A Biden-appointed federal judge has thrown out an illegal-voting charge against a Jamaican woman accused of overstaying her visa, obtaining identification with a fraudulent birth certificate, and voting in American elections. Apparently, prosecuting that under federal law presents the constitutional problem.
U.S. District Judge David Leibowitz dismissed the case against Chelsea Cox on Thursday, finding that Congress lacked authority to impose the citizenship requirement behind her prosecution. The 1996 law prohibits noncitizens from voting in federal elections. It had been on the books for 30 years.
Start with how Cox got onto the voter rolls. Prosecutors say she obtained a Florida driver’s license using a fraudulent birth certificate from the U.S. Virgin Islands, then registered in 2012. She had arrived from Jamaica on a tourist visa in 1999. That visa expired in 2000.
By 2012, according to the government’s account, she had been here illegally for roughly a dozen years. Somehow, the paperwork she needed for voting came together before the permission to stay did.
Her voting record runs from 2012 through 2020. Prosecutors could charge her only for the 2020 election because the deadline for prosecuting the earlier votes had passed.
Leibowitz took up a different question: Could Congress decide who gets to vote? His answer was no. States generally set those qualifications, he reasoned, even for federal elections. Congress’s authority over election procedures did not get prosecutors past that objection.
Florida already requires voters to be citizens, as does every other state. Cox’s alleged conduct therefore runs afoul of the requirement either way. What she gained here was the dismissal of her federal charge.
The judge acknowledged that Florida could prosecute the alleged conduct:
“Can the State of Florida prohibit and punish the exact conduct Defendant Cox allegedly engaged in here? This has already been decided elsewhere and is not addressed here: Florida can and does.”
Other judges do not have to follow Leibowitz. Florida can still enforce its law, and Cox could still face deportation. Her attorney wants the government to leave her alone. For now, the federal voting prosecution has ended.
Roughly 45 similar cases are pending across the country, with at least four defendants already contesting the statute’s constitutionality. They now have an opinion to point to. (New York Post)
Sen. Mike Lee (R-UT) pointed to the familiar argument that additional safeguards are unnecessary because noncitizen voting already violates the law:
“This insane ruling will certainly be overturned. But it gives the game away: Democrats pretend we don’t need the SAVE Act because non-citizen voting is already illegal… while activist judges try to destroy laws banning non-citizens from voting!”
Leibowitz even allowed that Congress could write a federal prohibition tied to violations of state voter qualifications. He saw little constitutional difficulty with that version. Same ballot, same citizenship requirement, but Congress would need to come back with another statute.
Judicial activism need not announce a new right to vote. Knocking out the federal penalty will do plenty. American citizenship should carry more weight at the ballot box than a fraudulent birth certificate.
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