Who May Vote, Not How

The charge was a misdemeanor, the defendant a single woman and the alleged offence one ballot cast in Broward County, Florida, on 29 October 2020. On Thursday, 1 October, Judge David S. Leibowitz of the Southern District of Florida dismissed it. He did not decide whether Chelsea Cox, whom prosecutors accuse of voting while knowing she was not a citizen, had done so; the motion, he wrote, could be decided on the assumption that she committed every element of the crime. He decided that the statute she was charged under, 18 U.S.C. 611, is unconstitutional as applied to her, because Congress had no power to pass it. “The text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute,” his 31-page opinion says.

Section 611 was added to the criminal code in 1996. It makes it unlawful “for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives,” or the delegate from the District of Columbia and the resident commissioner, on pain of a fine and up to a year in prison. It then makes one exception, in a clause beginning “unless”: where a state or local law lets noncitizens vote on something else on the same day, they may do so, provided that part of the ballot is “conducted independently” of the federal races. Prosecutors charged Cox in October 2025. According to CBS News, they say she overstayed a tourist visa more than 20 years ago, obtained a Florida driver’s licence with a false birth certificate and voted in several federal elections from 2012.

The constitutional question turns on two sets of clauses. Article I says voters for the House “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature,” and the Seventeenth Amendment repeats the rule for the Senate. Article II lets each state appoint presidential electors “in such Manner as the Legislature thereof may direct.” Separately, the Elections Clause lets Congress “make or alter” state rules on the “Times, Places and Manner” of congressional elections. In Arizona v. Inter Tribal Council in 2013, Justice Scalia wrote for the Supreme Court that the Elections Clause lets Congress regulate “how federal elections are held, but not who may vote in them.” Judge Leibowitz read the first set of clauses as giving the states, and only the states, the power to say who votes.

The Justice Department’s main answer was Oregon v. Mitchell, the 1970 decision upholding a federal law that lowered the voting age to 18 in federal elections. The judge called that defence “very, very weak.” Five justices in Mitchell rejected the Elections Clause reasoning that Justice Black used to uphold the law, he noted, and five rejected the Fourteenth Amendment reasoning the other four votes rested on. Applying the Supreme Court’s rule for fractured decisions and the Eleventh Circuit’s cases on it, he concluded that Mitchell holds only that Congress can regulate the voting age in federal elections. It does not, he wrote, support the government’s reading that Congress may set voter qualifications in federal elections generally. The Inter Tribal Council opinion had already called Mitchell “of minimal precedential value.”

The clause that made it a qualification

Before ruling, the judge appointed Paul Clement, solicitor general from 2005 to 2008, and Chadwick Harper as amicus curiae. They worked without pay and were asked to advise neither side, only to give “a thorough and candid view” of the law. Their memorandum, filed in July, said the arguments for the statute “have considerable force,” and offered a reading that might have saved it: section 611 as a federal way of punishing votes that state law already forbids, cast by people of particular federal concern. It concluded that whether Congress had the power “is not entirely clear-cut, but with respect to noncitizens in the States, the best answer given a fair reading of §611 as a whole appears to be no.”

What defeated the saving reading was the “unless” clause, which the memorandum called “the most damning textual evidence of Congress’ overambitious intent.” Because it carves out noncitizen voting allowed by state law only for state and local questions, the statute would still apply if a state decided to let noncitizens vote for Congress. That made it, in the judge’s words, “a voter qualification statute,” and one that works like Florida’s own: Florida defines a qualified elector as a citizen and makes it a third-degree felony to vote knowing one is not qualified. The government’s other arguments fared no better. Congress’s power over immigration and foreign affairs lets it act against foreign interference in elections, the judge agreed, but section 611 “appears to do nothing else” than set a qualification, and he held that the specific clauses on qualifications control the general powers. Congress may legislate against fraud under the Elections Clause, he wrote, but “the Government presents no evidence that Section 611 is designed to further that end.”

What the ruling leaves standing

The opinion ends with a list of what it does not decide. Florida can prosecute the same conduct under its own law, and the judge said it does. A separate federal immigration statute, 8 U.S.C. 1182(a)(10)(D)(i), makes any noncitizen who has voted in violation of federal, state or local law inadmissible; it “rests on Congress’s immigration power,” the judge wrote, and the ruling does not address removal. Nor does it reach 18 U.S.C. 1015(f), the five-year felony of falsely claiming citizenship in order to register or vote, which CBS News reports the department has also been using. And a statute making it a federal crime to vote in violation of a qualification set by a state, the version the amicus sketched, “would be a very different kettle of fish,” the judge wrote. Since every state now bars noncitizens from voting, the memorandum observed, such a law would in practice reach the same people.

The ruling is also narrow on its own terms. Cox first challenged the statute on its face, then added an argument that it was unconstitutional as applied to her. The judge decided only the second, partly because section 611 also covers federal elections in the District of Columbia, where, the amicus pointed out, Congress’s plenary power over the district would appear to let it bar noncitizen voting. A district court opinion binds no other judge. The government told the court of three similar challenges pending in the Southern District of Florida and two in the Western District of Wisconsin. In one of the Florida cases, United States v. Sylvestre, Judge Roy Altman sent the Clement memorandum to the parties in July and set a schedule for them to answer it.

The appeal

On Friday the United States Attorney’s office in Fort Lauderdale filed what it called a protective notice of appeal to the Eleventh Circuit. The government may appeal an order dismissing an information under 18 U.S.C. 3731, but whether it does is not for the local office to settle: Justice Department regulations assign to the Solicitor General the job of “determining whether, and to what extent, appeals will be taken by the Government.” A protective notice preserves the deadline while that decision is made. If the appeal goes forward, the Eleventh Circuit will take up what the district judge called a matter of first impression. In 2007 it upheld section 611 against due process and Fifth Amendment challenges, which the judge said did not present the issue.

The government argued that the stakes reach beyond one statute. According to the amicus memorandum, it warned that a ruling against it might endanger the Uniformed and Overseas Citizens Absentee Voting Act, the federal law under which military and overseas citizens vote absentee for federal office. The memorandum answered that this “may or may not be so,” and that states could adopt the same rules themselves. It also pointed to a third route: a joint resolution introduced this year by Representative Laurel Lee of Florida, H.J. Res. 152, proposing a constitutional amendment to reserve the vote in federal elections to citizens. “Such an amendment could achieve what ordinary legislation may not,” it said. The case concerns one vote cast six years ago. The question it puts to the appeals court is which government decides who makes up the federal electorate.

Sources

Judge Leibowitz’s memorandum opinion and order of 1 October 2026 in United States v. Cox (No. 0:25-cr-60249, S.D. Fla.), the court-appointed amicus memorandum of Paul Clement and Chadwick Harper (22 July 2026), the government’s protective notice of appeal (2 October) and Judge Altman’s order of 23 July in United States v. Sylvestre (No. 1:26-cr-20081) were read on CourtListener. Sections 611, 1015 and 3731 of title 18, 8 U.S.C. 1182, 28 C.F.R. 0.20 and the Inter Tribal Council opinion were read at Cornell’s Legal Information Institute. The allegations against Cox and the department’s use of section 1015(f) are as reported by CBS News on 2 October. The parties’ briefs, including the government’s warning about the overseas voting law, were not read directly; that warning is as the amicus memorandum describes it. H.J. Res. 152 was not read. No decision by the Solicitor General on the appeal had been announced when this was published.