READ: A New Draft Rule for the Census Seeks Sweeping Changes to How Political Power Is Allocated

The Trump administration is planning to dramatically reshape the data the Census Bureau collects, setting the stage for an audacious effort to curtail crucial information used in voting rights complaints and revive a right-wing effort, pursued in Trump’s first term, to exclude undocumented immigrants from the count used to determine how many members of Congress represent each state in Congress. 

TPM has obtained a draft of a notice of proposed rulemaking from the Census Bureau that is being circulated within the administration. The proposed rule, under consideration by the Department of Commerce, attempts two things: to exclude broad categories of noncitizens from the count in the 2030 Census, and to eliminate the collection of race and ethnicity data for the first time since 1790. 

Wired first reported the draft rule’s existence. 

It’s the latest move in the GOP’s decade-long push to use the census for a partisan end: diminishing political power in blue states while boosting representation in red ones. To achieve that goal, the Trump administration is seeking to exclude undocumented immigrants and other categories of noncitizens from the 10-year census count, chipping away at the census-recognized population that forms the basis for the size of congressional delegations. This isn’t the first time this has been tried: During Trump I, the Supreme Court struck down the Census Bureau’s attempt to skew the population count by adding a citizenship question to the 2020 Census. 

Now, a more sophisticated Trump administration is setting the stage to renew this attempt to shift a structural element of American politics in its favor. Experts who spoke with TPM believe this proposed regulation is only step one.

“This feels like an attack against the American public,” Beth Jarosz, a senior fellow in demographic and socioeconomic analysis at the Georgetown University Massive Data Institute, told TPM after reviewing the draft rule. “It removes critical data that are used in so many different aspects in public life to understand our communities and to make sure that our communities are healthy, and safe, and prospering.”

Trump’s Census Bureau wants to redefine how the census tracks where people live. In 2020, a person’s “usual residence” was “the place where they live and sleep most of the time.”  To exclude some noncitizens, the draft reviewed by TPM narrows the definition of a person’s usual residence to something “consistent with, and evidenced by, their tax records.”

Lawful permanent residents, “approved asylees” and “approved refugees” would still be counted at their defined U.S. residence. “All other citizens of foreign countries,” the draft states, would not be counted at all. That would exclude undocumented immigrants, but also foreign students, H1-B visa holders, and many others from the count. 

In prohibiting the collection of race and ethnicity data, the Census Bureau regulation proposal cuts off a key source of data that plaintiffs can use to make claims of racial voter dilution under the Voting Rights Act. After the Supreme Court gutted the VRA in April, groups have to prove intent to discriminate to prove that their votes have been illegally diluted. Depriving the public of reliable data about where racial groups live would make winning those claims nearly impossible, advocates said. 

The White House and Department of Commerce didn’t return repeated requests for comment. 

Proposed Changes Would Likely Give Red States More Political Power 

This proposed regulation is the latest in a series of actions taken by the second Trump administration to accomplish what its allies hope will rebalance electoral power away from blue states and towards conservative ones.

The administration, as well as far-right groups aligned with administration officials, have long argued that the census count of noncitizens required by the Constitution necessarily skews congressional apportionment in favor of blue states, which they describe as having more immigrant-friendly laws and policies and which are in many cases home to larger immigrant populations. Proponents of excluding noncitizens from apportionment have pressed their case for years, seeking, so far unsuccessfully, to make the change a reality through the federal government, state legislatures and the courts. 

Though the documents reviewed by TPM did not yet call for it, experts said the draft rule would inevitably necessitate a repeat of what the first Trump administration attempted for the 2020 Census: a question asking whether the respondent is a U.S. citizen. That effort failed after the Supreme Court struck it down in a 5-4 decision, with Chief Justice John Roberts finding that the Trump administration’s rationale for including the question was apparently “contrived.” That ruling also came after a trove of records from a dead Republican strategist were released detailing how the party came to understand that systematically undercounting immigrants — who are concentrated in large, Democratic-leaning cities — could dramatically diminish blue states’ representation in Congress. The documents showed how party strategists, having made this realization, used it to help draft the question. 

“I think the difference this time is that in Trump I, when they tried to add a citizenship question, they had missed certain really important steps in the process, and that’s ultimately why it was struck down,” Jarosz said. “They’re doing all the process steps this time so there isn’t going to be a process argument.”

Far-right advocacy groups founded by Trump administration officials have spent the better part of a year organizing legal challenges to the Census Bureau’s inclusion of noncitizens in the total population enumeration used for apportionment, as required by the Constitution’s Fourteenth Amendment. A September 2025 lawsuit filed by America First Legal, which was co-founded by White House deputy chief of staff for policy and homeland security Stephen Miller, sought to overturn the 2020 Census completely. That suit was dismissed with prejudice by the U.S. District Court for the Middle District of Florida in July. America First Legal last week asked the Supreme Court to hear its appeal of the dismissal.

