U.S. District Judge David Leibowitz just handed the Justice Department a serious problem in its expanding crackdown on noncitizen voting. On Thursday, the Biden-appointed judge dismissed the federal charge against Chelsea Cox, a Jamaican national accused of illegally voting in the 2020 election, after concluding Congress never had the constitutional authority to enact the law used against her.
From Reuters:
The Justice Department has charged at least 60 people with noncitizen voting since Trump returned to office in January 2025.
The ruling by Leibowitz, who was nominated by Democratic President Joe Biden, appears to be the first time a federal court has found the 1996 law a violation of the US Constitution.
Leibowitz wrote that under the US Constitution only states can set voter qualifications, not Congress. Every state requires US citizenship to vote, and Leibowitz said it was up to Florida, not the Department of Justice, to prosecute her for violating that requirement.
The facts alleged against Cox aren't especially helpful to anyone arguing that safeguards are unnecessary. Prosecutors said she entered the United States as a tourist, remained after her visa expired, used a fraudulent U.S. Virgin Islands birth certificate to obtain identification, registered to vote, and cast ballots in federal elections from 2012 through 2020. Only her alleged 2020 vote was charged because the earlier conduct fell outside the statute of limitations.
Congress enacted 18 U.S.C. § 611 in 1996. With limited exceptions, it makes it unlawful for an alien to vote in an election that involves the president, vice president, presidential electors, senators, or House members. A violation brings fines, up to a year in prison, or both.
Leibowitz didn't rule that Cox was entitled to vote. He ruled that Washington lacked the constitutional power to prosecute her under this particular statute because voter qualifications belong to the states. His decision applies only to Cox, but the reasoning reaches far beyond one defendant if other judges adopt it.
The judge has more constitutional text behind him than the headline might suggest. Congress's own Constitution Annotated explains that the Elections Clause gives Congress extensive authority over the "Time, Places, and Manner" of congressional elections but says the clause doesn't permit Congress to set voter qualifications. Article I and the 17th Amendment tie qualifications for federal elections to those established for voters of the most numerous branch of each state's legislature.
Leibowitz even appointed former U.S. Solicitor General Paul Clement to examine the question independently. Clement concluded that Congress probably lacked authority to enact § 611, although he cautioned that the constitutional issue was as clear as mud.
From Reuters:
Trump's Justice Department has argued that the Supreme Court has recognized that Congress has the authority to protect the integrity of elections and has passed laws such as one criminalizing repeat voting in the same election.
In addition, the DOJ has argued the statute does not regulate elections but focuses on immigration, where Congress has clear authority to legislate. The statute was part of the sweeping Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The DOJ compared it to Congress limiting election campaign contributions by foreign nationals, which courts have upheld.
Defendants in the five cases hope the judges rule to dismiss the charges on constitutional grounds before their trials start. That is due as soon as October 5, with the last of the five scheduled to begin December 14.
The Justice Department argues the other direction, relying on Congress's federal election powers and authority over immigration, and another Miami federal judge recently rejected the same constitutional challenge.
Florida, meanwhile, doesn't need Congress's permission. Its constitution limits electors to U.S. citizens, and state law makes willful voting by an unqualified noncitizen a third-degree felony. Leibowitz's decision leaves those provisions untouched, meaning Cox's victory over the federal charge doesn't transform non-citizen voting into lawful conduct in Florida.
The immediate problem for the Trump administration is scale. Federal prosecutors have brought dozens of noncitizen voting cases since President Donald Trump returned to office, and defendants in Florida and Wisconsin have already begun attacking § 611 on the same constitutional ground. Leibowitz's ruling isn't binding on those judges, but their lawyers now have a 31-page federal decision supporting the argument.
From Reuters:
Leibowitz wrote that under the US Constitution only states can set voter qualifications, not Congress. Every state requires US citizenship to vote, and Leibowitz said it was up to Florida, not the Department of Justice, to prosecute her for violating that requirement.
"Can the State of Florida prohibit and punish the exact conduct Defendant Cox allegedly engaged in here? This has already been decided elsewhere and is not addressed here: Florida can and does," Leibowitz wrote.
Trump, who falsely claims that fraud cost him the 2020 election, has said stricter enforcement of documented citizenship is needed for election integrity. His critics say the administration's highly publicized crackdown on noncitizen voting exaggerates a rare problem and could undermine confidence in election results.
The strange result is easy to miss amid the predictable political shouting. Noncitizen voting remains illegal, Florida remains free to punish it, and no constitutional right to cast an illegal ballot suddenly appeared Thursday.
The question Leibowitz forced into the open is narrower and potentially much more consequential: when a noncitizen illegally votes in a federal election, does Washington actually have the constitutional authority to prosecute the vote?
For nearly 30 years, § 611 said yes. One federal judge just said no, and the Justice Department now has considerably more at stake than Chelsea Cox.
Stories like this are why the constitutional details matter. The headline says a judge struck a blow against a noncitizen-voting law, but the real fight is over who has the power to write and enforce it.
Join the Conversation
VIP members get the ability to comment on articles.