Kansas Attorney General Kris W. Kobach (R) is urging the Trump administration to “raise its game” as a key census lawsuit with major implications for congressional power remains stalled in federal court.
Kobach appeared on Ann Coulter’s podcast “Unsafe” on March 21. He sharply criticized the U.S. Department of Justice for dragging its feet in a major lawsuit. Kobach said the Justice Department has repeatedly asked the court for delays (“stay after stay after stay”), which has effectively put the case on hold — or “on ice,” as he put it.
Kobach believes the Trump administration needs to “raise its game” and push harder on this issue.
What the Lawsuit Is About
In January 2025, Kansas and three other states (Louisiana, Ohio, and West Virginia) filed a federal lawsuit in Louisiana. They want to change how the U.S. Census counts people for deciding:
- How many seats each state gets in the House of Representatives
- How many Electoral College votes each state gets
Right now, the Census counts all residents living in the U.S. — including noncitizens (both legal immigrants and illegal aliens).
The states argue that only U.S. citizens should be counted for these purposes. They claim that counting noncitizens gives states with large immigrant populations (like California and Texas) extra political power and federal funding at the expense of states like Kansas.
Current Status of the Case
Earlier in March 2026, a federal judge in Louisiana refused to lift the pause on the lawsuit.
The case remains on hold while the Department of Commerce (which runs the Census Bureau) works on possible new rules for the 2030 Census.
The court said the administration is “actively preparing” new census rules that could “narrow or eliminate issues presented” in the case, and ordered continued status updates through at least November 2026.
Kobach argued that delay risks running out the clock before the next census cycle and called for a definitive ruling from the U.S. Supreme Court rather than regulatory action that a future administration could reverse.
“We need a ruling from the United States Supreme Court saying this is what the 14th Amendment means,” Kobach said.
The outcome could have sweeping political consequences.
What Kobach and the Suing States Claim
Kobach and the other states in the lawsuit argue that the current census rules are unfair to many parts of the country.
They say that counting noncitizens (including both legal immigrants and illegal aliens) when deciding congressional seats gives an unfair boost to states with large immigrant populations, such as California and New York.
These states end up with more representatives in Congress and more Electoral College votes than they should have based only on their citizen population.
Kobach’s office specifically claims that Ohio and West Virginia each lost one congressional seat after the 2020 Census because noncitizens were included in the count.
How Big Could the Change Be?
Experts disagree on the exact impact, and it depends on whether the change excludes only illegal aliens or all noncitizens (including legal ones).
Here are the two main estimates:
- Bigger shift (excluding all noncitizens / citizen-only count)
A 2026 analysis by the American Redistricting Project estimated that if only U.S. citizens were counted for apportionment:- California would lose 6 seats
- New York would lose 2 seats
- Illinois, New Jersey, and Rhode Island would each lose 1 seat
- Texas and Florida would each gain 2 seats
- Arizona, Georgia, Idaho, North Carolina, Ohio, Tennessee, and Utah would each gain 1 seat
Overall, this would move power toward more Republican-leaning states.
- Smaller shift (excluding only illegal immigrants)
Researchers at the Pew Research Center found that removing only unauthorized immigrants would have a more modest effect:- California, Florida, and Texas would each end up with one fewer seat than they would have gained from normal population growth.
- For example, Texas would gain 2 new seats instead of 3.
In other words, fast-growing states like Texas and Florida would still gain seats — just not quite as many.
Bottom Line
Kobach’s side believes counting noncitizens distorts political power by giving high-immigration states extra influence in Congress and presidential elections.
Changing the rules could shift several House seats from states like California and New York toward states like Ohio, Texas, and Florida — but the exact number depends on whose estimates you use and whether legal immigrants are also excluded.
These are projections based on models, not guaranteed results. Any real change would be controversial and likely face major court battles, because the U.S. Constitution has historically been interpreted to count all “persons” living in the country for apportionment.
The Big Constitutional Debate
This argument about who should be counted in the U.S. Census for deciding congressional seats has been going on for hundreds of years.
The 14th Amendment to the Constitution (passed after the Civil War in 1868) says representatives in Congress must be apportioned based on the “whole number of persons in each State” (excluding certain Native Americans who were not taxed at the time).
The word “persons” is very broad and has traditionally included everyone living in the state, not just citizens or voters.
Historical Background:
- At the original Constitutional Convention in 1787, Southern states wanted to count enslaved people as full persons to get more seats in Congress (even though enslaved people could not vote). Northern states objected.
- They reached the Three-Fifths Compromise: Enslaved people would count as three-fifths of a person for apportionment. This gave Southern states more power than if enslaved people were ignored, but less than if they were counted fully.
- After the Civil War, the 14th Amendment replaced that compromise and required counting the whole number of persons — a big step toward equal representation.
Even after that, the Constitution originally excluded “Indians not taxed” from the count.
Today’s Argument: Noncitizens and Illegal Aliens
- Supporters of the current system say the Constitution clearly says “persons,” not “citizens” or “voters.” So everyone living in the U.S. should be counted.
- A 1988 memo from the Department of Justice concluded that illegal aliens must be considered “persons” under the 14th Amendment. It noted that the writers of the amendment deliberately chose the broad word “persons” instead of narrower terms like “citizens.”
Kobach and the suing states argue this interpretation is wrong (or should be changed) because it gives extra political power to states with large noncitizen populations, even though those people cannot vote.
Recent Legal History
Current Practical Numbers
The U.S. House of Representatives is capped at 435 seats. After the 2020 Census, the average congressional district represents about 761,169 people.
The case is currently on pause while the Trump administration reviews its options ahead of the 2030 Census.
The White House and Department of Justice declined to comment when asked.
This is a long-running, deeply political fight over what “representation” really means in America: Should congressional power be based on the total number of people living in a state or only on U.S. citizens?
The question remains unresolved and will likely end up back in the courts or require new regulations before the next Census.
The White House declined to comment and directed The Dallas Express to the Department of Justice. The Department of Justice did not immediately respond to a request for comment.
