The Daily BS • Bo Snerdley Cuts Through It!
The Daily BS • Bo Snerdley Cuts Through It!

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Biden appointed judge rules that federal bans on noncitizen voting are unconstitutional

by

BS BULLETIN:

  • A Biden-appointed federal judge dismissed a case against a Jamaican national accused of voting illegally in the 2020 election.
  • Judge David Leibowitz ruled that Congress exceeded its constitutional authority when it made noncitizen voting in federal elections a federal crime.
  • The ruling does not make noncitizen voting legal: Florida still prohibits it, the decision currently applies only to this defendant, and the Justice Department has moved to appeal.

A federal judge in Miami has thrown a constitutional grenade into Washington’s election-law debate.

U.S. District Judge David Leibowitz dismissed the federal prosecution of Chelsea Michelle Ann Cox, a Jamaican national accused of knowingly voting in the 2020 presidential election despite not being a U.S. citizen.

And his reason had nothing to do with whether Cox was actually entitled to vote. She wasn’t. Instead, Leibowitz ruled that Congress itself lacked the constitutional authority to enact the federal law under which she was charged.

The Biden-appointed judge concluded that the Constitution leaves voter qualifications primarily to the states — meaning Florida can prohibit and prosecute noncitizen voting, but Congress cannot create the federal crime at issue in Cox’s case. The statute, 18 U.S.C. § 611, has been on the books since 1996 and generally makes it a misdemeanor for a noncitizen to vote in an election involving federal candidates.

Leibowitz called the case unusual because courts had apparently never squarely answered whether Congress possessed the constitutional authority to enact that prohibition. His answer was no.

“The text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute,” Leibowitz wrote.

Federal prosecutors had accused Cox of entering the United States on a tourist visa in 1999 and remaining after it expired. According to court filings, she later allegedly used a fraudulent U.S. Virgin Islands birth certificate to obtain a Florida driver’s license and registered to vote in 2012. Prosecutors say Cox went on to cast ballots in multiple federal elections, including the 2020 presidential election.

But Leibowitz concluded that if Cox illegally voted in Florida, Florida is the government constitutionally empowered to prosecute that conduct.

“Florida can and does,” the judge wrote of the state’s own prohibition against noncitizen voting.

The ruling applies directly only to Cox’s case and does not bind other federal judges. But it could quickly become significant.

Roughly 45 similar federal cases are reportedly pending around the country, and several defendants have already raised constitutional challenges to the same statute. The Trump Justice Department is aggressively pursuing noncitizen-voting cases as part of its election-integrity campaign and has brought dozens of prosecutions since Trump returned to office.

DHS General Counsel James Percival blasted the decision, arguing that Congress plainly has authority to protect federal elections from votes cast by noncitizens. The Justice Department has already moved to appeal.

MY QUICK TAKE

Here is where constitutional law occasionally produces a headline that sounds crazier than the actual ruling.

“Judge says Congress can’t ban noncitizens from voting” sounds like somebody discovered a secret clause in Article I reading, “Come on in, everybody.”

That is not what happened.

The judge’s argument is an old federalism argument: Washington does some things, the states do other things, and even a perfectly sensible rule can run into trouble if the wrong government writes it.

The Framers spent an extraordinary amount of time fighting over exactly this kind of division of power. Two hundred thirty-nine years later, we are still paying lawyers to explain what they meant. But this case does produce a rather remarkable result. Congress says: noncitizens cannot vote in federal elections.

The judge says: they cannot vote — but Congress cannot be the one saying it. Only lawyers could construct a sentence like that and still bill by the hour. And because Florida already makes the same conduct illegal, this may eventually become less a debate about whether noncitizens can vote than about which courthouse gets to prosecute them.

The Supreme Court has seen stranger federalism fights. I suspect it hasn’t seen many with a better headline.

DBS WIRE SOURCES:

  • Fox News — “‘Activist judge’ rules Congress cannot bar noncitizens from voting in federal elections”
  • CBS News — Judge says federal law banning noncitizen voting is unconstitutional
  • Reuters — U.S. judge finds law criminalizing noncitizen voting unconstitutional
  • Bloomberg Law — Migrant voting case tossed, judge says law is unconstitutional
  • Breitbart — Biden judge claims Congress can’t stop noncitizens from voting

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