Utah's attorneys remain optimistic they will prevail in the first round of their lawsuit against the Census Bureau, which aims to have overseas LDS missionaries added to the 2000 count or overseas federal employees left out.
This optimism comes even though judges in Wednesday's hearing essentially rejected the option of adding missionaries to the count because of the problems that could ensue with trying to fairly count other groups as well, leaving the option of excluding federal employees from the count.
The judges' decision could come at any time and will almost certainly be appealed to the U.S. Supreme Court. The judges have no set deadline for making a decision.
After the two-and-a-half hour hearing on Wednesday, which included arguments by Utah, the federal government and North Carolina, which intervened in the case, Utah Attorney General Mark Shurtleff said he thought the state's arguments were strong.
"As far as our arguments compared with others . . . I think our arguments will be the ones that prevail," he said.
Utah's lead counsel, Tom Lee, a Brigham Young University law professor, argued before the three-judge panel at Moss Courthouse that the Census Bureau acted contrary to the U.S. Constitution when it decided to count only an "arbitrary" group of overseas residents in the 2000 Census. The overseas count of military and federal employees, which was added to the resident population for the purposes of reapportioning U.S. House seats, cost Utah a fourth representative, that seat going to North Carolina instead.
Lee asked the court to either exclude the overseas military count or add LDS missionaries and others living overseas because they are "similarly situated" to federal employees.
Missionaries, Lee argued, are serving in foreign countries for a predetermined amount of time and still maintain ties to their home state, just as federal employees do. And The Church of Jesus Christ of Latter-day Saints keeps accurate and updated records, as does the federal government.
"We clearly prevailed in showing they are similarly situated," Shurtleff said.
LDS missionaries may be similarly situated as the military, but presiding Judge Stephen Anderson appeared convinced that the most feasible option may be to discount federal employees rather than try to stage a retroactive recount of all private citizens living abroad on April 1, 2000, the official day of the census.
Utah also argued that the exclusion of LDS missionaries from the count forces them to make a decision between serving a mission or staying home to ensure they are counted. The decision to serve their religion essentially has a penalty in that their vote is diluted when their state doesn't gain its due representation, state lawyers argued.
But attorneys for the bureau argued that there were differences between military and federal employees and LDS missionaries. Records for military and federal employees are kept by the government and can be easily verified, while LDS missionary records are kept by a private entity.
"We can't send people to every country in the world to verify these people's existence," said Rupa Bhattacharyya, an attorney representing the Department of Commerce and the Census Bureau.
Bhattacharyya also said that the other option of excluding federal employees from the overseas count would be diminishing the goal of the Census Bureau to have as accurate count as possible. She repeatedly referred to a Supreme Court decision from a 1992 case that allows for the inclusion of federal employees living abroad in the census.
Although that ruling allows for overseas military and federal employees to be counted, it doesn't require them to be counted, and historically they haven't been except for in the years 1970, 1990 and 2000, Lee said.
No decision is expected for at least two weeks.