Judge Tosses Charge Against Noncitizen Accused of Voting in Federal Election

A federal judge on Oct. 1 threw out a case against a Jamaican woman who voted in a U.S. federal election, finding that the law that prohibits noncitizens from voting in federal elections is unconstitutional.

U.S. District Judge David Leibowitz in Florida said in a 31-page opinion that Congress lacked the authority to pass the law, which makes it “unlawful for any alien to vote in any election” involving a federal candidate and opens them up to one year in prison for each violation.

“The text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute. The best reading of the actual statute that underpins this criminal case yields an inescapable conclusion: 18 U.S.C. § 611 is a voter qualification statute, and the Constitution does not authorize Congress to legislate voter qualifications for federal elections,” Leibowitz said.

“Except for very specific constitutional provisions (that cannot support this statute; we will go through them), Congress has no power to say who can vote or who cannot vote in federal elections—that foundational power is reserved for the States, and limits Congress.”

Because Congress could not pass the law under the Constitution, the judge concluded it is unconstitutional as applied to the defendant, Chelsea Michelle Ann Cox, who allegedly voted in a federal election in Florida in 2020.

The Department of Justice and a lawyer representing Cox did not return requests for comment by the time of publication.

Leibowitz said that the Constitution does enable states, but states alone, to set voter qualifications for federal elections. That includes Article I, which says voters for House of Representatives elections “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

“The States have sole authority to set voter qualifications,” Leibowitz said. “In federal congressional elections, voters’ qualifications are a function of each State’s rules. And in Presidential elections, the States have the prerogative to establish whatever rules for selecting electors they see fit.”

Cox’s lawyers had said in a motion that Congress could regulate only the time, place, and manner of elections, while states alone could establish voter qualifications.

Government lawyers disagreed, writing in a filing that “State governments have initial and principal authority for administering elections within their jurisdictions, but the Supreme Court has recognized that the Constitution provides that the federal government maintains authority over elections, including guarding the safety and integrity of congressional elections.”

The lawyers pointed to a 1932 decision known as Smiley v. Holm, in which the nation’s top court held that the Constitution gave Congress the authority to “ supplement … state regulations” regarding elections and impose “additional penalties for the violation of the state laws or provide independent sanctions.”