Constitutional Attorney: A Federal Judge Just Said Congress Can’t Ban Noncitizen Voting – He’s Dead Wrong

Federal law makes it a crime, with limited exceptions, for a noncitizen to vote in an election involving candidates for federal office.

In United States v. Cox, the federal government prosecuted a noncitizen under that law, 18 U.S.C. § 611, for allegedly voting in a federal election.

Federal Judge David Leibowitz dismissed the charge, holding that Congress lacked constitutional authority to prohibit her from voting. His reasoning was that the Constitution gives the states, rather than Congress, authority to determine who is qualified to vote.

At first glance, that conclusion rests upon a sound principle of federalism, but Leibowitz’s fatal flaw, if followed, establishes serious and destructive consequences.

The Constitution does give the states substantial authority to establish voter qualifications, and Congress has no general power to dictate them. However, Leibowitz takes that principle one step further, concluding that the states therefore possess “exclusive authority” over voter qualifications.

That is where the constitutional error begins. Congress’s limited authority does not make state authority unlimited.

That distinction is the heart of Cox. The question cannot be reduced to whether Congress or the states control voter qualifications because both operate beneath the Constitution, which is a higher authority.

Citizenship is where that distinction becomes critical, and history explains why.

In 1777, under the Articles of Confederation, states maintained different standards concerning citizenship and residence, while Article IV required recognition of privileges belonging to the “free inhabitants” and “free citizens” of other states.

One state’s decision about citizenship could therefore produce consequences in another.

James Madison explained the problem in Federalist No. 42. One state could admit an alien to citizenship under requirements another state rejected, and that person could then enter the second state claiming rights its laws would not have granted him.

Madison described the result as one state’s law becoming “preposterously” paramount within another state’s jurisdiction and warned that only “mere casualty” had prevented “very serious embarrassments.” The Framers had lived under that system and learned from it.

To solve this “embarrassing” confusion, the Constitution preserved substantial state authority over voter qualifications, but then used Article I, Section 2 to tie qualifications for House electors to those established for electors of the most numerous branch of each state legislature.

Additionally, the Constitution gave Congress authority to establish a “uniform Rule of Naturalization.” The Fourteenth Amendment later established national citizenship explicitly, while the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments placed further constitutional boundaries upon government authority over voting.

Therefore, the Constitution preserves state authority without leaving the meaning and consequences of citizenship entirely to state discretion.

This history exposes the fatal flaw in Leibowitz’s logic. He presents two choices: either Congress determines voter qualifications or the states do.

That is a false dichotomy because it leaves out the Constitution.

He then reasons that because Congress lacks general authority to establish voter qualifications, the states possess exclusive authority.

That conclusion does not follow. The Constitution can deny Congress a general power while still placing limits upon state authority. The Constitution gives citizenship national significance and repeatedly recognizes voting rights belonging to citizens.

Congress possesses specifically granted legislative powers over these issues, and Article II requires the Executive to faithfully execute constitutional federal law. Both remain subject to the Constitution, just as the states do.

Leibowitz’s reasoning risks returning us to a problem America has already experienced. If the political consequences of citizenship can mean fundamentally different things from state to state when choosing federal officers, citizenship begins to lose coherent national meaning.

Membership in one Union again carries different consequences depending upon which state supplies the rule. The Framers governed under the Articles, experienced its defects, and designed the Constitution with those lessons before them.

Misusing the Tenth Amendment to recreate that political confusion ignores both the history and the constitutional structure that emerged from it.

Citizenship must mean something. The Framers learned that a Union cannot function when the meaning and consequences of citizenship depend entirely upon the state in which a person happens to stand.

Their solution preserved state authority within a constitutional structure binding upon both state and federal governments.

Leibowitz mistakes limited federal power for unlimited state power, distorting federalism in a way that risks returning us to a constitutional problem we already solved.

The solution remains the one the Constitution provides: respect the authority reserved to the states, enforce the powers granted to the federal government, and require both to remain within their constitutional boundaries.

Madison warned us where that road leads. The Constitution reflects what we learned from traveling it.

We should reject Leibowitz’s misplaced logic before it carries us back toward a problem the Constitution was designed to correct. The lessons of our history should guide us forward, not become mistakes we are condemned to repeat.

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