Judge Questions Constitutionality of Noncitizen Voting Law

In a surprising turn of events just weeks before the midterm elections, a federal judge appointed by President Joe Biden criticized the federal law that prohibits foreigners from voting, labeling it as “unconstitutional.”

Chelsea Cox, originally from Jamaica, arrived in the U.S. on a tourist visa in 1999. The Justice Department has stated that Cox, who did not return home when her visa expired and currently lacks legal status, obtained a Florida driver’s license using a fake birth certificate from the U.S. Virgin Islands back in April 2000.

Cox faced charges last October in the Southern District of Florida for allegedly casting an illegal vote during the 2020 election while using her false identity. The Justice Department’s claims indicate that she also participated in elections in 2012, 2016, and 2018.

The relevant federal law, outlined in 18 U.S.C. § 611, prohibits any foreign national from voting in elections for certain federal positions unless they either permanently resided in the U.S. before turning 16, have citizen parents, or reasonably believed they were citizens at the time of voting.

In Cox’s defense, her attorney argued that the states, rather than Congress, should determine the qualifications of electors for federal elections, suggesting that Section 611 is “facially unconstitutional.”

U.S. District Judge David Leibowitz, who is related to billionaire Norman Braman, sided with the defense and dismissed the case, asserting that “the text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute.”

He dismissed the government’s argument that the law falls under Congress’s broad authority over immigration and foreign affairs, stating that while Congress does have extensive powers, these do not override the fundamental constitutional constraints stipulated in the Voter Qualification Clauses.

Judge Leibowitz acknowledged that “one can assume that the Defendant committed every element of the crime established by Section 611,” but ultimately ruled that “Chelsea Cox cannot be prosecuted for an alleged violation of an unconstitutional statute.”

Nevertheless, he mentioned that Florida still has the authority to “prohibit and punish the exact conduct Defendant Cox allegedly engaged in,” adding that this case does not touch on the question of whether the Trump administration can deport her.

Bruce Udolf, Cox’s attorney, expressed that his client was “ecstatic” about the ruling, hoping the government would refrain from pursuing deportation, especially since Cox has lived in the U.S. for three decades and requires medical care unavailable in Jamaica.

The ruling faced backlash from individuals advocating for strict voter eligibility. James Percival, general counsel for the U.S. Department of Homeland Security, condemned the decision, framing it as a troubling precedent where federal bans on noncitizen voting are deemed unconstitutional. Similarly, Utah Senator Mike Lee criticized the ruling and urged voters to support Republicans in the upcoming elections.

The government has already appealed the judge’s decision to the U.S. Court of Appeals for the 11th Circuit.