Draft paper by Nate Persily: The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them

SSRN:

"Perhaps unintended and unimagined by the Framers, however, is the rhythmic and ritualistic dance to the courtroom every ten years to argue over the census numbers themselves and the methods used to construct apportionment totals.

This Article examines the law of the census: specifically, how to count, what to count, whom to count, and where to count them. For the most part this Article draws on my experience and research concerning the use of census data in the redistricting process; however, many of the topics discussed apply to federal funding decisions as well. The Article begins by describing the most recent legal controversies involving census methods, particularly imputation and statistical adjustment. When one thinks of the “law of the census,” these high-profile disputes probably come first to mind. In cases that have arrived at the Supreme Court at the beginning of each of the last three census cycles, undercounted cities and states have argued that census methods were deficient in that the procedures missed some people, double-counted others, or counted people that did not exist."