The draft rule obtained by TPM rehashes a legal argument made in that case. Though an antebellum clause in the Constitution used the word “persons” to describe the people who should be counted for apportionment, the draft argues that the term “persons” was used to include enslaved Black people under the Three-Fifths Compromise, who didn’t enjoy citizenship rights. The Fourteenth Amendment modified the original clause but left the idea of “counting the whole number of persons” in place, the draft rule’s authors note. They then argue that the antebellum meaning of “persons” really corresponds to “inhabitants” — those who form part of the “body politic,” not the literal meaning of “the whole number of persons” in a given area.

Experts who spoke with TPM said the administration faces an uphill legal battle over its widely rejected interpretation of the constitutional requirements for counting people living in America.

“The better reading of the Fourteenth Amendment is that the Fourteenth Amendment knows how to use the word citizens when it means citizens and knows how to use the word persons when it means all persons, which is a broader category than citizens,” Meeta Anand, senior director of census and data equity for The Leadership Conference on Civil and Human Rights, told TPM after reviewing the draft rule.

If the new Census Bureau rule is adopted, its impacts would diminish political representation most in blue states with large undocumented immigrant and legal student and worker immigrant populations like California, New York and Illinois, Walter Schwarm, a California state demographer, told TPM. By the state’s most recent estimates, between 1.9 million and 2.1 million long-term undocumented residents live in California.

“Those states that have few undocumented populations, certainly large swaths of the midwest, parts of Utah, Idaho, Montana, have very few,” Schwarm told TPM after reviewing the draft rule. “So in some ways, it’s probably a net-red benefit on that one if the undocumented don’t count in the apportionment process.”

After a vague Commerce Department policy proposal released in June suggested changes to how the census collects data about where people live, experts had expected the administration to attempt to include a question about a person’s residency on the 2030 Census in an attempt to prohibit certain noncitizens from listing American addresses. This question is separate from, but would be used in concert with, a question about citizenship and immigration status, which experts believe could be forthcoming.

Draft Rule Would Make It ‘Exceedingly Difficult’ to Fight Racist Voting Maps

Experts, who remember well Trump’s first attempt to introduce a citizenship question, were largely unsurprised to see Trump II renew the failed effort from Trump I. But the proposal to abandon race and ethnicity data entirely caught them off guard.

“To see a proposal that race and ethnicity data not be collected at all when, in fact, some demographic data has been collected since the first census in 1790 is a bit shocking,” Anand told TPM.  

Trump officials had already signaled that they would scrap a plan for updated race and ethnicity collection requirements in the 2027 American Community Survey (ACS). But the draft removes block-level race and ethnicity collection from the decennial census, a move that experts described as unprecedented. It could remove critical data that advocates use to claim racial gerrymandering, they said. 

“In every decennial census the U.S. has ever conducted,” Jarosz said, “we have asked about race in some way, and we do it in large part in order to comply with laws like redistricting.”

No longer collecting race and ethnicity data would make it “exceedingly difficult to prove” any kind of racial gerrymandering in the drawing of congressional legislative districts, Schwarm said.

The Roberts Court’s gutting of the federal Voting Rights Act requires injured parties to prove intent to discriminate to overturn new district maps, a hurdle which legal and redistricting experts are already finding much more difficult to clear. Ending the collection of race in the decennial census would further complicate disenfranchised groups’ ability to challenge racially discriminatory voting maps. 

“You have to prove discrimination, you have to prove the fact that you have been discriminated against. But if you don’t have race and ethnic data on the ground, how can you prove that you’re being discriminated against?” Schwarm said. “Because there’s no statistic that tells you how many are actually in this district or not.”

It would also hamstring enforcement for the states which, like California, have their own voting rights acts.

The draft regulation obtained by TPM claims one motivation for scrapping the collection of race and ethnicity data is a desire to protect individual respondents’ privacy, an assertion that plays into changes already underway at the Census Bureau. The Commerce Department recently imposed a new internal rule banning an umbrella of statistical privacy protection tools called disclosure avoidance. Federal law requires the Census Bureau to protect the individual identities of everyone who participates in their surveys and censuses. The rule, now in place at the Bureau, reduces the tools staff can use to protect that privacy to two less sophisticated approaches that will make it impossible to publish entire data sets at all, and will make the data that the bureau can publish much less granular.

Read the documents obtained by TPM: