OVERVIEW OF CURRENT CENSUS ISSUES (By Daniel L. Pollitt, Kenan Professor of Law, The University of North Carolina at Chapel Hill) For some years now the Committee on Post Office and Civil Service and its Subcommittee on Census and Population (chaired by Representative Mervyn Dymally) have been monitoring the preparations for the 1990 census. The most recent full committee hearing was on June 24, 1988, in Ypsilanti, Michigan. Representative William D. Ford chaired; Representatives Dymally, Frank McCloskey, and Carl D. Pursell shared the dias. Dr. John G. Keane, Director, Bureau of the Census was the leadoff witness. He was followed by Thomas Durbin and David Huckabee from the Congressional Research Service, Library of Congress. These three know just about everything there is to know about the census from 1790 to the present. Two constitutional law experts testified. Professor Robert A. Sedler of Wayne State University School of Law represented the City of Detroit and Mayor Coleman A. Young in a 1980 federal court suit seeking to compel the Census Bureau to make a statistical adjustment to the 1980 enumeration for the racially differential undercount. Professor A. T. Alexander Aleinikoff teaches both constitutional and immigration law at the University of Michigan Law School. Daniel A. Stein, Executive Director of the Federation for American Immigration Reform (FAIR) testified. FAIR filed the suit in 1980 to compel then Secretary of Commerce Philip Klutznick to exclude illegal aliens from the census count, [Federation for American Immigration Reform v. Klutznick, 486 F. Supp. 564 (D. D.C. three judge court, 1980)]. It is now a party plaintiff in a similar suit recently filed. Ridge v. Verity. Co-plaintiffs include forty-two congressmen and the states of Pennsylvania, Kansas, and Alabama. Dr. Juliette Okotie-Eboh from the planning department of the city of Detroit told of the serious impact the census count has on the allocation of federal (and state) grant; and Dr. Allen Schirm of the Population Studies Center of the University of Michigan spoke of new demographic and statistical techniques for conducting a census. The topics concerned a series of bills (i) to compel the Secretary of Commerce to make statistical adjustments to accommodate the "undercount" of minorities and dispossessed; (ii) to compel the Secretary of Commerce to exclude the illegal aliens from the census count; and (iii) to compel the Secretary of Commerce to include the overseas servicemen and women, federal civilian employees, and dependents in the 1990 census count. The census count will determine the reapportionment of seats in the House of Representatives. It will impact on some 107 Federal programs which use census data as a factor in allocating United States dollars to the various localities; the education, headstart and job training laws for example. The Census count may even determine the outcome of the 1992 Presidential election. Each state is represented in the Electoral College (which elects the President) in proportion "to the whole number of Senators and Representatives to which the state may be entitled in the Congress", [United States Constitution, Art. 11, Sec. 1, cl. 2.]. Since 1930, Massachusetts, New York and Pennsylvania have lost a total of 18 seats in the Electoral College, while California, Florida and Texas have gained 36. [New York Times, July 8, 1988, p. A 26.] It makes a difference. Should this trend continue, political power will shift further from the states of the Northeast and Midwest to the South and Southwest. Small wonder then that the Committee on Post Office and Civil Service, and its subcommittee on Census and Population have conducted a wide series of hearings and heard from witnesses, both government and private, expressing a wide gamut of opinions on a number of diverse topics. The Constitution requires an "actual Enumeration" of the population every “term of ten years". [Art. 1, Sec. 2 cl. 3.] Thereafter, representatives are apportioned among the several states "according to their respective numbers, counting the whole number of persons in each state". [The Fourteenth Amendment Sec. 2] There are 435 seats. Each state gets "at least one representative" [Ibid.] the remaining seats are divided among the states according to their population. Because of migration patterns the experts estimate that Illinois, Michigan and Ohio might lose two seats each; that New York might lose as many as five, and Pennsylvania either two or three seats. California, Florida, and Texas are expected to gain perhaps three, four or five seats each. On the other hand, the representation of twenty-six states will not be affected at all. [Huckabee, House Apportionment Following 1990 Census: Preliminary Projections, July 8, 1987.] I. THE "UNDERCOUNT" Nothing can