A federal judge in Miami will hear oral arguments this week on a legal theory that five people around the country are betting will spring them from noncitizen voting charges. Their pitch: The statute that made their vote a federal crime is unconstitutional. Congress, they argue, never had the authority to touch this. Only the states do.
In my courtroom experience, when a defendant stops arguing the facts and starts arguing jurisdiction, it’s usually because the facts are a lost cause. That’s what’s happening here, and the public deserves to understand exactly what’s at stake before a handful of judges decide it quietly.
The law in question, 18 U.S.C. Section 611, came out of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. It makes it a federal crime for a noncitizen to vote in an election that includes a federal office. Get caught, and you’re looking at a fine of up to $100,000, a year in prison, or both. For years, enforcement was so lax that Reuters reports some defendants faced fines as low as $150. The Trump administration changed that, pairing prosecution with deportation proceedings, and now the people caught in the net are fighting back with a states’ rights argument dressed up as principle.
Here’s their case. The Constitution ties House elector qualifications to state legislative qualifications under Article I, the 17th Amendment does the same for Senate races, and Article II leaves presidential elector selection to state legislatures. Every state already requires citizenship to vote. So, the defendants argue, enforcing that requirement is a state job, not a federal one. Christian Erazo Valdez, an Ecuadorian national charged in Madison, Wisconsin, for voting in the 2024 presidential race, was the first to make the argument in March. Chelsea Cox, a Jamaican national facing similar charges in Miami over a 2020 ballot, is now testing it before U.S. District Judge David Leibowitz.
The Justice Department’s answer is straightforward, and it’s the one that should carry the day. The Elections Clause gives Congress power to make or alter the rules governing federal elections, a power it has used before, including criminalizing repeat voting in the same race. Section 611 also sits inside an immigration statute, an area where Congress has broad, well-established authority. The DOJ compares it to the ban on foreign nationals making campaign contributions, a restriction courts have upheld without much fuss.
Picture applying the defendants’ logic anywhere else. Rob a federally insured bank and tell the judge that only your state’s attorney general has jurisdiction because banks operate branches locally. No court would buy it, because federal interests and state administration can coexist without one canceling the other. Elections work the same way. States run the polling places and print the ballots. Congress protects the federal offices that those ballots decide. That’s not a contradiction. It’s the design the founders wrote down.
The defendants aren’t inventing their theory from nothing. States do hold the primary role in setting voter qualifications, and Supreme Court Justice Antonin Scalia spent a career reminding courts that enumerated powers mean what they say and nothing more. But even under a strict originalist reading, the elections clause and the naturalization power both give Congress a legitimate hook here. This isn’t executive overreach. Congress passed this law in 1996, long before anyone in this dispute had heard of the current administration.
HOW ABOUT A HARD RESET ON AMERICA’S AUGUST PRIMARY MADNESS?
A win for the defendants wouldn’t legalize noncitizen voting. It would just hand enforcement back to state prosecutors, some of whom have neither the appetite nor the budget to chase these cases. With rulings possibly landing before the Nov. 3 midterm elections, the timing raises the stakes for public confidence in an election system that’s already taking enough hits.
Congress should close the door on this argument before a sympathetic judge opens it wider. Reassert federal authority explicitly. Fund the Department of Homeland Security-Social Security Administration citizenship verification tools already on the books. Stop treating noncitizen voting like a parking ticket. The right to vote in elections belongs to citizens. That’s not radical. It’s the whole point of citizenship, and no clever motion to dismiss should be allowed to make it optional.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a bachelor’s degree in criminal justice from Northeastern University and has completed postgraduate studies at the University of California, Los Angeles; the University of Pennsylvania; and Harvard University. He writes about issues in finance, constitutional law, national security, human nature, and public policy.