Utah may be asking for the impossible by requesting that the U.S. Census Bureau count both missionaries for the LDS Church and other "similarly situated" overseas civilians, said the presiding judge at a hearing Wednesday on the state's census complaint.
U.S. 10th Circuit Court Judge Stephen H. Anderson made that comment after a lawyer for Utah argued that residents who are overseas serving missions for The Church of Jesus Christ of Latter-day Saints should count as part of the 2000 Census. If the 11,000 missionaries were added, the state would earn another congressional seat.
In the alternative, Tom Lee, representing the state, asked that the court tell census officials to discount all overseas military personnel from all states.
"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.
The federal appeals court appointed a three-judge panel — consisting of Anderson and U.S. District Judges Dee Benson and David K. Winder — to hear the case. Arguments by the Census Bureau and the state of North Carolina were expected later Wednesday. No ruling is expected for a week or two.
In December, when the 2000 Census apportionment figures were released, North Carolina beat out Utah by 857 people to gain another congressional representative. That state had more than 18,000 military personnel who were counted overseas, while Utah had fewer than 4,000.
Gov. Mike Leavitt, members of the Utah Legislature and other state leaders filed a lawsuit against the bureau Jan. 10 claiming it was discriminating by excluding 11,176 Utah residents who were serving LDS missions overseas on April 1, 2000, the official date of the Census count. North Carolina intervened in the lawsuit in an attempt to protect its newly apportioned house seat from going to Utah.
Attorney Mike Lee, brother of Tom Lee, said earlier this month that statisticians have analyzed the numbers to make sure the state would still gain a seat if missionaries and civilians from every state were counted. About 100 LDS missionaries serve abroad from North Carolina, he said, and if the bureau were to count every U.S. resident living overseas, including corporate employees, representatives from other religions and military personnel, Utah would still stand to gain a representative.
One of the federal government's main arguments for counting only military personnel and not missionaries or other civilians overseas has been that it is the only subset of the population overseas that can be counted accurately. The Census Bureau has also said that the military population overseas is a "representative sample" of the entire population living overseas.
To try to count all others who are overseas and still have ties to their home states would essentially require a recount, according to the judge. It would be "wildly haphazard," he said.
Anderson said he has received word of 5,000 Southern Baptists serving abroad from North Carolina, plus 5,000 students who live abroad. Other groups like the Red Cross, Jehovah's Witnesses and even Rastafarians might come forward, he added.
"The question is whether the Census Bureau acted lawfully by counting only a narrow segment of all Americans living overseas," Lee said. That segment is "only those who happen to work for the federal government."
Some possibilities for inclusion, according to Utah's written brief, are those who served one year or more in religious or humanitarian services for which good records exist; those who are temporarily absent from their states of residence; those who are overseas for predetermined periods; and those who still have close ties to their home states.
"You've got the Board of Census here. What guidance would you give them?" Anderson asked Lee.
"It may not be possible to count all of them," Lee said, referring to all Americans overseas.
At another point, Anderson commented, "There's a long history of the Census Bureau attempting to count people abroad."
He wondered whether this approach was "leading us down a trail . . . where there is no ending."
When the first round of Utah's battle against the Census Bureau is over, it's likely to move on to the U.S. Supreme Court. Utah's attorneys requested the three-judge panel in the case so any appeal could go directly to the Supreme Court and the case could move as quickly as possible.