Draft Census Rule Could Redraw Political Power by Excluding Non-Citizens and Dropping Race Data

The Department of Commerce, which oversees the U.S. Census Bureau, is circulating a draft notice of proposed rulemaking that would exclude broad categories of non-citizens—including undocumented immigrants, foreign students, and many H-1B visa holders—from the resident count used for congressional apportionment in the 2030 Census, and eliminate the collection of race and ethnicity information for the first time since the nation’s first census in 1790. The proposal is being reviewed within the Trump administration.

Talking Points Memo

The Constitution’s Fourteenth Amendment requires that “persons” be counted for apportionment, a mandate the Census Bureau has interpreted to include all residents, regardless of citizenship. During the first Trump administration, officials sought to add a citizenship question to the 2020 Census; the Supreme Court struck that effort down in a 5-4 decision, finding the rationale “contrived.” Far-right advocacy groups aligned with former officials have continued legal challenges to the inclusion of non-citizens. A September 2025 lawsuit filed by America First Legal—co-founded by former White House deputy chief of staff Stephen Miller—was dismissed with prejudice, and the group is now seeking Supreme Court review.

Talking Points Memo

• California estimates 1.9-2.1 million long-term undocumented residents, a concentration most affected by the rule.

Talking Points Memo

• States with relatively few undocumented residents—parts of the Midwest, Utah, Idaho, and Montana—would see little impact on their apportionment totals.

Talking Points Memo

Excluding non-citizens would reduce the population counts of states with large immigrant communities, potentially shifting congressional seats from traditionally Democratic-leaning “blue” states to Republican-leaning “red” states. Removing race and ethnicity data would deprive civil-rights groups of a key evidentiary tool for challenging racially discriminatory voting maps. The Roberts Court’s recent narrowing of the Voting Rights Act already requires plaintiffs to prove discriminatory intent; without census-based demographic data, establishing that intent becomes exceedingly difficult, according to experts.

Talking Points Memo

The draft regulation cites privacy protection as a primary motivation for ending race and ethnicity collection, aligning with a recent Commerce Department rule that bans certain statistical disclosure-avoidance techniques. The White House and the Department of Commerce have not responded to repeated requests for comment.

Talking Points Memo

Demographic scholars and civil-rights advocates argue the rule would undermine public health, safety, and community planning by stripping away essential data. Meeta Anand, senior director of census and data equity for The Leadership Conference on Civil and Human Rights, called the abandonment of race data “shocking,” noting that such data have been collected since 1790 to comply with redistricting laws. Walter Schwarm, a California state demographer, warned that the loss of race statistics would make it “exceedingly difficult to prove” racial gerrymandering under the current legal standard.

Talking Points Memo

The draft rule’s language is publicly available, but the administration’s rationale beyond the stated privacy concern remains undocumented. No official comment has been provided by the White House or the Department of Commerce, leaving a gap in the public record regarding broader policy objectives.

Talking Points Memo

The proposed rule is subject to a notice-and-comment period under the Administrative Procedure Act. If finalized, the changes would be implemented for the 2030 Census, affecting the apportionment of congressional seats and the availability of demographic data for future redistricting and civil-rights litigation.

Talking Points Memo