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A judge in southern Florida appointed by President Joe Biden made an unprecedented ruling on Oct. 1, 2026, about who is allowed to vote in the United States. US District Judge David Leibowitz of the Southern District of Florida dismissed federal charges against a Jamaican woman who voted in the 2020 presidential election, despite not being a citizen. But is non-citizen voting really an issue controlled by the individual states? Or is it the responsibility of Congress?
A Constitutional Conundrum
In a 31-page ruling, Judge Leibowitz said the US Constitution gives states the sole authority to determine who can vote in elections, not Congress. As such, the law used to prosecute Chelsea Cox was unconstitutional. “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.”
When a federal judge says the Constitution is clear, that is the word of an expert, someone who knows – or should know – better than most. Frequently the Constitution is, in fact, not so clear. This time, however, it is. Here’s what it says in Article 1, Section 4:
“The Times, Places and Manners of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislation thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
The language here is indeed quite plain, leaving no room for interpretation. As Judge Leibowitz argued, it does grant to the state legislatures the task of setting election law. However, as it clearly states in the second half of the sentence, Congress absolutely has the power to alter any of those laws except the places of choosing senators. Anything else – from Election Day to allowing non-citizen voting – is well within the authority of federal lawmakers, should they choose to exercise it.
Congress Exercises Its Authority on the Vote
And wouldn’t you know it? Congress did choose to exercise that authority to prohibit non-citizen voting.
18 U.S.C. § 611 reads, in part:
“(a) It shall be 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, Delegate from the District of Columbia, or Resident Commissioner … ”
The next word is “unless,” and there follows three conditions that must be met in order to exempt non-citizens from this law. But to be exempted, the election has to be held at least partly for other reasons than federal positions, aliens must be allowed to vote by state or local law, and the elections said aliens can vote in must be separate from the federal ones.
Several other federal laws enhance this prohibition – including 8 U.S.C. § 1227(a)(6), which makes non-citizen voting in violation of any federal, state, or local law a deportable offense. Though some localities have explicitly allowed non-citizen voting – which, therefore, only applies to local elections within those jurisdictions – no state has passed a law to allow it. In fact, many have passed laws forbidding it.
Non-citizen voting has become a headline issue since there were loud claims that the 2020 election was stolen through fraud. But many others were sure there was no evidence of widespread voter fraud. Add up all the known or even suspected instances of fraudulent non-citizen voting in 2020 and you likely wouldn’t come close to the more than 7 million ballots Joe Biden won over Trump.
Why It Matters
Now we know that it did occur – and Chelsea Cox was just one of many who got caught. As Judge Leibowitz recently demonstrated, he believes non-citizen voting happens, but it’s okay, ignoring the plain language of the Constitution to justify that position. For now, at least, it isn’t about the lack of evidence. The new narrative is that it’s a constitutional right.
4 Questions
The story, in brief
What did Judge David Leibowitz rule about non-citizen voting in Florida?
US District Judge David Leibowitz dismissed federal charges against Chelsea Cox, a Jamaican woman who voted in the 2020 presidential election despite not being a citizen. In a 31-page ruling, he said the Constitution gives states, not Congress, the sole authority to decide voter qualifications in federal elections. On that basis, he found the law used to prosecute her unconstitutional.
What does federal law say about non-citizens voting in U.S. elections?
18 U.S.C. § 611 says it is unlawful for any alien to vote in any election held solely or in part to elect federal offices, including president, vice president, senators, and representatives. The law includes limited exceptions, but only when state or local law allows it and the non-citizen voting is confined to separate, non-federal elections. Another federal law, 8 U.S.C. § 1227(a)(6), makes unlawful non-citizen voting a deportable offense.
Why does the article say Congress can regulate non-citizen voting?
The article points to Article 1, Section 4 of the Constitution, which says state legislatures set the times, places, and manners of elections, but Congress may at any time make or alter those regulations. It argues that this plainly gives Congress authority over election rules other than the places of choosing senators. Under that reading, Congress can prohibit non-citizen voting in federal elections.
How common was non-citizen voting in the 2020 election?
The article says non-citizen voting did occur and that Chelsea Cox was one of many who were caught. At the same time, it says that even all known or suspected instances of fraudulent non-citizen voting in 2020 likely would not come close to Joe Biden’s margin of more than 7 million ballots over Donald Trump. It presents the current dispute as more about constitutional authority than about evidence.
