Utah census suit puts another recount battle in court

Wednesday, February 28, 2001

At least this demand for recount can’t be blamed on the news media.

Unlike the Florida fiasco, which some still claim was caused by the television networks’ premature projections, the latest recount litigation doesn’t involve exit polling, pregnant chads or butterfly ballots. Instead, it involves missionaries, military personnel and the First Amendment. And to the people of Utah and North Carolina, the stakes are considerably higher than a single presidential election.

At stake is a seat in the U.S. House of Representatives, which was awarded to North Carolina when the Census Bureau announced the results of the 2000 census. Utah, which missed out on the seat by 857 citizens, cried foul. The Census Bureau, it said, unconstitutionally ignored more than 10,000 Mormon missionaries living overseas.

According to the lawsuit filed by Utah Attorney General Mark Shurtleff, the Census Bureau violated the First Amendment when it counted federal employees living outside the country but refused to count missionaries. The Census Bureau’s policy, the state argues in its lawsuit, “burdens religion by putting prospective missionaries to a Hobson’s choice between religious service and benefits, including in this case an additional congressman, that their continued presence in the state would create.”

The numbers are in Utah’s favor. Before citizens living abroad were counted, Utah led North Carolina by almost 14,000 people. North Carolina, however, is “home” to nearly 15,000 more federal employees living abroad than Utah. When those employees were counted, North Carolina eked out its slim margin. Had Utah’s Mormon missionaries been counted, Utah easily would have won the additional seat.

The law, however, appears to favor North Carolina. Although announced by a divided U.S. Supreme Court in 1990, the applicable law appears to be the holding in Employment Div. v. Smith: Neutral laws and policies of general applicability may be constitutionally applied to religious practices, even if those laws and policies burden the free exercise of religion.

The Census Bureau’s policy appears to satisfy this test. While it undoubtedly penalizes Mormons for practicing a central tenet of their religion, the policy — which prohibits the counting of all nonfederal employees living abroad — is neutrally applied to all states and all religions.

Had this issue arisen before the decision in Smith, Utah would have had a much stronger case. Before Smith, courts usually applied the balancing test set forth in 1963 in Sherbert v. Verner, which asked whether the law or policy at issue substantially burdened a religious practice and, if so, whether the burden was justified by a compelling governmental interest.

Under this test, Utah might have been able to show that the Hobson’s choice it complains of substantially hindered Mormons in the practice of their religion. Had this showing been made, the Census Bureau then would have borne the burden of demonstrating that the government has a compelling interest in excluding Mormons and others living overseas from the count. While such an interest might exist if all citizens living abroad were excluded, the government likely could not have shown a compelling interest in counting some living abroad but not others.

Utah also likely could have prevailed if the Religious Freedom Restoration Act of 1993 were still law. RFRA, passed in direct response to the decision in Smith, sought to strengthen and restore the Sherbert balancing test. Under RFRA, a law or policy could not substantially burden the free exercise of religion unless it furthered a compelling governmental interest and was the least restrictive means of furthering that interest. In the 1997 case City of Boerne, Texas v. Flores, however, the Supreme Court struck down RFRA, holding that Congress did not have the power to enact it.

Utah’s lawsuit will be tried before a three-judge federal district court panel in Salt Lake City on March 20. In that trial, the Census Bureau likely will cite the difficulty in counting nonfederal employees living abroad and the fact that attempts to count private citizens living overseas in 1960 and 1970 produced substantial undercounts. Utah, on the other hand, likely will claim that the Mormons’ database of missionaries would have made it easy for the Bureau to count the missionaries and that it was arbitrary and discriminatory for the Bureau to refuse to do so.

However the district court panel decides, the case likely will end up before the Supreme Court. And while it is unlikely the Supreme Court’s decision will trigger the breathless, live reporting from the courthouse steps that its last recount decision did, this ruling probably will similarly dash the hopes of those seeking another count.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.

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