Utah loses attempt to add congressional seat

Associated Press WriterWASHINGTON (AP) -- Utah lost a Supreme Court appeal Monday in the state's fight to wrest a congressional seat from North Carolina, which came out 856 residents ahead of Utah in the 2000 Census.

The court, without comment, rejected Utah's request to decide whether it is constitutional to include some Americans living abroad in the national head count, while excluding others. Utah claims it was cheated out of a congressional seat because the Census did not count thousands of state natives serving as Mormon missionaries overseas.

The Census Bureau only counts people living overseas if they are in military or government service.

The counting method does not live up to the Constitution's requirement for an "actual enumeration," and discriminates among people based on what kind of work they do, Utah's governor argued to the high court.

The method could also be an unconstitutional government intrusion on religion, because Mormons who know they will be excluded from a Census count may avoid overseas missionary work, the state's appeal argued.

In the formula used to determine House seats, Utah lost out to North Carolina, another fast-growing state. The figures gave North Carolina it's 13th seat and left Utah with three.

The Bush administration asked the court to dismiss the case, or to uphold a lower court's ruling against Utah.

The Supreme Court took the latter option without comment.

The Supreme Court has already ruled that it is constitutional to count federal employees working overseas, but that 1992 case left open the question of how to treat other Americans living abroad.

Utah sued in January, asking that the Census Bureau either be forced to include Mormon missionaries, or forced to exclude the federal employees. Either outcome would likely have given the state the additional congressional seat. North Carolina joined the Census Bureau as a defendant.

A special three-judge panel ruled in March that forcing the Census Bureau to include Mormon missionaries would skew the count, because a disproportionate number of them would hail from one state. That would lead to challenges from other groups of Americans temporarily living overseas, such as students or corporate employees, the court said.

The court also said that Utah had not showed that census concerns really deterred any missionaries from participating in overseas work.

In its appeal to the Supreme Court, Utah argued that the Census Bureau should not give federal employees special status just because they are doing their country's bidding abroad.

The practice also opens the door to partisan mischief, Utah claimed.

"Indeed, if the bureau may isolate the federal employee segment of the overseas population on the ground that it deems it politically or patriotically appropriate to do so, then other more blatantly partisan decisions to enumerate different segments of the population may logically follow," the state lawyers argued.

The Bush administration countered that the Census Bureau had studied various options for counting overseas Americans, and concluded that any attempt to count more than federal employees would lead to inaccuracies and the likelihood of court challenges.

An estimated 5 million Americans were living overseas at the time of the 2000 census. About 11,000 were Mormon missionaries from Utah, where the church is based.

Utah has lost several court challenges arising from the 2000 census. Besides this appeal, the state plans to ask the Supreme Court to review a separate case challenging the practice of estimating a household's population based on that of its close neighbors. The practice is a last resort if census workers cannot get firsthand information.

The overseas missionary case is Utah v. Evans, 01-283.