Associated Press: "Federal government claims
Utah's census challenge is self-serving."
The federal government claims Utah's lawsuit trying to get Mormon missionaries counted in the 2000 Census is self-serving. ``In focusing solely on (The Church of Jesus Christ of Latter-day Saints) missionaries, Utah promotes relief which itself raises equal protection and establishment (of religion) clause concerns and which, aside from ignoring citizens from the other 49 states, blatantly forsakes Utah's other similarly situated citizens'' who are not Mormon, government attorneys wrote in a motion to dismiss the suit.
The motion, filed late Thursday in U.S. District Court in Salt Lake City, said Utah's effort to gain an additional U.S. House seat ``would not have surprised the framers of the Constitution'' who gave Congress control of the census so states wouldn't use the count to their advantage. ``The fear expressed by the framers could not be better illustrated than by the circumstances of this case,'' the motion said.
Utah's lawsuit, filed Jan. 10, argues that the Census Bureau discriminated against the state by excluding Mormon missionaries, while counting federal military and civil-service employees living abroad. North Carolina claimed more than 18,000 federal employees living overseas last year; Utah barely 3,000. In the end, Utah fell 857 residents shy of gaining a fourth House seat. North Carolina filed a motion for a summary judgment earlier Thursday, arguing primarily that Utah is asking for a change of the rules after the census count has been completed.
The federal government argued that Utah can't prove that counting the missionaries would have meant an additional House seat for Utah. ``That's kind of surprising to me, because to me, we clearly waited until there was injury,'' Utah Attorney General Mark Shurtleff said Friday. ``It's almost inarguable that we lost the congressional seat because of the way this census count was conducted.'' Shurtleff also took exception to the federal government's argument that Utah was seeking only a count of Mormon missionaries.
``It comes down to
counting identifiable people,'' he said. ``If we were to count everybody,
that would take another six months to a year. That's not a practical
solution. Our argument is, then don't count the federal employees and fix
it in 2010. And if they do that, we win again.'' Utah will file a response
to the government motion within the next two weeks. A hearing before a
three-judge panel is scheduled for March 20 in Salt Lake City.
The Deseret News
Change focus of lawsuit over census, Demos urge
March 17, 2001
Some Utah Democrats want the state to focus less on getting overseas LDS missionaries counted and more on the accuracy and legal issues of the census count. Todd Taylor, executive director of the Utah Democratic Party, says the party has an interest in the state's federal legal challenge over the census count lawsuit because state Democratic officials are among the plaintiffs in the lawsuit against the government. And while some Utah Democrats are worried another seat for the state will only mean "another Chris Cannon," it could also mean a more secure seat for recently elected Democratic Rep. Jim Matheson, and it will mean more representation for Utah, even if it is in Republican form.
Taylor recently criticized the Attorney General's Office, because he says it isn't paying attention to the issue of statistical sampling that was used in the apportionment count, and that the argument stands a better chance in court than the issue of excluding missionaries in the overseas count. "The sampling alone could have cost Utah a seat. . . . At least this (argument) has a positive history, and the other one doesn't," Taylor said.
Tom Lee, a Brigham Young University professor and lead counsel in the case, says Taylor's accusations are "unfair" and "politically motivated." He says he is frustrated that the Democratic Party is questioning Utah's team of attorneys, who have spent countless hours researching the case. "It's easy to skim the surface and think you've found something we missed," Lee said. "They're simply wrong and they haven't read our briefs." The sampling issue is being raised, Lee said, but it may not be the highlight of the plaintiffs' argument. In its case against the federal government, Utah's main argument is that counting some overseas residents and not others was unconstitutional.
In December, when the 2000 Census apportionment figures were released, North Carolina beat out Utah by 857 people to gain another congressional representative. That state had 18,000 military personnel who were counted overseas, while Utah had fewer than 4,000. Utah filed a lawsuit against the bureau in January, claiming it was discriminating by excluding 11,176 Utah residents who were serving LDS Church missions overseas on April 1, 2000, the official date of the census count.
Taylor says Massachusetts brought up a similar argument dealing with the overseas population count in court several years ago and lost. Statistical sampling, which is said to make up for those people who are missed by the census count, can be used for redrawing state political boundaries but not for reapportionment. Reapportionment numbers must come from actual, raw data, according to a 1999 ruling by the U.S. Supreme Court. But Taylor says the bureau did use a kind of sampling when it conducted the 2000 apportionment count, possibly counting 90,000 North Carolina residents twice, compared to 13,000 in Utah. If that statistical alteration were removed, Utah would gain a fourth seat.
