Utah will have its day in court Wednesday to make arguments against the Census Bureau that could lead to an additional congressional representative for the state.
But whatever the outcome of Wednesday's hearing, it probably won't be the last word on the matter. The losing party will almost certainly appeal the decision to the U.S. Supreme Court, says Tom Lee, Utah's lead counsel in the case.
Utah filed a federal lawsuit in January saying the Census Bureau was acting unconstitutionally when it chose to count some overseas residents — military personnel — and leave out others — missionaries.
Because of the overseas count, Utah missed gaining a fourth congressional representative, the seat instead going to North Carolina.
That seat, though representing only a tiny portion of the 435-member Congress, would increase Utah's delegation by 25 percent and bring the state's representation to almost 1 percent of Congress.
"Representation is important economically and politically. . . . It would mean representation in issues that are important to the West and to Utah," said Stewart E. Smith, state legislative analyst. "It would also give us an additional electoral vote in presidential elections."
In December, when the 2000 Census apportionment figures were released, North Carolina beat out Utah by 857 people to gain another congressional seat. Without overseas residents added in, Utah was in line to gain a fourth seat. But North Carolina had more than 18,000 military personnel who were counted overseas, while Utah had fewer than 4,000.
"In fairness, we should have gained our fourth seat," Smith said. "We really have a strong case."
Utah's leaders agree. The governor, members of the Legislature and Utah representatives, along with some residents, filed a federal lawsuit against the government Jan. 10 saying it was unfair that military personnel and their families living abroad were counted by the Census Bureau in 2000 but that religious missionaries serving overseas were excluded.
The team of attorneys representing the state says that on April 1, the official day of the 2000 Census count, Utah had 11,176 LDS missionaries serving in foreign countries who were not counted, which they say was discriminatory and illegal.
Since the suit was filed, North Carolina has intervened in the case, since the state will lose its recently reapportioned congressional representative to Utah if the state wins its case.
Utah, the U.S. Department of Justice and the state of North Carolina have each filed requests for the case to be decided speedily and without a prolonged trial in 10th Circuit Court. The government has also filed a motion to have the case dismissed.
North Carolina filed its motion for summary judgment in late February saying Utah's lawsuit against the Census Bureau was "too late."
"The plaintiffs have waited until well after the decisions on the manner, form and conduct of the 2000 Census" were made and after the actual count has occurred, meaning that a ruling in Utah's favor would necessitate a complete recount, the motion said.
The North Carolina brief cited a 1992 Supreme Court ruling that upheld the Census Bureau's limiting the overseas count to federal employees. The court called a count of all Americans living abroad "infeasible" and ruled that limiting the scope of the overseas count eliminates the risk of a biased count that would distort the congressional apportionment.
The federal government is arguing that the Census Bureau has discretion to count only military personnel and not missionaries or other civilians overseas and that federal employees are the only subset of the population overseas that can be counted accurately. The bureau also argues that the military population overseas is a "representative sample" of the entire population living overseas.
"They say they've counted everyone that works for the federal government and that's good enough," Lee said. "But that's against what the framers of the Constitution had in mind."
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