A federal judge in Miami ruled Thursday that Congress had no power to make it a crime for a noncitizen to vote in a federal election. The headline writes itself, and it is wrong in the way that matters. He did not rule that citizenship cannot be required to vote. He ruled that Washington cannot be the one to punish the breach. Every state already requires citizenship. Florida still can. The woman in the dock is not free to vote. She is free of one federal misdemeanor, in one courtroom, until a higher court says otherwise.
A Biden-appointed federal judge in Florida just ruled that Congress has no power to stop noncitizens from voting in federal elections.
Read that again.U.S. District Judge David Leibowitz, who Biden put on the bench in 2024, tossed the federal case against Chelsea Cox.
She’s a… pic.twitter.com/mJh3C0zqar— Scott Hannebaum (@shanneba) October 3, 2026
What the order actually did
U.S. District Judge David S. Leibowitz, sitting in Miami, dismissed the case against Chelsea Cox in a 31-page order. Cox is a Jamaican national living in Florida. She was charged in October 2025 with a misdemeanor for voting in the 2020 presidential election, under a federal statute, 18 U.S.C. § 611, that has barred noncitizens from voting in federal elections since 1996.
Leibowitz held that the Constitution lets the states set voter qualifications, not Congress. The electors for the House and Senate, the text says, shall have the qualifications requisite for electors of the most numerous branch of the state legislature. From that he drew a clean line. Who may vote is a state question. How the election is run is a question Congress may touch. A federal crime for casting a ballot while not a citizen, he wrote, crosses the line.
He was explicit about the limit. The order binds this case. It does not bind the other judges with the same charge on their dockets. About forty-five similar prosecutions are pending around the country. It does not touch the separate federal law against lying about citizenship to register. And it does not repeal Florida’s own ban. “Florida can and does,” he wrote. State prosecutors remain free to charge Cox under state law for the same act.
He called the case unusual. A forty-year-old statute, and until now no federal court had been asked whether Congress had the power to write it. That is the whole novelty. One judge answered no.
A federal judge just ruled that Congress has no power to make noncitizen voting in federal elections a crime.
The same opinion says a federal crime for voting in violation of a state’s citizenship requirement “appears to pass muster easily.” Florida has that requirement, in its… pic.twitter.com/xNfO0spHx7
— Gerard Filitti (@GerardFilitti) October 3, 2026
Who he is
Leibowitz was put on the bench by Joe Biden. He sits in the Southern District of Florida, the same courthouse that has spent three years as a warehouse for election cases. Nothing in the order suggests a long paper trail of election rulings. The opinion is a qualifications argument, not a sermon. He did not find that Cox was a citizen. He did not find that noncitizens have a right to the ballot. He found that the wrong sovereign signed the indictment.
That distinction will be lost by Sunday. A Biden judge, a Jamaican defendant, a dismissed voting charge, thirty-one days before a midterm: the short version will travel farther than the holding. The short version says a federal court just legalized foreign voting. The holding says the Justice Department picked a statute this judge thinks Congress could not pass, and Florida still has a pen.
The theory, and the hole in it
The theory is not invented. Article I gives the states the first word on who qualifies to vote for Congress, and the Seventeenth Amendment repeats it for the Senate. The elections clause gives Congress power over the times, places, and manner of federal elections, not, in so many words, over who is an elector. Lawyers have argued for years about where manner ends and qualification begins.
The hole is the thirty years the statute has stood, and the rest of the Constitution’s structure. Congress has written rules for federal elections since the founding era. It has banned vote-buying, false registration, and voting more than once. A ban on a noncitizen casting a federal ballot is the same kind of rule, aimed at the same federal office. If Leibowitz is right, a state could tomorrow drop its citizenship requirement for federal races and Washington could not make the act a federal crime. No state has done that. Every state requires citizenship. The judge’s own order admits it. The practical invitation is still sitting in the last paragraph of the theory.
A separate line of cases, from the last two years, is easy to mix with this one and should not be. Judges in Boston and Washington have blocked a presidential order that would have required documentary proof of citizenship on the federal registration form, on the ground that the president, as opposed to Congress or the states, has no election power of his own. That is a separation-of-powers ruling against an executive order. It is not a ruling that citizenship is optional. Last month the Supreme Court went the other direction on a related tool, clearing the administration to let states use a federal database to check citizenship on the rolls, over three dissents. The Court has not been in a mood to disarm verification. It has been in a mood to stop the president from writing the qualification himself.
What the appeal looks like
The government will appeal. A dismissed indictment in an election case, a month before the midterms, does not sit in a drawer. The path is the Eleventh Circuit in Atlanta, and after that the Supreme Court if the panel agrees with Miami.
The odds favor reversal, and not by a little. District judges do not get the last word on a statute that has been the charging tool for noncitizen voting since the Clinton years. The Eleventh Circuit is not a court that treats long-settled federal criminal law as a first draft. The Supreme Court, which in September told the government it may help states verify citizenship, is an awkward place to argue that Congress may not punish the thing the states are verifying against. Forty-five other judges are not bound, and most of them will not dismiss their own cases on the strength of one Miami order while the appeal is live.
The risk is not that the statute dies this month. The risk is the month itself. Prosecutors weighing new charges before November 3 now have a written opinion saying the charge is void. Defense lawyers in the other forty-five cases have a brief they did not have on Wednesday. A circuit stay would freeze it. Until the stay, the Justice Department’s election docket has a hole in it, cut by a judge who conceded the states may still do the prosecuting.
What it is not
It is not a ruling that citizenship is unconstitutional as a condition of the vote. It is not a license. It is not national. Cox can still be charged in Florida. A citizen who lies on a registration form can still be charged by Washington. The database the Supreme Court just unlocked is still available to the states that want to use it.
What it is, is a Biden-appointed judge telling Congress it wrote a crime it had no power to write, in the one area voters have been promised is simple. The appeal will test whether that reading survives a court that has spent the last year letting the government check the rolls. The bet here is that it does not. The damage, if any, is the four weeks between the order and the correction, and the headline that will not bother with the difference.
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