By Kent Larsen
Census Judge Reverses Himself, Case to be Heard by Three Judge Panel
SALT LAKE CITY, UTAH -- The US District Judge hearing Utah's lawsuit against
the US Census Bureau has reversed himself and decided that the lawsuit
should be heard by a three judge panel after all. The new decision puts the
lawsuit back on track for a quick decision, since an appeal of the ruling by
the three judge panel would go straight to the US Supreme Court.
US District Judge Dee Benson originally ruled on March 7th that the lawsuit
didn't involve a constitutional issue and therefore couldn't be heard by a
three judge panel as all three parties to the case sought. But the parties
asked Benson recently to revisit the issue, and he has now changed his mind.
Benson had scheduled a hearing for tomorrow on the lawsuit, but that hearing
was postponed by a week because he is recovering from shoulder surgery. The
three parties to the lawsuit, the state of Utah, the state of North Carolina
and the US Census Bureau, all asked him to reconsider his decision, and
Judge Benson announced the new decision on Friday. He attributed the change
in his decision to the complicated nature of the statute that allows the
three judge panel. BYU law professor Tom Lee, who is lead counsel for Utah,
agrees, "I don't think the three-judge statute is very clearly written.
There was a difficult question of whether it applied in this case or not.
But like any good judge, he showed a willingness to take a step back and
Meanwhile, Utah's Democrats are asking the state to change the focus of its
arguments, saying that a challenge to the Census Bureau's methods is more
likely to be successful than a challenge to the overseas count. Todd Taylor,
executive director of the Utah Democratic Party, says that the state should
focus on the Census Bureau's use of a kind of sampling when it conducted the
2000 apportionment count, and may have counted 90,000 North Carolinians
twice. According to the Democrats, the US Supreme Court has already ruled
that sampling can't be used for apportionment counts, making it likely that
Utah could win on this challenge. The Democrats also note that the state of
Massachusetts has already challenged the Census Bureau on its count of
overseas citizens and lost in the US Supreme Court.
In Utah's challenge to the census count, the state claims that the US Census
Bureau discriminated against LDS missionaries in the 2000 census. According
to the complaint and to Bureau statements, the Bureau excluded LDS
missionaries and other US citizens living abroad in its count while
including overseas Federal employees such as diplomats and military
personnel. As a result of this "disparate treatment," North Carolina was
apportioned an additional seat in the US Congress that would have otherwise
gone to Utah.
Utah would like the Bureau to either count LDS missionaries and other US
citizens living abroad, or not count any US citizens living abroad. Under
either scenario, Utah argues, it would get an additional seat. Utah Attorney
General Mark Shurtleff says that the count should either include or exclude
all US Citizens overseas. "This is arbitrary," said Shurtleff. "Either count
all of them or none of them. Either way, we would have gained the fourth seat."
Census Challenge Back on Fast Track, Decision means Utah has shot at a ruling this year
Salt Lake Tribune 17Mar01 T1
By Joe Baird: Salt Lake Tribune
Panel of 3 judges to hear Utah case
Deseret News 17Mar01 T1
Judge ailing; census fight postponed
Charlotte NC Observer 17Mar01 T1
By Adam Bell
Change focus of lawsuit over census, Demos urge
Deseret News 17Mar01 T1
By Elyse Hayes: Deseret News staff writer