be done to change these results; unless of course something can be done about the "undercount". Public health statistics record how many black males are born, how many die. From this, our witnesses estimate with fair accuracy how many are alive. But on census day (April 1 of the decennial year) approximately 20 percent of the black males between the ages of 20 and 45 may not be counted. In 1980, blacks were 11.7 percent of the population, but constituted 53 percent of those not counted in the Census of that year. Overall, more than 15 percent of young and middle-aged blacks were not counted. [U.S. Bureau of the Census. Coverage of the Population in the 1980 Census.] They lurk in the ghettos of our major metropolitan areas, and are not part of the "actual Enumeration" required by the Constitution. Hence the "undercount"; tilting political power and Federal grants from the have-nots to the haves. Mayor Edward K. Koch emphasized the significance of the acknowledged 1980 "undercount" of over 524,000 in New York City: One crucial effect of the undercount is to deprive the City of its full share of representation in Congress and in the New York State Assembly. What that means is that we have not been fully represented in political decisions that fundamentally affect us. This is not only unfair; it is unconstitutional. A second effect is that the City has lost between $28 million and $52 million annually in Federal fund under certain programs with formulas tied to population. Over a period of ten years, this translates into a loss of up to half a billion dollars in services to New York. We have also lost state funds under programs similarly tied to population. [Impact of Legalization Process On Counting Undocumented Aliens in Decennial Census, Hearing_before the Subcommittee on Census and Population of the Committee on Post Office and Civil Service, House of Representatives, 100th Cong. 1st session (June 1, 1987), p. 13.] Frederick A.O. Schwartz, the former Corporation Counsel of New York, followed up with testimony that: The disproportionate undercount affects lots of people-blacks, hispanics, aliens-poor people in general, residents of high-crime urban areas, persons with unconventional living arrangements, like people who are doubled up, and persons whose English skills, whose literacy skills, are weak or nonexistent. Every one of those classes of persons tends to be disproportionately undercounted. And they tend to live, disproportionately, in areas like New York and Los Angeles. Id. at 27. Attorney Schwartz concluded on a sober and foreboding note: As you know, under the original Constitution, blacks were counted as threefifths of a person, officially in the Constitution they were counted as three-fifths of a person. Today, unofficially, because of the Census underrcount, blacks in our central cities are counted as about four-fifths of a person, and the hispanics, it's the same degree of undercount. Ibid. From three-fifths to four-fifths in 200 years is not a record we can let stand. We must aim for five-fifths. New York was not the only city where this mal-apportionment existed. The city of Detroit had an estimated "undercount" of 48,000 in the 1980 census, and Mayor Coleman A. Young sued the Secretary of Commerce to compel a statistical adjustment. [Young v. Klutznick, 497 F. Supp. 1318 (E.D. Mich. 1980), reversed on other grounds, 652 F. 2d 617 (6th Cir. 1981), cert. den. 455 U.S. 939 (1982).] A number of other states, cities and counties did the same. [The cases are cited and discussed in Note, Demography and Distrust: Constitutional Issues of the Federal Census, 94 Har. L. Rev. 841, 842-843 (1981).] Generally, the lower courts held (1) that there had been an "undercount", (2) that there were statistical adjustment methods available that would produce more accurate census counts, and (3) that the Census Bureau was required to use such statistical methods. See, e.g. Carey v. Klutznick, 508 F. Supp. 420 (S.D. N.Y. 1980). These decisions against the Secretary of Commerce were reversed on appeal, primarily on procedural grounds. See, e.g. Carey v. Klutznick, 653 F. 2d 732, 737-738, (2d. Cir. 1981); holding that the district court overlooked the impact on other cities and states that arguably should have been joined in the action. The Supreme Court refused to review. See, e.g. 455 U.S. 999 (1982). Throughout the litigation the Secretary of Commerce contended first and foremost that the "actual Enumeration" required by the Constitution means a "headcount"; and a "headcount" means that modern demographic techniques to augment the actual "headcount" must be kept in the closet. As backup to this position, the Secretary argued in the alternative that there was no accurate method available to adjust the population data as acquired from the "headcount". The courts accepted this proposition. [See, e.g. the final decision in the New York suit, Cuomo v. Baldrige, #80 Civ. 4550, (S.D. N.Y. Dec. 8, 1987); Alexander Lurie, Adjusting the 1990 Census, Background and A Pro-Con Analysis, CRS Report for Congress, April 18, 1988, at 7.] In 1980, Director Barabba of the Census Bureau stressed the need for continuing research in the area of "undercount measurement," and he forecast some progress. In 1982 an "undercount" research staff was established in the Statistical Research Division of the Bureau of the Census. [Lurie, infra at pp. 6-7 1990 Census Adjustment Procedure and Coverage Evaluation; Hearings before the Subcommittee on Census and Population of the Committee on Post Office and Civil Service, 99th Cong. 2nd. sess. (July 24, 1986) p. 3.] In July of 1986, Barbara Bailar, the Associate Director of the Census Bureau for Statistical Standards and Methodology reported progress in this area. Subsequent witnesses, mostly leading statisticians from academia, reiterated that it was now feasible, as a technical matter, to adjust the 1990 census to minimize the "undercount". Subsequently, in 1987, Professor Michael Stoto of Harvard testified that field tests in Los Angeles and Mississippi indicated that a Post Enumeration Program could be integrated into the "actual Enumeration" to reduce the differential undercount. He exclaimed that the "research and planning of the Bureau's undercount staff in this decade has been truly impressive". [Census Undercount and Feasibility Of Adjusting Census Figure, Hearing before subcommittee on Census and Population, of the Committee on Post Office and Civil Service, 100 Cong. 1st. Sess. Aug. 17, 1987, p. 51.] Then came a bombshell. On October 30, 1987, Under Secretary of Commerce Robert Ortner announced that the Census Bureau would not adjust the 1990 Census "for purported undercount of population subgroups." At subsequent hearings Barbara Bailar, since retired from the Census Bureau, charged that Ortner's decision "was dressed up like a technical decision when everyone knew it was a political decision." She added that "The Census Bureau knows how to correct the counts (and) the integrity of the census will be irreparably damaged if the official census number are uncorrected." Secretary Ortner denied that there was "political pressure, political influence, and a political decision". Congressman Charles Schumer disagreed and categorized the decision to ignore the "undercount" problem as "a raw exercise in partisan politics." [Lurie, note-infra at 10 to 11.] Congressman Dymally introduced a bill, H.R. 3511, the Decennial Census Improvement Act of 1987, to require the Secretary of Commerce to adjust the population data to correct for any undercount or overcount, and Senator Moynihan introduced a companion bill in the Senate. (S. 1942) II. THE ILLEGAL ALIEN Not only is there a big city "undercount," but to many people who testified before our committees, there is an "overcount"; as well, namely, the alien who is illegally here and who is included in the "actual Enumeration". These witnesses suggest, vigorously so, that the illegal alien is not to be counted as part of "the whole number of persons" in each state. They protest that illegal aliens must be eliminated from the 1990 census: at least as far as the reapportionment of the House of Representatives is concerned. Undeniably, the illegal alien is a "person" within the contemplation of the "due process" and "equal protection" clauses of the Fifth and Fourteenth Amendment. The Supreme Court so held some 100 years ago. See, e.g. Wong Wing v. United States, 163 U.S. 228 (1986); Yick Wo v. Hopkins, 118 U.S. 356 (1986). Undeniably the illegal alien is a "person" entitled to a free education at state expense; and "employee" entitled to all the rights of other "employees" under the National Labor Relations Act. The Supreme Court so held in recent terms of court. Plyler v. Doe, 457 U.S. 202 (1982); Sure-Tan Inc. v. Labor Board, 467 U.S. 883 (1984). However, these witnesses assert, the mere fact that the illegal alien is a "person" within the contemplation of Federal Laws, the Fifth Amendment, and the first section of the Fourteenth Amendment (the Equal Protection Clause) does not compel the_conclusion that he is also a "person" within the contemplation of section 2 of the Fourteenth Amendment (the Apportionment of the House clause). Nitpicking? A slender reed on which to hang a weighty constitutional contention? Perhaps, but nonetheless these witnesses insist that as a matter of constitutional law the illegal alien should and must be excluded from the 1990 census Enumeration. [See, e.g. testimony of Daniel A. Stein, Executive Director of the Federation For American Immigration Report (Fair) before the Committee on