‘Activist judge’ rules Congress cannot bar noncitizens from voting in federal elections
A Biden-appointed judge is being labeled an "activist judge" by conservative critics after ruling that the federal government's application of a law barring noncitizens from voting in elections violates the Constitution in a federal criminal case.
In a 31-page ruling, U.S. District Judge David Leibowitz of the Southern District of Florida dismissed federal charges against Chelsea Cox, a woman originally from Jamaica who voted in the 2020 presidential election, despite not being a U.S. citizen. The ruling comes as the Trump administration has intensified efforts to prevent noncitizens from voting, including through federal prosecutions and attempts to verify citizenship on state voter rolls, sparking legal battles with Democratic-led states and voting-rights groups. President Donald Trump's election integrity efforts have been driven in large part by his and his allies' belief that the 2020 election was "stolen" — an unproven claim he continues to maintain.
Leibowitz ruled that the Constitution gives states — not Congress — the authority to determine who qualifies to vote in elections, effectively ruling that a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) criminalizing noncitizen voting in federal elections is unconstitutional as applied to Cox.
"The Constitution commits to the States, and the States alone, the general power to set voter qualifications in federal elections," Leibowitz wrote in his ruling. "This is clear from both the text of the document and the debates at the Constitutional Convention in 1787."
The ruling garnered sharp blowback from Sen. Mike Lee, R-Utah, who is co-author of the Safeguard American Voter Eligibility (SAVE) Act, which is currently being stalled in the Senate and unlikely to be passed before the midterm elections.
"This insane ruling will certainly be overturned," Lee wrote on X. "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, a senior legal fellow with Advancing American Freedom, agreed that Leibowitz's ruling will most likely be "squashed" by the 11th Circuit Court of Appeals.
"Judge David Leibowitz’s opinion that the federal law barring aliens from voting is unconstitutional is patently wrong," Spakovsky told Fox News Digital. "It is true that states have the constitutional authority to set the qualifications of citizens who are eligible as voters in federal elections. But he ignores the fact that in Article I, Section 8, Congress is given 100% authority over naturalization."
Spakovsky said the Constitution gives Congress authority to decide how noncitizens enter the country and what activities they may engage in once here.
"That gives the federal government the authority to ban aliens from voting or otherwise in any way participating in the democratic process," Spakovsky said.
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Spakovsky pointed to Bluman v. FEC , a 2011 decision written by then-Judge Brett Kavanaugh and later summarily affirmed by the Supreme Court, which upheld restrictions on foreign nationals' campaign spending. The opinion said the government may exclude noncitizens from activities tied to democratic self-government.
"The Supreme Court has long held that the government (federal, state, local) may exclude foreign citizens from activities that are part of the democratic self-regulation in the United States," Kavanaugh wrote. "For example, the Supreme Court has ruled that the government may bar aliens from voting, serving as jurors, working as police or probation officers, or teaching at public schools."
However, Bluman v. FEC involved campaign contributions and expenditures, not a federal criminal prosecution for voting.
Anhishek Kambil, a partner at Holtzman Vogel Law Firm, said he'd be "surprised" if the federal government did not prevail in its appeal.
Kambil pointed to Oregon v. Mitchell, in which the Supreme Court ruled the the government had the authority to set voting age in federal elections, which would be a voter qualifier.
"So the Supreme Court has held, in an instance, that there is federal government authority to regulate in certain instances some types of qualifications of voters, but the way that this judge read it kind of made everything a mess," Kambil told Fox News Digital.
Leibowitz rejected the federal government's argument that the Constitution grants Congress total authority over regulating immigration and noncitizens.
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While he acknowledged that Congress has "broad, undoubted power" over immigration and noncitizens; he said those powers are not "a series of blank checks" and cannot override the Constitution’s "foundational constitutional constraints" assigning voter-qualification authority to the states.
The judge also rejected the federal government's reliance on the Elections Clause, which allows Congress to regulate how states conduct federal elections, including by passing laws to combat voter fraud. Leibowitz said the statute at issue was not designed to regulate election procedures or prevent fraud but instead created a federal voter qualification by determining who could vote.
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While Leibowitz ruled that the federal government cannot continue prosecuting Chelsea Cox, Florida would still have the authority to bring state charges.
President Joe Biden nominated Leibowitz to the federal bench in 2024. The Senate confirmed him, 64-33, in a bipartisan vote, with then-Sen. Marco Rubio, R-Fla., voting in favor. Thursday's ruling is his most politically consequential decision from the bench to date.