The Trump administration announced an immediate appeal Friday, a day after a federal judge issued a startling ruling finding that Congress doesn’t have the power to outlaw noncitizens casting ballots in federal elections.
Judge David Leibowitz’s decision applies, for now, only to the single criminal case before him. But his reasoning, if it stands, could undercut dozens of criminal cases the Trump administration has brought against noncitizens in recent months for casting ballots.
Judge Leibowitz, a Biden appointee to the court in southern Florida, said the Constitution gives states the role of determining voters’ qualifications — and states do generally bar noncitizens from voting.
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But he said that leaves no room for Congress, so a law barring noncitizens from voting stretches beyond Capitol Hill’s purview.
“Congress has no power to say who can vote or who cannot vote in federal elections,” he wrote. “Some legal principles are so fundamental that they form American constitutional bedrock, and this case reveals a big one: When you’re prosecuted based on a law that Congress did not have the authority to pass, the prosecution cannot stand.”
He tossed the federal misdemeanor case against Chelsea Cox, an illegal immigrant who had been charged in October 2025 with voting in the 2020 election.
Hans von Spakovsky, senior legal fellow at Advancing American Freedom, said he expects Judge Leibowitz’s ruling “will be squashed” by the appeals court.
He said while states get to set voters’ qualifications, Congress has power over immigration matters — and what flows from that.
“That gives the federal government the authority to ban aliens from voting or otherwise in any way participating in the democratic process,” he said.
Mr. von Spakovsky pointed to a 2011 decision authored by future Justice Brett M. Kavanaugh who ruled noncitizens with temporary status didn’t have the right to make contributions to political campaigns. Justice Kavanaugh said the Supreme Court has “long held that the government … may exclude foreign citizens from activities that are part of democratic self-government in the United States.”
That, Justice Kavanaugh said, included ruling “that the government may bar aliens from voting.”
The federal law criminalizing noncitizen voting is actually relatively new, dating back to 1996.
Judge Leibowitz said no federal court had been asked to rule on its constitutionality until recently.
He said the Constitution does give Congress the power to regulate the times, places and manner of federal elections, but that can’t be stretched to allow barring an entire category of people.
Judge Leibowitz said states are still free to bar noncitizens from casting ballots. Some are explicit in preventing it for all elections, while others only bar it for statewide offices and allow localities to make their own decisions.
That has spawned a recent rush of jurisdictions attempting to allow noncitizens to vote in local matters.
The District of Columbia explicitly allows noncitizens, including illegal immigrants, to vote on city issues, but not federal offices.
And a number of small cities in Maryland have adopted noncitizen voting for local matters.
Judge Leibowitz said Congress may have the power to prescribe immigration consequences, such as deportation, for noncitizens who vote. Indeed, such a law exists, and has recently been flexed by the Trump administration.
The judge said he wasn’t deciding on that law’s constitutionality in the Cox case.
In the early days of the republic noncitizen voting was common. Judge Leibowitz noted that all 13 original states allowed noncitizen voting in some fashion.
That began to change in the early 19th century, though the last state to bar noncitizen voting was Arkansas in 1926.
President Trump has claimed that noncitizen voting is rampant and is skewing U.S. elections. Voting rights groups challenge that idea, saying there’s scant evidence of the practice.
The Justice Department, seeking to bolster Mr. Trump’s claim, has initiated more than 60 cases since January 2025.
Ms. Cox, a citizen of Jamaica, came to the U.S. in 1999 on a tourist visa but never left.
Authorities said she used a bogus birth certificate to obtain a Florida driver’s license, then registered to vote in the state in 2012.
She falsely claimed to have been born in the U.S. Virgin Islands, prosecutors said.
She voted in 2012, 2016, 2018 and 2020 — though only the last of those was charged. The others fell outside the statute of limitations.
Ms. Cox had fought her case on several fronts, including accusing prosecutors of racism. She said she was being singled out because she was a Black immigrant.
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