Florida federal judge rules ban on non-citizen voting unconstitutional

A Biden-appointed judge is being called an “activist judge” by conservative critics after ruling that the federal government’s enforcement of a law barring noncitizens from voting in elections violated the Constitution in a federal criminal case.

In a 31-page ruling, U.S. Judge David Leibowitz of the Southern District of Florida dismissed federal charges against Chelsea Cox, a woman from Jamaica who voted in the 2020 presidential election despite not being a U.S. citizen. The move comes as the Trump administration has stepped up efforts to prevent noncitizens from voting, including through federal lawsuits and attempts to verify citizenship on state voter rolls, sparking legal battles with Democratic-led states and voting rights groups. President Donald Trump’s election integrity efforts have been driven in large part by his and his allies’ belief that the 2020 election was “stolen” — an unproven claim he continues to maintain.

Leibowitz ruled that the Constitution gives states – not Congress – the authority to determine who is eligible to vote in elections, effectively ruling that a provision of the Illegal Immigration Reform and Immigrant Accountability Act of 1996 (IIRIRA) criminalizing non-citizen voting in federal elections is unconstitutional as it applies to Cox.

“The Constitution vests in the States, and in the States alone, the general authority to determine the qualifications of voters in federal elections,” Leibowitz wrote in his ruling. “This is clear both from the text of the document and from the debates at the Constitutional Convention of 1787.”

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PROVO UT – NOVEMBER 08: Voters cast their ballots at the Utah County Justice and Health Center on November 8, 2022 in Provo, Utah. After months of campaigning, Americans are voting in the midterm elections to decide close elections across the country. (Photo by George Frey/Getty Images) (George Frey/Getty Images)

The decision drew strong backlash from Sen. Mike Lee, R-Utah, who co-authored the Safeguard American Voter Eligibility (SAVE) Act, which is currently stalled in the Senate and likely won’t pass before the midterm elections.

“This insane decision will almost certainly be overturned,” Lee wrote on

Hans von Spakovsky, senior legal fellow at Advancing American Freedom, agreed that Leibowitz’s decision will most likely be “overturned” by the 11th Circuit Court of Appeals.

“Judge David Leibowitz’s opinion that the federal law barring foreigners from voting is unconstitutional is patently erroneous,” Spakovsky told Fox News Digital. “It is true that states have the constitutional authority to set the qualifications of citizens eligible to vote in federal elections. But it ignores the fact that in Article I, Section 8, Congress has 100 percent power over naturalization.”

Spakovsky said the Constitution gives Congress the power to decide how noncitizens enter the country and what activities they can engage in once here.

“It gives the federal government the power to prohibit foreigners from voting or participating in any way in the democratic process,” Spakovsky said.

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Sen. Mike Lee, Republican of Utah, is calling for resistance to the SAVE America Act after Reuters reported that more than 30,000 noncitizens were found on U.S. voter rolls. (Stefani Reynolds-Pool/Getty Images)

Spakovsky brought up Bluman v. FEC, a 2011 decision authored by then-Justice Brett Kavanaugh and then summarily upheld by the Supreme Court, which upheld restrictions on campaign spending by foreign nationals. The notice states that the government may exclude non-citizens from activities related to democratic self-government.

“The Supreme Court has long held that government (federal, state, local) may exclude foreign citizens from activities that are part of democratic self-regulation in the United States,” Kavanaugh wrote. “For example, the Supreme Court has ruled that the government can prohibit foreigners from voting, serving as jurors, working as police or probation officers, or teaching in public schools.”

However, Bluman v. FEC involved campaign contributions and spending, not a federal criminal prosecution for voting.

Anhishek Kambil, a partner at law firm Holtzman Vogel, said he would be “surprised” if the federal government did not succeed in its appeal.

Kambil discussed the case of Oregon v. Mitchell, in which the Supreme Court ruled that the government had the power to set the voting age in federal elections, which would constitute a qualifying standard for voters.

“So the Supreme Court ruled, in one case, that there is a power of the federal government to regulate in certain cases certain types of voter qualifications, but the way that judge interpreted it kind of ruined everything,” Kambil told Fox News Digital.

Leibowitz rejected the federal government’s argument that the Constitution gives Congress complete power over the regulation of immigration and noncitizens.

President Donald Trump arrives to host a dinner in the Rose Garden of the White House September 2, 2026 in Washington, D.C. Trump has invited Republicans to enter competitive races ahead of the November election. (Kevin Dietsch/Getty Images)

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While recognizing that Congress has “broad and indisputable power” over immigration and noncitizens; he said these powers are not “a series of blank checks” and cannot override the Constitution’s “fundamental constitutional constraints” granting voter-qualification power to the states.

The judge also rejected the federal government’s use of the Elections Clause, which allows Congress to regulate how states conduct federal elections, including passing laws to combat voter fraud. Leibowitz said the law in question was not designed to regulate election procedures or prevent fraud, but rather created a federal voter qualification by determining who could vote.

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Even if Leibowitz ruled that the federal government could not continue to pursue Chelsea Cox, Florida would still have the power to file suit against the state.

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President Joe Biden nominated Leibowitz to the federal bench in 2024. The Senate confirmed him, 64 to 33, in a bipartisan vote, with then-Sen. Marco Rubio, R-Fla., voting in favor. Thursday’s decision is the most politically significant decision taken to date.