SALT LAKE CITY -- Lawyers for North Carolina and Utah squared off in a federal courthouse here Wednesday, with both sides arguing that quirks in the U.S. Census Bureau's count of overseas citizens should entitle their state to a new seat in Congress.
Representing North Carolina, Deputy Attorney General Tiare Smiley said the Census Bureau acted reasonably when it decided to add federal employees living abroad to states' 2000 population figures -- and to ignore other Americans overseas, including Mormon missionaries.
"I think what you have here is a work in progress," Smiley said, suggesting private citizens temporarily living overseas could be included in future censuses if the bureau developed more accurate ways to count them.
But lawyers for Utah argued it was fundamentally unfair to count just one segment of the overseas population and ignore others.
They want the Census Bureau to either count the state's more than 11,000 missionaries -- or not count any overseas citizens at all. Either scenario, they say, would give Utah the new congressional seat awarded to North Carolina.
A three-judge panel hearing the case peppered lawyers for the Census Bureau and both states with pointed questions but gave no clear indication of how or when it might rule.
North Carolina was granted a 13th House seat in December based upon a population count that included more than 18,000 overseas federal employees, including military personnel.
In their lawsuit, Utah officials contend that if its Mormon missionaries were counted, Utah would have been given a fourth seat instead.
In questioning the lawyers, the judges seemed skeptical of adding only Mormon missionaries to the count.
Judge Stephen Anderson noted that "Utah's a very unusual state" because of its high concentration of Mormons and that North Carolina had produced an affidavit showing there are 5,000 Southern Baptist missionaries with roots there.
Anderson said it would be "wildly haphazard" to allow groups to start coming forward this late in the process with citizens they want counted.
He suggested the only practical remedy worth considering would be to exclude all overseas citizens, including federal workers.
But lawyers for North Carolina and the Census Bureau cited a 1992 U.S. Supreme Court decision that said such workers could be included in states' population counts at the discretion of the secretary of commerce, who oversees the Census Bureau.
"There is no reason on this record to exclude this group," said Rupa Bhattacharyya, a lawyer for the Census Bureau.
Tom Lee, a Brigham Young University law professor representing Utah, countered that the 1992 decision does not require the bureau to count any overseas citizens.
Nor does the ruling keep the bureau from counting other identifiable groups, Lee said. He argued that Mormon missionaries are just as easy to count as federal workers. "What's good for the goose is good for the gander," he said.
At one point, Judge Dee Benson appeared to sympathize with that argument. He posed a question about a hypothetical Utah family that has two sons in Germany, one on a military assignment and one on a Mormon mission. Why should the Census Bureau count one but not the other, he asked.
Smiley said that federal workers could be considered different, because they are often sent overseas without any choice.
She also argued it would be unfair to include additional groups of overseas citizens that might benefit selective states. Including citizens temporarily stationed in Saudi Arabia, for example, would probably benefit oil-producing states, Smiley said. And including citizens living in Canada would probably benefit northern border states.
Lawyers for both states emphasized the need for a quick ruling. In North Carolina, the legislature is already in the preliminary stages of drawing new districts.
The three-judge panel that conducted Wednesday's 2 1/2 hour hearing consisted of a judge from the 10th U.S. Circuit Court of Appeals and two federal District Court judges. Their ruling is likely to be appealed directly to the U.S. Supreme Court.
Washington correspondent John Wagner can be reached at (202) 662-4380 or firstname.lastname@example.org