A federal judge has denied President Trump one of the powers he is using to stop non-citizens from voting: prosecuting as criminals those who go to the polls. While voting by non-citizens is not considered to be a significant problem, the President disagrees, claiming that it is to blame for fraud that he sees as rampant in U.S. elections.
On Thursday, in the first constitutional ruling of its kind, a U.S. District Court judge in Florida barred the federal government from going ahead with a criminal charge against a woman resident who is not a U.S. citizen but voted in the presidential and congressional election in 2020. If she were found guilty under a 1996 federal law making that a federal crime, she would have faced a fine and up to a year in prison.
In a 31-page opinion ranging over U.S. history back to the nation’s founding, U.S. District Judge David S. Leibowitz of Miami ruled explicitly that Congress did not have the power to set any qualifications on who can vote in any federal election.
“The Constitution commits to the states, and to the states alone, the general power to set voter qualifications in federal elections,” the judge wrote. “This is clear from both the text of the document and the debates at the Constitutional Convention in 1787.”
The woman involved in the case, identified in court papers as Chelsea Michelle Ann Cox of Broward County, is one of just a handful of non-citizen voters around the country to start court challenges to the 1996 law’s criminal ban on non-citizen voting. The court papers do not identify her home country, or when she arrived in the U.S. It is not clear whether she entered legally or illegally; she does not deny that she is not a U.S. citizen.
Judge Leibowitz noted that his decision had relied heavily upon a brief canvassing the history of non-citizen voting under the Constitution. The brief was mainly prepared, at the judge’s request, by Paul D. Clement, a high-profile, conservative Washington lawyer who is one of the most highly praised lawyers appearing before the U.S. Supreme Court. He is a former U.S. Solicitor General. He and a younger colleague in his firm, who worked with him, wrote the brief without being paid a legal fee.
Judge Leibowitz chose, at the end of his opinion, to rule only that he was blocking the specific case against Ms. Cox, because of technical wording in the law that complicated a wider ruling. However, if the decision survives a likely appeal by the Trump Administration, it will clearly have the practical effect of blocking enforcement of the 1996 law as a legal reality.
The decision still leaves untouched the power of any state government to forbid voting in any election – federal, state or local – by any non-citizen living in the state. No state currently permits non-citizens to vote, although in America’s early years as a nation, many states did so.
Judge Leibowitz’s decision arises at a time when the President and his government are trying a wide variety of maneuvers to take greater control over federal elections, especially this year’s congressional midterm elections. Many of those maneuvers are aimed at non-citizens, because of the President’s firm belief that they are voting in large numbers and bringing foreign influences into U.S. voting.
The new ruling in the Florida court is especially timely, because President Trump has ordered the Justice Department to give a high priority to criminal prosecution of any non-citizen who attempts to vote and any election official who seeks to aid voting by those not eligible to cast a ballot. The President’s sweeping attack on mail-in voting is based largely on his belief that mainly non-citizens are abusing the right to vote.
The President also has taken a number of major steps to use government powers to locate non-citizens living in the U.S., as part of his wide deportation campaign. That campaign is affecting tens of thousands of individuals and their families, very few of whom have committed crimes that the President claims justify his actions.
In defending the 1996 law’s constitutionality in the Florida case, Justice Department lawyers leaned heavily upon the government’s dominant role in managing immigration policy and conducting foreign policy. Judge Leibowitz flatly rejected both arguments, concluding that several clauses in the Constitution make it clear that setting voter qualifications is a matter for the states.
The Constitution itself, of course, does set some qualifications for voting, especially in federal elections. The 14th Amendment assures equal rights to U.S. citizenship — including by implication, the right to vote. The 15th Amendment forbids making race a qualification to vote, the 19th Amendment does so for a person’s sex, the 24th forbids imposing a poll tax on the right to vote in federal elections, and the 26th assures that citizens may vote once they reach age 18.
Because the provisions in these Amendments are in the Constitution, they are as binding as any other part of the document. Rather curiously, however, the text of the Constitution nowhere says explicitly that the right to vote is a constitutional right. That right has been read into the document, though, by countless court rulings, as well as by the specific protections assured by the amendments. (There is now some movement in Congress to try to amend the Constitution to explicitly create a right to vote.)
In essence, Judge Leibowitz’s decision means that Congress is forbidden to pass any law to impose any additional voter-eligibility provision in a federal — that is, presidential or congressional –election.