An agreement reached Friday between the state of Utah and the Census Bureau would allow the House to certify the results of the 2000 Census, despite a pending lawsuit. The state of Utah, in a federal lawsuit filed last week and signed by all the state's top officials and the five-member Congressional delegation, argued that the decennial count was illegitimate because it did not include nearly 14,000 Mormon missionaries living abroad. In apportioning 435 Congressional seats among the 50 states, the Census Bureau counted employees of the federal government living overseas, including military and civilian personnel as well as their dependents.
Utah Attorney General Mark Shurtleff argued that such a process was " arbitrary" and initially sought an injunction to stop certification of the count last week. However, the agreement reached Friday would allow the certification to move forward with "no impact on the validity of the claims raised in the lawsuit," according to a statement released by Shurtleff's office.
Both parties are seeking a court date "on or about March 15," and a ruling is expected by the end of that month. On Jan. 3, President Clinton formally transmitted the results of the 2000 Census to Clerk of the House Jeff Trandahl, who was named as a defendant in the lawsuit. The Clerk then has 18 to 20 days to send "certificates of notification" to each state informing them of the number of House seats that they have been apportioned.
Utah had sought to stop that process, arguing that it should have received a fourth House seat because more than 10,000 Mormon Church missionaries living abroad had not been counted. Instead, the seat was awarded to North Carolina, which beat out Utah for the last seat by a margin of just 856 individuals after the overseas count was included. The total number of overseas residents who claimed Utah as their home was 3,545 compared with 18,360 who claimed residency in North Carolina. "His thinking was it would be irresponsible to come as close as we did and not pursue it," said Mary Jane Collipriest, a spokeswoman for Utah Sen. Robert Bennett (R), explaining why her boss signed onto the lawsuit.
Redistricting experts said it will be an uphill battle for Utah to convince a three-judge panel appointed by the 10th Circuit Court in Denver to include the missionary population in its apportionment numbers. Any appeal would go directly to the Supreme Court. Among the problems is the issue of whether missionaries from other states would then have to be counted. "The issue of counting Americans abroad comes up before every census, and it's always challenged," redistricting attorney Jeff Wice said, arguing that the remedy lies in changing the law through Congress. "It's a losing argument. "
"They're trying to make the case that these are people on a specific mission for their church and their home residence has been and will be the state of Utah." There is a precedent for the Supreme Court to rule against Utah, although it is not in a case involving missionaries. In 1992, Massachusetts challenged the loss of one of its House seats, arguing that the Census Bureau had improperly counted its residents who were living overseas. The court ruled against Massachusetts after a significant delay in the redistricting process, decreasing the size of its House delegation and awarding the extra seat to Washington.
The issue of whether and how to count Americans living abroad has been contentious for some time. The House Government Reform subcommittee on the census held a 1999 hearing on the subject, and Chairman Dan Miller (R-Fla.) included language in the appropriations bill governing the census instructing the bureau to report back to the committee on how best to track American citizens living abroad. Rep. Carolyn Maloney (D-N.Y.), the ranking member on the census subcommittee, plans to reintroduce legislation this Congress requiring an " interim census" of overseas citizens in preparation to include them in the 2010 Census.
"It's a little late for them to be expressing interest in the census when the members of the Utah delegation, along with the Republican majority, opposed using modern statistical methods in the census," Maloney commented Friday about the Utah lawsuit. "When and if we see the results of the Census Bureau's work, we will find out whether Utah would have saved a seat using the statistical methods in the apportionment count."
Utah's case against the federal government that challenges the 2000 Census count and threatens to take away a house seat from North Carolina was dealt a possible blow Tuesday. Utah filed a lawsuit in January requesting that the case be heard by a three-judge panel, which would allow for a speedier appeals process. Judge Dee Benson, who would have been one of the judges on that panel, denied the request on Tuesday. He will hear the case alone on March 20. If Utah had been granted a three-judge panel, the state could have bypassed the 10th Circuit Court of Appeals and appealed directly to the U.S. Supreme Court if it lost its case.
"The denial of that request means . . . it could add a second step in the appellate process. That could hold it up as long as a year," said Ray Hintze, Utah chief deputy attorney general. "The ones that will really suffer from the delay are Utah and North Carolina," who may wait for a decision before officially redrawing political boundaries. The state is challenging the Census Bureau's practice of excluding overseas missionaries from the apportionment count. Utah has more than 11,000 residents who are serving missions for The Church of Jesus Christ of Latter-day Saints in foreign countries and were not counted by the Census last year, something the state argues is religious discrimination.
The bureau counts those residents living overseas who are stationed abroad for military purposes. North Carolina's large overseas military population put the state in a position to gain a house seat in December when the numbers were released. Benson explained in court documents that he denied Utah's request for a three-judge panel because the constitutionality of the apportionment count is not being challenged. Hintze said he did not expect Benson to deny the request. "Quite frankly, we were surprised. We thought it would be granted," he said. So far, all three parties in the lawsuit have been cooperating to move the case along quickly, and Hintze said he expects they will continue to cooperate.
