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Since New Jerseyan U.S. Supreme Court Justice William Brennan wrote the landmark opinion in Baker v. Carr some 40 years ago, the mantra for political democracy in this country has been "one person one vote." That means that electoral districts for Congress or other legislative bodies should be of approximately equal size in population.
Prior to Baker v. Carr, it was fairly common for districts to be vastly malapportioned. For example, in New Jersey, each county elected one member to the State Senate.. That meant that if Bergen County had twenty times the population of Gloucester County, the votes of Glousterites worth twenty times as much as the votes of Bergenites. Baker v. Carr abolished that inequity.
As a consequence, legislative map-makers who reapportion districts every ten years following the decennial Census are supposed to carve the state into as many equal-sized portions as there are districts in the state. And while the U.S. Supreme Court has allowed deviations in state districts which would not be tolerated on a federal level, such deviations must be justified by a proper purpose -- such as avoiding the subdivision of discrete political units
It should be obvious that in order to carry out its constitutional mandate, a reapportionment commission must know as precisely as possible where people live. Otherwise, the reapportionment process becomes an exercise in guesswork. That's where the census comes in. It is up to the U. S. Census Bureau to provide each state with a picture of its population describing who lives where. Garbage-in-garbage-out is a well accepted accounting principle. If the Census Bureau provides the state's legislative mapmakers with inaccurate data, those mapmakers cannot possibly carry out their jobs properly.
Welcome to the raging national debate over Census "sampling."
Census Bureau professionals and statisticians all over the country have been aware for may years that the Census is less than precise. It misses many people and double-counts others. If those errors occurred randomly all across the population they might cancel each other out. But in fact they don't. There is what the professionals call a "differential undercount." Those not counted tend to be poor urban dwellers, largely members of racial minority groups, plus the rural poor. Predominantly white suburbanites are often counted twice, largely a result of college students being counted both at school and at their parents' homes. After the 1990 census, it was generally agreed that the undercount was as high as eight million, with nearly five per cent of African-Americans and persons of Hispanic dissent having been missed. While Census officials preliminarily estimate that this year's undercount will be lower, they also agree it will still be substantial.
If the undercount goes uncorrected, the result is that the votes of inner city, largely minority residents are diluted - since their representatives will actually be representing more people than their suburban counterparts, as in the old days of State Senate malapportionment. It is what courts refer to as "packing." That means more people are being "packed" into the urban districts and the ability of those populations to influence the outcome of elections in neighboring districts is diminished.
While the Census Bureau in the Clinton Administration was taking steps to correct the undercount by the use of statistical data which would account for the uncounted, Republicans in Congress are now pushing the Bush Administration to scrap that program and release only the unadjusted Census enumeration. The Republicans obviously believe that adjusting the figures can only aid Democratic candidates since it will provide more clout to inner city urban populations by "unpacking" those districts.
Democrats as well as representatives of minority group interests are, understandably, threatening to sue to guarantee that the new Legislature is in fact elected on the basis of one-person-one-vote. And those potential challengers can take heart from a decision by the New Jersey Supreme Court following the 1990 Census.
In State v. Apportionment Commission, New Jersey's highest court noted its "profound concern that should there be any substantial census undercount ... it will be to the disadvantage of the already disadvantaged minority members of our community." The Court went on to say that should the adjusted Census figures reveal a material deviation from the raw data, the State Constitution should be "invoked to remedy the wrong." Should the State Reapportionment Commission ignore the adjusted 2000 Census figure in carrying out its mission, that invitation is likely to be accepted.
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FRANK ASKIN is professor of law and founder of the Constitutional Litigation Clinic at Rutgers School of Law, Newark. He is the author of "Defending Rights: A Life in Law and Politics." (Prometheus Books)