Post Office and Civil Service, United States House of Representatives, 100 Cong. 2d. Sess. (June 24, 1988).] Their exclusion might well make a difference. David C. Huckabee, an expert from the Congressional Research Service, reviewed for the Committee both the estimates regarding the past 1980 census, and the projected estimates for the 1990 census. It was estimated in 1980 that somewhat over two million illegal aliens were included in the census Enumeration. Had they not been included, California and New York probably would have lost seats in Congress, Georgia and Indiana probably would have gained a seat each. Projecting ahead, it is estimated that should two million illegal aliens be eliminated from the 1990 Enumeration, California and Texas would each lose a seat, with Pennsylvania and West Virginia the gainers. Some put the current illegal alien population at four million; twice that of 1980. Should this number be excluded from the 1990 census, California could lose either two or three seats, Texas one. The gainers with one seat each could be either Kansas, Montana, North Carolina, Ohio, Pennsylvania, or West Virginia. All this, of course, is speculative. Mr. Huckabee acknowledged that "population projections for predicting apportionment after the census are somewhat off the mark." For example, the Census Bureau's best population projection for 1980 (complied in 1979) was "far wide of the mark." The reason? "Very small population differences can make, and have made, a difference in apportionment". In 1970, for example, "a switch of only 300 people" could have resulted in switching the last assigned seat in the House of Representatives from Connecticut to Oklahoma. This explains why population projections for the 1990 census differ when estimated by different teams of admittedly qualified experts. [Apportionment of the House after the 1990 Census: Constitutional and Practical Implications of Excluding Illegal Aliens, Testimony of David C. Huckabee before the Committee on Post Office and Civil Service, 100th Cong. 2d Sess. June 24, 1988.] Whatever the accuracy of the illegal alien count might be, four bills have been introduced thus far in the 100th Congress to exclude illegal aliens from the 1990 census. [H.R. 3639 (Rep. Petri), H.R. 3814 (Rep. Ridge), H.R. 4243 (Rep. Daub), and S. 2013 (Sen. Shelby).] Added impetus was added to this drive when members of Congress, joined by private citizens, the states of Pennsylvania and Kansas, and private organizations spearheaded by the Federation for American Immigration Report (Fair) filed suit to compel the Secretary of Commerce to eliminate the illegal alien from the Census count. Ridge v. Verity, No. 88-0351, (W. D. Pa., filed Feb. 18, 1988).] Census Bureau officials tell us that as a practical matter this cannot be done. [Proposed Legislation to Exclude Undocumented Immigrants from the 1990 Apportionment Counts, testimony of Dr. John G. Keane, Director of the Bureau of the Census before the Subcommittee on Census and Population, Committee of Post Office and Civil Service, 100th Cong. 2d Sess, June 23, 1988.] At the time of the 1980 census, legal aliens were required to register with the Immigration and Naturalization Service. It was then possible to compare that number with the larger number of aliens (both legal and illegal) reported in the census. The remainder, after technical adjustments, comprised the estimate of illegal aliens. But legal aliens no longer report to the Immigration and Naturalization Service; and there is no other qualified source from which to gain the number of aliens lawfully abiding in this country. A substitute technique suggested by those seeking to exclude the illegal alien is simply to ask the census respondent to list all members of the household who are lawful residents; and then count only the number of lawful residents for apportionment purposes. Dr. John G. Keane, Director of the Census, fears that if asked about his status (either legal or illegal) the respondent might simply trash the questionnaire; whether the census questions be ingenious or ingenuous. Thus the census results would be skewed. Legal aliens, he testified "may misunderstand or mistrust the census and fail or refuse to respond"; illegal aliens "may either avoid the census altogether or deliberately misreport themselves as legal residents in the census". [Id.] This is all deja vu. In 1929 Alabama's then Senator Hugo Black introduced a bill in the Senate to exclude illegal aliens from the 1930 census count. The remarks of Maryland Senator Tydings in opposition are appropriate to today's debate. He asked this rhetorical question: "Anyone coming into the country illegally would have to lie or sneak in and if he lied his way in does the Senator think the answers we would get in these statistics |