OPINION:
A recent ruling in a federal criminal court case poses both challenges and opportunities for voter integrity.
On Oct. 1, U.S. District Judge David Leibowitz dismissed an indictment of a noncitizen for voting in a federal election in Florida.
The accused woman appears plainly to have violated a federal statute enacted in 1996 by large bipartisan majorities in the House and Senate — yet Judge Leibowitz struck down the law itself as unconstitutional.
People were interested in these podcasts
His action demonstrates why Congress should amend the Constitution to specify that only U.S. citizens may vote in federal elections.
Lest the ruling be attacked as the rogue action of an activist judge, Judge Leibowitz took great care in constructing his opinion. He asked respected former U.S. Solicitor General Paul Clement to serve as amicus curiae, with Clement’s firm filing a brief examining the constitutionality of the federal law.
Mr. Clement’s brief closely hewed to textualist principles, examining debates from the Constitutional Convention, the history of state voting laws and past Supreme Court cases. Mr. Clement concluded, and Judge Leibowitz agreed, that the federal criminal statute did not merely supplement existing state laws that prohibit noncitizen voting in federal elections.
Rather, Mr. Clement said, the statute interferes with and supersedes each state’s ability to define its franchise for federal elections, which, contrary to widespread belief, the federal government cannot do.
The U.S. Constitution’s qualifications clause explicitly reserves that power exclusively for the states.
Even as he found the current federal statute unconstitutional, Mr. Clement noted that “none of that is to say Congress is disabled from taking action on this issue. … If Congress wants a more permanent solution, as ever, the Constitution provides a mechanism for change.”
Former Federal Election Commission Chairman Bradley Smith made the same point in these pages earlier this year: States alone decide the franchise for federal elections, and they could decide to extend that franchise to noncitizens.
As such, a constitutional amendment is “the only legally effective way to ensure that only U.S. citizens vote in federal elections.”
In March, Rep. Laurel Lee, Florida Republican, introduced H.J. Res. 152, a constitutional amendment to accomplish this very purpose. Ms. Lee’s measure would codify in our nation’s founding document the citizen-only voting requirements already in place in all 50 states and supported by a wide majority of the public.
If approved by Congress, the resolution would also send the amendment to special state conventions for ratification, allowing all Americans to opine on the issue through their votes for delegates to those conventions.
The Senate’s focus on the Save America Act for much of this year obscured a key fact, reinforced by Judge Leibowitz’s ruling: Short of a constitutional amendment, any federal attempt to restrict noncitizen voting is likely to face legal challenge and peril.
Conservatives should focus their energies on passing such an amendment.
• Paul Jacob is chairman of Americans for Citizen Voting.
Please read our comment policy before commenting.