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By Kent Larsen
Census Arguments Made, But Panel Raises Doubts About Counting LDS Missionaries
SALT LAKE CITY, UTAH -- A three judge panel in Salt Lake City heard
arguments Wednesday from the state of Utah, the US Census Bureau and the
state of North Carolina over the count of overseas US citizens in the 2000
census. But the court made clear that it was not inclined to include LDS
missionaries in the count. And while Utah then argued that federal employees
living abroad should then also not be included in the census, the Bureau and
North Carolina vigorously disagreed.
Utah began its arguments by claiming that LDS missionaries should be
included in the count, suggesting that the Bureau count "similarly situated
groups" in addition to federal employees. But the panel's chief judge,
Stephen H. Anderson, a justice on the 10th Circuit Court of Appeals, quickly
cut off the claim. "Unless you persuade me otherwise, the only option is to
include LDS missionaries or exclude federal employees . . . There is no
conceivable way to go beyond the LDS group, " Anderson said. He went on to
add that including only LDS missionaries was not fair, "Including only
missionaries would not advance the cause of equal representation." He also
rejected Utah's claim that leaving overseas LDS missionaries out of the
census violated the "equal protection" doctrine, saying that those arguments
were undeveloped and criticized the state's failure to define "similarly
situated groups," "It's like you're saying 'We don't know what [the
definition of 'similarly situated groups'] is. You figure out what it is.' "
When Anderson rejected Utah's main argument, the state's lead attorney, BYU
Professor Tom Lee, shifted to arguments that the overseas federal employees
included in the census should also not have been counted. "The question is
whether the Census Bureau acted lawfully by counting only a narrow segment
of all Americans living overseas. . . . only those who happen to work for
the federal government." This argument was more successful with Lee claiming
"The Census Bureau is trying to have it both ways. They're saying that
counting federal employees enhances the overall count, but what's good for
the goose is good for the gander." He says this argument gives the Bureau
"unfettered discretion to include the groups it wants to include."
Panel Judge Dee Benson, a US District Judge in Salt Lake City, was
sympathetic to this argument, asking why the Bureau hadn't done more to
count other US citizens overseas. "Isn't that what they do? They're not
strangers to difficult counts. I don't see anything in the record where the
Census Bureau has made a serious attempt to reach similarly situated people."
But Rupa Bhattacharyya, Commerce Department attorney representing the Census
Bureau claimed that the Bureau was taking such steps, but hadn't been able
to implement reforms for the 2000 census. She said that federal employees
were included not only because they could be accurately counted, but also
because they conform to a uniform standard and are working overseas at the
federal government's order -- they don't have a choice. This point, that
they are overseas at the federal government's order, was the reason that the
US Supreme Court upheld counting them in its 1992 ruling in Franklin vs.
Massachusetts.
Bhattacharyya also said that including LDS missionaries, even though they
can be accurately counted, would appear to favor one state over the others.
In order to include other groups a reasonable standard needs to be in place,
"If you count those groups that can provide reliable records, where will you
break it off? There are businesses, churches and schools that all keep good
records. But how will you get a representation that is not skewed?"
Sources:
Missionary Count Looks Shaky
Salt Lake Tribune 29Mar01 T1
By Joe Baird: Salt Lake Tribune
Utah census quest called unrealistic
Deseret News 28Mar01 T1
Court may reject Utah census bid
Ogden UT Standard-Examiner 29Mar01 T1
By Bob Ward: Standard-Examiner Capitol Bureau
Judges Hear Utah's Census Plea
New York Times (AP) 28Mar01 T1
By Paul Foy: Associated Press
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