For much of the past two years, the debate over noncitizen voting has started from one seemingly uncontroversial premise: federal law makes it illegal for a noncitizen to vote in a federal election.
Yesterday, October 1, a federal judge in Florida complicated that premise considerably.
In United States v. Cox, US District Judge David Leibowitz dismissed a federal prosecution of a noncitizen accused of knowingly voting in the 2020 general election. The surprising reason was not that the defendant was entitled to vote. Florida law prohibits noncitizens from voting, and Judge Leibowitz went out of his way to emphasize that Florida remains perfectly free to prohibit and punish the conduct alleged in the case. Rather, Judge Leibowitz concluded that Congress lacked constitutional authority to enact the particular federal prohibition at issue, 18 U.S.C. § 611. (Order at 1–2.)
The decision is narrow. The court ruled only that Section 611 is unconstitutional as applied to this defendant; it expressly declined to resolve a facial challenge to the statute. And one district-court decision does not bind courts around the country. (Order at 5.)
But the reasoning is anything but narrow, and it could become important to the continuing debate over federal election legislation—particularly the SAVE America Act.
The Constitution does something unusual when it comes to voter qualifications. For elections to the US House, Article I provides that federal voters possess the same qualifications required to vote for the most numerous branch of their state legislature. The Seventeenth Amendment uses essentially identical language for the Senate. And Article II gives states broad authority over the selection of presidential electors. Judge Leibowitz reads those provisions, together with founding-era history, as assigning the general power to decide who is qualified to vote to the states rather than Congress. (Order at 16–20.)
That conclusion draws heavily on the Supreme Court’s 2013 decision in Arizona v. Inter Tribal Council of Arizona. Writing for the Court, Justice Scalia distinguished Congress’s power to regulate how federal elections are conducted from the states’ authority to determine who may vote in them. Judge Leibowitz concludes that the federal statute at issue in Cox crosses that line because it does not merely police an election procedure; it independently declares an entire category of persons ineligible to vote. (Order at 13–16, 20–22.)
The court also rejects the government’s argument that Congress’s broad power over immigration or its Elections Clause power can rescue Section 611. General congressional powers, Leibowitz reasons, cannot override the Constitution’s more specific allocation of authority over voter qualifications. And although Congress unquestionably can regulate election mechanics and combat fraud, that does not necessarily mean it can decide which classes of people are entitled to vote. (Order at 22–29.)
Which brings us to the SAVE America Act.
The Senate version of the SAVE America Act would prohibit a state from registering a person for a federal election unless that person provides documentary proof of citizenship, while providing an alternative process for citizens who lack the specified documents. It would also require states to identify and remove noncitizens and impose a federal photo-identification requirement for voting.
The Cox decision does not answer whether those requirements are constitutional. Indeed, supporters of the SAVE America Act have a potentially important distinction available to them: requiring proof of an existing state qualification can be characterized as regulating the mechanics of voter registration, rather than creating a new qualification. Arizona v. ITCA itself recognized considerable congressional power over the federal registration process.
But Cox makes the constitutional question harder to avoid.
Suppose a citizen satisfies every voter qualification established by her state but does not possess the documentation Congress has prescribed. If federal law prevents the state from registering her, is Congress merely determining how the state verifies its voters—or has Congress effectively imposed an additional qualification on who may vote?
That distinction is likely to become a central question in any constitutional challenge to the SAVE America Act.
And Judge Leibowitz offers Congress another possible route. He specifically observes that Congress could potentially criminalize a noncitizen’s voting in violation of state-established voter qualifications. Such a law would reinforce a state’s decision rather than substitute Congress’s judgment for it. (Order at 25, 30.) signal-2026–10-02–110352
So this ruling should not be summarized as “a judge legalized noncitizen voting.” It did not. Every state remains able to establish citizenship requirements and enforce them. Nor did the court hold that Congress has no role in protecting federal elections.
Instead, the ruling poses a more fundamental constitutional question: When Congress protects federal elections, where does regulation of the election process end and federal control over voter qualifications begin?
The SAVE America Act debate now has to contend with that question too.
