Texas has asked the Supreme Court to rule that the federal government may not fill gaps in the census with statistical estimates, in a case that turns on how many seats Texas holds in the U.S. House.
Attorney General Ken Paxton signed the brief with the Attorney General of Florida on September 17, filed in University of South Florida College Republicans v. Lutnick, No. 26-205, in support of the appellants. The appellants argue that the Census Bureau’s use of imputation, a method that assigns residents to housing units the Bureau could not count directly, violates the Constitution’s requirement that the census be conducted by “actual Enumeration.” A three-judge district court in Florida entered judgment against them on July 7. The appeal went to the Supreme Court in August.
The two states put the constitutional argument this way: “To safeguard apportionment, the Framers required that the census be conducted by actual enumeration,” and the words were chosen because “Estimations, inferences, and statistical extrapolations left too much room for manipulation.” The brief asks the Court to step back from Utah v. Evans, the 2002 decision that allowed imputation, and calls that ruling “an erroneous departure from the original meaning of the Census Clause.”
The brief says Florida and Texas both lost House seats in the 2020 count that they should have gained, and points to the Bureau’s own post-count analysis to argue that the states with the largest uncounted populations were not the states that benefited most from imputation. Texas, it says, received a 3.5 percent imputation rate while 7.6 percent of its population went uncounted. Those are the amici’s characterizations of the Bureau’s figures, and the Supreme Court has not ruled on any of it.
Apportionment turns a headcount into political weight. The 2020 census put the Texas apportionment population at 29,183,290 and gave Texas two additional seats, for a delegation of 38. Every one of those seats, and the electoral votes that follow them, rests on a number produced by a federal agency. Texas does not run the count and does not choose what happens to the housing units it misses. Texas receives the result and lives under it for ten years.
Whatever the Court does with this case, Texas has to ask nine federal judges to require a federal agency to count its people by counting them. The request is reasonable. It is also the entire remedy available. If the Court says no, Texas has no further recourse, because it has no authority over the census that sets its representation and no way to audit the result except through the same federal courts.
A state that cannot verify how its own people are counted is not deciding how much voice it has. Someone else is deciding, and Texas is asking politely.
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