Meantime, Utah awaits the figures for redrawing political boundaries, which will be released sometime this month. The bureau is releasing the data state by state, with figures being sent to 11 states this week. The first sets of figures were being sent to Virginia and New Jersey Wednesday after the Bush administration announced that only statistics from the detailed national "head count" would be used to remap political district boundaries. Nine other states -- Arkansas, Indiana, Louisiana, Mississippi, Pennsylvania, South Dakota, Texas, Vermont and Wisconsin -- will get their data by week's end. By law, all states must receive their redistricting data by April 1.
The figures are crucial because they will be used to redraw congressional, state and legislative political districts. They're also controversial: On Tuesday, Commerce Secretary Don Evans said that only raw figures will be released to states, not adjusted figures that supporters say could protect against an estimated net undercount of 3.3 million people. Evans, whose department oversees the Census Bureau, agreed with a Census Bureau recommendation that said the raw head-count numbers are more accurate than the adjusted figures. He called the 2000 Census the "most accurate in the country's history." Supporters of statistical adjusting were not surprised by Evans' decision but nevertheless urged him to back adjustment anyway as a way to protect against an undercount of primarily minorities.
Conservative leaders in Utah do not want to follow the rules of Florida math -- that is, the precept that the first count is the best one, no matter how incomplete. The state of Utah, led by its Republican governor and five congressmen, has filed suit in federal court demanding a recount of Census 2000 numbers. The problem: Utah came up just short of having enough people to win a new congressional seat. By an Al Gore -- style margin of 856 people, Utah lost out to North Carolina. Utah officials want the Census Bureau's count to include the state's 14,000 Mormon missionaries living abroad. Or if missionaries aren't counted, they argue, military and civil service personnel stationed overseas should not be tallied. (North Carolina's 18,360 troops and diplomats stationed abroad trounced the Beehive State's 3,545.)
Counting people, it turns out, is as politically charged as counting votes. Arguing that the Constitution requires an "actual enumeration," conservatives have long battled census officials' attempts to use "sampling methods" in achieving a national head count. The stakes are high because census figures are used not just to apportion the 435 seats in the U.S. House of Representatives but to allocate federal funds to states and municipalities. Because the decennial census tends to undercount populations in Democratic areas, some on the right fear that statistical sampling will drive those numbers up. And the Census Bureau has been inconsistent about counting U.S. citizens living overseas.
Only the 1970, 1990, and 2000 surveys "officially" included military and federal employees stationed abroad and their dependents. Utah officials maintain that making distinctions between categories of Americans who live outside the country's borders is unfair. "Missionaries are unique in some respects," Utah Governor Mike Leavitt told The Salt Lake Tribune, but in their need for political representation, "they are identical to those serving in the military or civil service overseas." Of course, it's easier to count federal employees. What kind of sampling techniques might be necessary to count missionaries and others temporarily out of the country? How accurate will those counts be?
The Census Bureau maintains that it lacks the resources to count all private citizens abroad. As well, Census Director Kenneth Prewitt points out that "if you count Utah's missionaries, you must count the missionaries belonging to every other state." Then there are college students and business people stationed abroad. And how do you tell a permanent emigrant from a U.S. resident on hiatus? Finally, there is the high conservative principle against altering rules at the end of the count.
"If the courts find that Utah's missionaries should be
included in the 2000 census tally, every other state would sue us,"
contends Prewitt. "This is a fair criticism of the census, one which could
be considered for the 2010 survey, but you can't change the rules after
the game." If the case ever reaches the Supreme Court, oddsmakers might
want to check whether Justice Antonin Scalia has closer ties to Utah than
he does to North Carolina.
Everyone else at last Wednesday's hearing wanted to know whether the Census Bureau will release a census with sampling, but Rep. Chris Cannon (R-Utah) had his own agenda. After Utah narrowly lost its bid for a fourth House seat in reapportionment, Cannon aggressively lobbied House leaders for the seat Rep. Tom Davis (R-Va.) held on the Government Reform subcommittee on the census.
During his first census hearing last week, Cannon took the state's case to Barron, largely ignoring the bigger census issue to grill Barron about the bureau's "failure" to count Utah citizens serving overseas as missionaries for the Mormon Church by the same methods as it did federal employees and their dependents from states like North Carolina who are temporarily serving abroad.
