First Federal Court Finds the Noncitizen-Voting Ban (18 U.S.C. § 611) Unconstitutional — DOJ Appeals Within Hours
On Thursday, Oct. 1, 2026, U.S. District Judge David S. Leibowitz (S.D. Fla., a Biden appointee) issued a 31-page order dismissing the federal prosecution of Chelsea Cox — a Jamaican national charged in October 2025 with a misdemeanor for illegally voting in the 2020 election — and holding that 18 U.S.C. § 611, the 1996 law criminalizing voting by noncitizens in federal elections, is unconstitutional. It appears to be the first time any court has deemed the statute unconstitutional.
His reasoning: under the Constitution, only states can set voter qualifications, not Congress — and Florida is free to prosecute Cox under state law. From the order:
"This is an unusual criminal case. It rests upon a forty-year-old federal statute, 18 U.S.C. § 611, that prohibits the act of voting in a federal election by a non-U.S. citizen. Until very recently, no federal court has been presented with the following question about that statute: Did Congress have Constitutional authority to enact it? That's unusual, all by itself."
And on the merits:
"…the text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute."
Leibowitz also jabbed the government's advocacy, writing that DOJ's "principal defense of the statute's constitutionality invokes a single Supreme Court case that is very, very weak." He had invited Paul Clement — solicitor general under George W. Bush — to brief the issue; Clement's amicus concluded Congress likely "overstepped constitutional bounds in enacting §611," because "states, not the federal government, determine voter qualifications."
Why it matters for the power story: this is a direct hit on DOJ's election-integrity prosecution campaign ahead of the midterms — the department has publicly announced charges against 16 individuals for "illegal voting and related election crimes" and indicted ten defendants in Minnesota. The ruling binds only Cox and doesn't touch the separate false-claims-of-citizenship statute DOJ has also been using. But per CBS News, "Shortly after Leibowitz's decision, the Justice Department moved to appeal the ruling" — so the Eleventh Circuit now gets the first appellate word on whether Congress can criminalize noncitizen voting at all, a question the Supreme Court has never answered.