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Posted 26 Mar 2001   For week ended March 23, 2001
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Sent on Mormon-News: 24Mar01

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 reconsider."

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


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