"Clearly, this is a major concern to me and to the people of Utah," he said. The state fell just 856 residents short of gaining a fourth House seat. That practice aided North Carolina, which has a much greater number of federal employees living overseas than Utah. North Carolina received the final House seat in reapportionment. Colorado Delay. Colorado last week became the latest state to face a delayed redistricting process when Gov. Bill Owens (R) told Republicans that he doesn't expect they will be able to conduct the remap during the regular legislative session that ends May 9.
"My guess is we're going to get the information so late" that it will be difficult to do anything before the regular session's mandatory adjournment date, Owens told the Denver Post. The information required to draw new House district boundaries may not be available from the Census Bureau until mid-April. Colorado is gaining a seventh seat in the House because of its population growth over the past decade. Owens said he would like the state's seven districts to be "as competitive as possible" between the two major parties. That's difficult, he noted, because of the court-required "community of interest," which would keep Denver intact with its heavy concentration of Democrats. That would leave Republicans dominating the city's heavily populated suburbs, where the seventh district is likely to be located.
Officials may challenge practice of excluding missionaries from count
January 5, 2001
State officials may challenge the U.S. Census Bureau's practice of excluding residents serving foreign Mormon missions abroad from the state-by-state reapportionment count. Utah just fell 856 people short of gaining a seat in the House of Representatives last week, losing to North Carolina when residents living abroad were counted. But if Utah's 14,000 residents serving Mormon missions abroad had been counted, Utah would have gained a fourth seat. Gov. Mike Leavitt has asked the Utah Attorney General's Office and the state Office of Planning and Budget to research possible avenues of appeal. But Leavitt said the only recourse he sees is going to court.
At least three states have gone to court since 1970, with one case going to the U.S. Supreme Court. Leavitt said legitimate questions could be raised about why the Census counts military personnel and federal employees living abroad but not others, he said. "We don't want to be unreasonable about it. On the other hand, we don't want to leave opportunities unpursued," he said.
Leavitt's staff has been researching the matter since last Thursday and is expected to report back by the end of the week. Rep. Jim Hansen, R-Utah, the state's senior U.S. House member, said he plans to meet with the state's congressional delegation, Leavitt and the Utah Attorney General to determine the best action. "This is a rare, particular case. The best remedy may be to go to (federal) court," he said. The Census Bureau counts citizens according to where they live at the time of the census. But there is an exception for civil servants and military personnel serving overseas. When North Carolina's overseas population, bolstered by a large military presence, was added to the mix, Utah was bumped from the 435th House seat.
"This is worthy for our state to be asking these questions because we lost it by a small, small amount," Natalie Gochnour, deputy director of the Governor's Office of Planning and Budget. "It's certain that our population in Utah is always smaller because of people on missions." Spokespersons for North Carolina Gov. Jim Hunt and Gov.-elect Mike Easley said they were unfamiliar with the potential Utah challenge and could not comment on it. The census figures showed North Carolina with 18,360 residents living overseas, compared with 3,545 for Utah. The bureau began counting U.S. military personnel in other countries in the 1970 Census count as a result of the number of soldiers serving in the Vietnam War.
Officials in Utah are exploring ways to alter how the Census Bureau counts Americans residing overseas after the release of the figures from Census 2000, according to a report in Utah's Deseret News. The reason: Not counting Mormon missionaries overseas may have cost the state an additional seat in Congress. The Deseret News is owned by the Church of Latter-Day Saints, the Mormon church. According to the numbers released by the bureau, Utah missed having one congressional seat added to its delegation by a mere 856 people.
The seat went instead to North Carolina, which will have 13 congressional districts beginning in 2002. The News reports that "if Utah's 14,000 residents serving (Mormon) missions abroad had been counted, Utah would easily have gained a fourth seat." At the conclusion of the count of state residents, Utah was in line to receive an additional congressional seat. But when the Census Bureau added in civil service workers and military personnel living overseas, North Carolina eked out the additional seat.
The practice of counting government personnel overseas began in 1970 as a result of the large number of Americans in Southeast Asia as a result of the Vietnam War. There is no similar provision for counting religious workers who are overseas engaged in mission work. According to a Census Bureau spokesman, religious workers are considered expatriate Americans, overseas by choice. For Census purposes, they are considered equivalent to Americans working for oil companies in the Middle East or banking firms in Asia. They were not sent there by the U.S. government and therefore have no government administrative records to show that they are indeed there.
The policy of not counting religious missionaries overseas in the Census may impact Utah most significantly, but other states are also affected. Those include states where Southern Baptist Convention churches -- which also post a large number of religious missionaries overseas -- are a significant presence. Washington attorney Mark Braden, who has been involved in redistricting for the Republican Party in several different capacities, says that the failure to count overseas religious workers is an interesting issue. "What is the rational basis for counting military personnel and civil servants and not counting people involved in religious missions, assuming that they are readily identifiable?" Braden asks.