ROANOKE TIMES 
                      Copyright (c) 1996, Roanoke Times

DATE: Thursday, January 11, 1996             TAG: 9601110123
SECTION: NATIONAL/INTERNATIONAL   PAGE: A-2  EDITION: METRO 
DATELINE: WASHINGTON
SOURCE: Associated Press 

FLAWED CENSUS ON TRIAL JUSTICES DEBATE LOW MINORITY TALLY

Declaring the true U.S. population ``perhaps unknowable,'' the Clinton administration asked the Supreme Court on Wednesday to leave the 1990 census alone despite an admitted undercount of minorities.

The most recent count was ``the most well-organized and most thorough census in history,'' said Solicitor General Drew S. Days III, adding that courts should defer to the government's decision on how to conduct the census as long as it is reasonable.

But Robert S. Rifkind, the lawyer for New York City, Chicago, Los Angeles and other local governments that challenged the census, said the minority undercount violates their right to equal representation. Courts should give less deference to government actions when a fundamental right is involved, he said.

Census undercounts ``persist decade after decade, falling in the same places,'' Rifkind said. ``It has a very distinct sense of unfairness.''

Most of the justices clearly were skeptical about Rifkind's argument.

Justice Antonin Scalia noted that the Constitution ``says actual enumeration'' in its requirement that the government conduct a census every 10 years.

Referring to the adjustment in census figures sought by Rifkind, Scalia added, ``It isn't clear to me that that constitutes an actual enumeration.''

Chief Justice William H. Rehnquist said the Constitution gives Congress ``great discretion'' in deciding how to conduct the census and Congress has turned over that authority to the secretary of commerce.

``The idea that you decide all over again in district court whether the secretary of commerce was right or wrong, I don't think is supported,'' Rehnquist said.

Justice David H. Souter suggested the government may have decided to stick with its normal census count to avoid the risk of political manipulation that could result from an adjustment.

Census figures are used to draw congressional and state election districts and to distribute federal financial aid. Adjusting the 1990 results would cause Wisconsin to lose one member of the House and California to gain a member.

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