Department of Commerce v. United States House of Representatives Page 2

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Media for Department of Commerce v. United States House of Representatives

Audio Transcription for Oral Argument - November 30, 1998 in Department of Commerce v. United States House of Representatives

Seth P. Waxman:

The... once the initial enumeration roster is completed by means of the mail in, the non response follow up, which is both physical and sampling, the national vacancy check, which uses sampling to impute population, there will be what's called an initial enumeration roster.

The Bureau will then conduct, much as it did in 1990, but on a much larger, more sophisticated scale, using a completely separate cadre of individuals, it will, on 25,000 blocks of the country, selected in advance according to methodologies that have been specified, survey intensively every single one of those households to determine the extent to which the people show up the second time that weren't identified the first time or were identified the first time and weren't identified the second time.

And any discrepancy in information that any person gives will be the subject of a follow up visit.

The results of that procedure, the inter... integrated coverage measurement, it is in effect a quality check on the initial enumeration roster.

And using the system of dual system estimation that the Court described better in Wisconsin v. City of New York than I could standing here, it will adjust the results of the initial enumeration roster to more accurately reflect the total number of persons in each State, district--

William H. Rehnquist:

So... so you will get the initial returns from the census.

And then you send... send out follow up people to try to contact those who were not contacted.

But then you use this to kind of change the results from that, as I understand it?

Seth P. Waxman:


The in... integrated coverage measurement is a means, a highly reliable statistical means, of correcting for inaccuracies.

That is, improving the quality of the... the results of the initial enumeration roster.

William H. Rehnquist:

How can you know in advance that there are inaccuracies?

Seth P. Waxman:

Justice... Chief Justice Rehnquist, there... every effort to enumerate the population, from the 1790 Census until now, has produced only an estimate of the true population totals in each State.

That's agreed.

That's understood.

We now have the means... the... the Census Bureau and statisticians have developed the means, really beginning in the 1940's and on, to be able to ascertain just how far from the true number the enumeration efforts are... are--

William H. Rehnquist:

But how can you know... but if... if you have this census, which is a very... and it's inaccurate, it doesn't reflect the, quote, true number, how... how do you know what the, quote, true number, close quote, is?

Seth P. Waxman:

--Well, the... I recall that was the... that was the question that was asked of my predecessor in City of New York v. Wisconsin, as the subject of an explanation in the Court's opinion in that case.

And I don't think I can improve upon it.

But the demographers and statisticians have means for very accurately estimating both what the national population is in the country, using something called demographic analysis, and sub national population totals, using a combination of demographic data and the results of prior censuses.

William H. Rehnquist:

Well, why do we need... why do we need a census then?

Seth P. Waxman:

Well, because there... there is a requirement in the Constitution that every 10 years the respective number of persons in each State be determined.

That is the constitutional goal.

And the actualization of that goal is the actual enumeration, which is done every 10 years and which must be done in the means... manner by which Congress directs.


Sandra Day O'Connor:

Well, most people would think that actual enumeration meant a count.

I mean that... that's what immediately springs to mind.

And how do you get around that?

Seth P. Waxman:

--Well, I think it depends how you define... actual enumer... most people would think actual enumeration means a count in the sense of determining the number of persons.

If... if I am told to conduct an actual enumeration of the people in Camden Yards during an Oriole... Orioles game that I'm at, and I'm given 30 minutes, the best means that I may have to do that is by a statistical sampling of some sort, rather than trying to count people one by one.