Who Gets Counted? A New Census Rule Could Reshape Congress
If you've been following the mail-in voting fight or Maryland's redistricting battle, this one is the piece that ties them together. Apportionment is the process that decides how many of the 435 seats in the House each state gets, before anyone even starts drawing district lines. Change who gets counted, and you change how much political power a state has for the next ten years, regardless of how any districts inside that state get drawn. Maryland isn't a small player here either, roughly 1 in 6 Maryland residents, about 1.1 million people, are foreign-born.
FIRST: HOW DOES CHANGING WHO'S "COUNTED" CHANGE POLITICAL POWER?
The Constitution fixes the House at 435 seats. Every ten years, the census counts how many people live in each state, and those 435 seats get divided up based on each state's share of the total population. It's a fixed pie, cut into slices based on population.
WHAT HAPPENED
Since the first census in 1790, every count has included everyone living in the country, citizens and noncitizens alike, for the purpose of dividing up House seats. The Constitution's 14th Amendment says apportionment is based on "the whole number of persons in each state," not "citizens."
2019: The Supreme Court blocked President Trump's first-term effort to add a citizenship question to the 2020 census, ruling that the administration's stated reason for wanting it was "contrived."
July 2020: Trump signed a memorandum directing that undocumented immigrants be excluded from that year's apportionment count. The effort never took effect before the 2020 count was finalized.
January 2021: The incoming Biden administration revoked that memorandum on its first day in office.
August 11, 2026: An early draft of a new rule on this same subject leaked to reporters. It was not yet official or public.
September 9-10, 2026: The Census Bureau made its proposal public and published it in the Federal Register. The rule would exclude both undocumented immigrants and legal immigrants without a green card from the population counts used for congressional apportionment starting with the 2030 census. It would also eliminate the census's race, ethnicity, and sexual orientation questions, and could add a citizenship question to the form.
September 17, 2026 (today, still developing): The public comment period is open, closing October 13, 2026.
WHAT SUPPORTERS SAY
The administration argues that the Constitution's "whole number of persons" language was never meant to include people without a lawful, durable connection to the country, saying undocumented immigrants aren't "true inhabitants" with a "usual residence" here in a constitutional sense. They frame the change as restoring "fidelity to the Constitution" and say only people with a genuine, permanent tie to the U.S. should count toward how political power is divided. On the demographic questions, they argue that collecting race and ethnicity data does nothing to serve the census's core job, a headcount for apportionment, and that dropping those questions would protect respondents' privacy and improve response rates.
WHAT CRITICS SAY
Critics point out that every census for over 230 years has counted everyone living in the country, and that the 14th Amendment's actual text says "persons," a word choice they argue was deliberate and specific. They warn this would break with that entire history and shrink both political representation and federal funding, tied to census counts and worth $2.8 trillion a year nationally, for states with larger immigrant populations. Data advocates separately warn that losing race and ethnicity questions would blind public health researchers and civil rights enforcement, block-level race data is exactly what's used to prove discrimination claims in redistricting lawsuits, the same kind of claim that struck down Maryland's own congressional map back in 2022. Critics also note the administration hasn't estimated how many House seats might actually shift under this rule, past research has only modeled excluding undocumented immigrants alone, not this rule's broader group of anyone without a green card.
WHAT WE DON'T KNOW YET
How many House seats would actually shift if this rule takes effect, since the administration hasn't provided an estimate and this rule is broader than anything previously studied. Whether Maryland's own congressional delegation could be affected, given how large a share of its population is foreign-born. What happens after the comment period closes on October 13, legal challenges are widely expected. And whether a future administration reverses this rule again before 2030 actually arrives, the same way Biden reversed Trump's first attempt in 2021.
WHAT YOU CAN DO
- Submit a public comment before October 13, 2026. We built a tool that writes the comment for you (pick detailed or plain language wording, add your name) and links straight to the docket: goodtroublecircle.org/census-comment-tool. The rule is Docket No. USBC-2026-0628. More than 900 comments are already in, yours can be too.
- Share this with others. A 30-day comment window is short, and this affects political power and federal funding for a full decade.
- Check back on this tracker as the comment period closes and legal challenges develop, we'll keep this updated.
