A US district judge for the Southern District of Florida ruled on Thursday that a federal law barring non-citizens from voting is unconstitutional because only states can regulate voting.
Judge David Leibowitz dismissed a federal criminal case against Chelsea Cox, a Jamaican citizen accused of voting in multiple elections from 2012 to 2020, on constitutional grounds.
Congress passed 18 USC § 611, the “Voting By Aliens” law, in 1996. The law prohibits noncitizens from voting in federal elections, including those for the president, senators and representatives. Cox allegedly overstayed her tourist visa by 20 years and used a fraudulent US Virgin Islands birth certificate to get a Florida driver’s license. She allegedly used that license to register to vote. Her attorney moved to dismiss the case, challenging the constitutionality of the statute.
Judge Leibowitz wrote: “This is an unusual criminal case. It rests upon a forty-year-old federal statute, 18 USC § 611, that prohibits the act of voting in a federal election by a non-US citizen. Until very recently, no federal court has been presented with the following question about that statute: Did Congress have Constitutional authority to enact it?”
Judge Leibowitz appointed Paul D. Clement, former Solicitor General of the United States from June 2005 to June 2008, as amicus curiae to advise the court. Clement and Chadwick J. Harper focused on what came to be known as the statue’s “unless” clause, which carves out only a narrow exception for noncitizen voting in non-federal elections when permitted by state law. They called the clause “the most damning textual evidence of Congress’ overambitious intent” to prohibit a noncitizen from voting in a federal election even when permitted by state law.
Cox’s attorney, Bruce Udolf, welcomed the ruling, saying, “This is a situation that cries out for discretion by government officials and they’d be well-advised to walk away from this without further reprisal against her.”
On his Truth Social account, President Trump has alleged that voting by noncitizens is part of a broad Democratic Party conspiracy. Cox was one of just 129 people charged with violating the law known as “voting by an alien,” according to a Reuters investigation published in July. The investigation found that no defendants were accused of conspiring to sway an election, backing a candidate or taking payment for a vote.
Cox’s case is the latest in a series related to citizenship, voter eligibility, and election procedures in advance of next month’s elections.
