'States and the states alone': Biden-appointed judge challenges federal voting law

FLORIDA: Former President Joe Biden-appointed District Judge David Leibowitz ruled that the federal government cannot prosecute a noncitizen for voting under a 1996 law.

Leibowitz said the Constitution gives states, not Congress, authority to set voter qualifications in federal elections.

The 31-page ruling dismissed federal charges against Chelsea Cox, who voted in the 2020 presidential election despite not being a US citizen, Fox News reported on Saturday, October 3.

David Leibowitz says states control voter qualifications

"The Constitution commits to the States, and the States alone, the general power to set voter qualifications in federal elections," Leibowitz wrote.

The ruling found the federal government's application of a provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 unconstitutional as applied to Cox.

Leibowitz rejected the government's argument that its broad authority over immigration and noncitizens allowed it to prohibit noncitizens from voting. 

He wrote that those powers are not "a series of blank checks" that can override constitutional limits.

He also rejected reliance on the Elections Clause, which permits Congress to regulate how states conduct federal elections.

Leibowitz said the law at issue established a federal voter qualification rather than regulating election procedures or preventing fraud, the report said. 

Critics challenge Leibowitz's constitutional reading

Senator Mike Lee, R-Utah, co-author of the Safeguard American Voter Eligibility Act, sharply criticized the ruling.

"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!" he added.

Hans von Spakovsky, a senior legal fellow with Advancing American Freedom, also argued the decision was wrong and predicted it would most likely be overturned 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.

Spakovsky cited Article I, Section 8 and a 2011 decision involving restrictions on foreign nationals' campaign spending, arguing that federal authority extends to excluding noncitizens from activities connected to democratic self-government.

Federal appeal could test the ruling

Abhishek Kambil, a partner at Holtzman Vogel Law Firm, said he would be "surprised" if the federal government did not prevail on appeal, the outlet cited.

Kambil pointed to Oregon v Mitchell, in which the Supreme Court held that the federal government could set the voting age for federal elections.

He said the decision showed federal authority could extend to some voter qualifications.

"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," Kambil told the outlet.

Leibowitz's ruling does not prevent Florida from bringing state charges against Cox.

Biden nominated Leibowitz to the federal bench in 2024, and the Senate confirmed him 64-33 in a bipartisan vote that included support from then-Sen Marco Rubio, R-Fla.