Florida Judge Throws Out the Federal Ban on Noncitizen Voting

A federal judge in Miami has dismissed the Justice Department’s case against a noncitizen accused of voting in 2020 and ruled that the statute prosecutors used is unconstitutional.

Biden appointed U.S. District Judge David S. Leibowitz, of the Southern District of Florida, issued the order Thursday in the case of Chelsea Cox, a Jamaican national. Prosecutors charged her in October 2025 with a misdemeanor under 18 U.S.C. § 611, the “voting by an alien” provision enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. The charge covered her vote in the 2020 presidential election. Reuters reported she was one of 129 people charged under that statute in an analysis the wire service published in July.

Leibowitz wrote that the case was unusual because it asked a question no federal court had squarely answered: whether Congress had constitutional authority to enact the ban. “The Constitution commits to the States, and the States alone, the general power to set voter qualifications in federal elections,” he wrote. “This is clear from both the text of the document and the debates at the Constitutional Convention in 1787.”

Cox’s lawyers argued she overstayed a tourist visa by about 20 years and used a fraudulent U.S. Virgin Islands birth certificate to obtain a Florida driver’s license, then used that license to register. The judge did not treat those allegations as a defense of the statute. He said Florida could still prosecute under state law. Every state requires citizenship to vote. The order binds only Cox’s case.

He rejected the government’s reliance on Congress’s immigration power and on the Elections Clause. Congress has “broad, undoubted power” over immigration, he wrote, but those powers are not “a series of blank checks” and cannot override what he called the Constitution’s assignment of voter qualifications to the states. The statute, in his reading, did not regulate the manner of holding an election or police fraud. It set a federal qualification by deciding who may vote.

President Biden nominated Leibowitz in 2024. The Senate confirmed him 64–33. Then-Sen. Marco Rubio, Republican of Florida, voted yes.

Sen. Mike Lee, Republican of Utah and a co-author of the Safeguard American Voter Eligibility Act, responded on X. “This insane ruling will certainly be overturned,” Lee wrote. “But it gives the game away: Democrats pretend we don’t need the SAVE Act because non-citizen voting is already illegal… while activist judges try to destroy laws banning non-citizens from voting.”

Hans von Spakovsky, senior legal fellow at Advancing American Freedom, told Fox News Digital the opinion is “patently wrong.” States set qualifications for citizens who may vote in federal elections, he said, but Article I, Section 8 gives Congress authority over naturalization, including what noncitizens may do once they are here. He pointed to Bluman v. FEC, a 2011 opinion by then-Judge Brett Kavanaugh, later summarily affirmed by the Supreme Court, which said the government may exclude foreign citizens from activities tied to democratic self-government, including voting. That case concerned campaign spending, not a criminal voting prosecution.

Abhishek Kambil of Holtzman Vogel told Fox he would be surprised if the government lost on appeal, citing Oregon v. Mitchell, where the Supreme Court upheld a federal role in setting the voting age for federal elections. The Justice Department had not announced an appeal as of Saturday. The ruling does not control other pending noncitizen-voting cases, including the Minnesota green-card indictments and the seven-state charging wave the department announced in September. It does give defense lawyers a written opinion to cite before Nov. 3.