Utah is now challenging the Census Bureau's domestic census count in addition to its overseas count in the lawsuit against the federal government attempting to gain a fourth representative.
On Friday morning, Utah filed an amendment to its federal lawsuit against the bureau, adding to it a claim that the bureau used illegal statistical estimates instead of actual numbers in portions of the 2000 Census count.
"If the Census Bureau had limited its apportionment count to those persons actually enumerated, and had not unlawfully supplemented that count with statistical estimates, Utah would have been entitled to a fourth seat in the U.S. House of Representatives," reads the motion for amended complaint.
The original complaint, filed Jan. 10 by Gov. Mike Leavitt, members of the Utah Legislature and other state leaders, focuses on the argument that the Census Bureau acted contrary to the Constitution when it arbitrarily counted only federal employees living abroad but not other groups, including LDS missionaries.
"Those claims are still on the table," said Utah's lead counsel, Tom Lee. "We've found, so to speak, another arrow in the quiver . . . both arrows are strong."
According to a 1999 U.S. Supreme Court ruling, the reapportionment census count, which is used to determine how many U.S. House seats are assigned to each state, must be a count of actual persons and can't involve any guessing or scientific adjustment. The court ruling indicated the count must be completed either by a mailed questionnaire, personal visit or telephone call.
But the bureau did use a statistical sampling technique called "imputation" in the 2000 count, something that was "absolutely" against the law, Lee said.
During the 2000 Census count, when a household did not return its census form and no one could be located in that household, census enumerators sometimes used "imputation" to make a guess of how many people lived there, based on other households in the neighborhood.
"We can all, from our own experience, determine how accurate that would be in our own neighborhoods," said Ray Hintze, chief deputy in the Utah attorney general's office.
Statisticians discovered this week that the imputation practice adversely affected Utah's count and bolstered North Carolina's, even though imputation was used only in about .5 percent of the population. Utah and North Carolina were so close that it tipped the balance, giving North Carolina the seat, Hintze said.
The team of attorneys representing Utah in the lawsuit had suspected the bureau used some sampling in its count, but that claim wasn't verified until this week. Rep. Chris Cannon, R-Utah, who was recently placed on the House Subcommittee on the Census, helped provide that information for Utah.
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.
Utah's 11,176 residents who were serving LDS missions in foreign countries on April 1, 2000, the official date of the count, were left out, and the state filed a lawsuit against the federal government in an attempt to take back representation that Utah attorneys say rightfully belongs to the state.
Attorneys for Utah, North Carolina and the Census Bureau made arguments in the case before a three-judge panel at Moss Courthouse in Salt Lake City on March 28. Utah is asking the court to either force the bureau to count all U.S. civilians living overseas that are "similarly situated" to military personnel, including LDS missionaries, or to exclude military personnel from the count.
Utah attorneys don't yet know whether the court will accept their amendment or whether the new argument will require another hearing.
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