would "sample" a small segment of the population and extrapolate it to the whole population. Before 2000, the bureau wanted to use the technique to more accurately count minority segments of the population who are traditionally undercounted, but the practice was stopped by the 1999 Supreme Court ruling.
In contrast, the Utah court panel majority said, "hot-deck imputation" is a different methodology. "Sampling" occurs during the collecting of data; "hot-deck imputation" occurs during the processing of data.
After the panel's ruling, Utah appealed directly to the Supreme Court.
Speaking for the state Wednesday, Provo, Utah, attorney Thomas Lee said the Constitution's requirement of an "actual enumeration" meant just that -- an actual head count.
"James Madison noted that was the way required by the Constitution," Lee said, adding later, "James Madison referred to a distinction between an 'actual enumeration' and an estimation."
Lee was questioned closely by several court members, led by Justice Stephen Breyer. If census takers can't contact anyone at a residence, but the neighbors see a "pizza man" making a delivery, Breyer asked, must the census report no residents in the household?
"If the pizza man knows someone lives there," Lee replied, "he's a (legitimate) proxy who can give information to a (census) enumerator."
Washington attorney Walter Dellinger argued the case for North Carolina. Dellinger, a former acting solicitor general in the Clinton administration, said the Constitution's "actual enumeration" should be interpreted as "the right number, not as a (head) count."
Olson used his time before the high court to lay out the position of the Bush administration -- which in effect supported North Carolina's.
"The Census Bureau has consistently used imputation to correct small (amounts of) damaged data for the last five decades" in all states, Olson said.
The Census Act expressly forbids "sampling," Olson said, but since it does not mention other techniques, they are not forbidden.
Moreover, "this methodology (imputation) has been used with the full knowledge of Congress for the last five censuses," he said.
Olson used the analogy of a "census" of the Supreme Court library. "Sampling" might involve counting the books on every third shelf and then multiplying the number by three, he said. In contrast, "imputation" might mean counting all the books present, then counting the individual empty spaces on shelves and including them in a final total.
At one point, Scalia pointed out to Olson that census results are presented to the president, who certifies them. Any final decision in the case would be an attempt to "bind the president," Scalia said, a very serious undertaking.
What if President Bush decides not to accept the revised count, Scalia asked, if Utah wins its case? Bush "might not want to offend North Carolina by taking away one of its representatives," he added.
"The president will obey the law," Olson replied.
"You seem to be accepting Marbury vs. Madison," interjected Justice David Souter, getting a burst of laughter from Olson and most people in the courtroom.
The 1803 Marbury decision by Chief Justice John Marshall established the supremacy of the Supreme Court in interpreting the Constitution.
The current Supreme Court should hand down a decision in the Utah-North Carolina case sometime before the summer recess in late June or early July.
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(No. 01-714, Utah et al vs. Sec. Evans et al.)
