On October 1, Judge David Leibowitz of the Southern District of Florida ruled that Congress cannot constitutionally prevent a noncitizen from casting a ballot in a federal election, declaring 18 U.S.C. Β§ 611 β the federal statute barring alien voting β unconstitutional. The decision, which the judge himself characterized as an “issue of first impression,” has drawn sharp criticism from conservative commentators who argue it misreads both Supreme Court precedent and the plain text of the Constitution.
Writing in American Thinker, retired physician and commentator Ted Noel argues that Leibowitz’s opinion effectively places an inferior federal court above the Supreme Court and ignores more than a century of constitutional text and precedent bearing on the question of who may vote in federal elections.
The Case and the Precedent the Judge Set Aside
The case before Leibowitz involved a defendant, identified in the article as Cox, accused by the federal government of knowingly voting in a federal election in Broward County on October 29, 2020, while fully aware she was not a United States citizen. That is precisely the conduct Congress criminalized in Β§ 611, and according to Noel, the Supreme Court has already confirmed Congress’s authority to do so.
The government pointed the court to Oregon v. Mitchell, 400 U.S. 112 (1970), in which the Supreme Court upheld Congress’s power to lower the voting age to 18 in federal elections. Leibowitz declined to treat Mitchell as binding, writing that “Mitchell does not control this case” on the theory that the fractured nature of the decision β five separate opinions β left “no precedent in Mitchell to overrule, given the absence of a majority rationale.”
Noel contends this reasoning misapplies the Marks doctrine. The outcome in Mitchell, he notes, was 5-4 in favor of the government’s authority to enforce a lower voting age in federal elections. The rationale may have been splintered, but the result β that the federal government can set certain rules for federal elections β stands. Justices Stewart, Blackmun and Burger agreed, in Noel’s telling, that Congress may exercise power “under the Necessary and Proper Clause to protect the privileges of United States citizenship.”
Noel also points out that the disagreements among the justices in Mitchell concerned secondary questions β residency requirements, absentee ballot rules and literacy tests β none of which had anything to do with a prohibition on noncitizen voting in federal elections. On his reading, that distinction should have settled the matter.
What ‘the People’ Means
Because Leibowitz anchored his ruling in the Constitution, Noel walks through the relevant text. He cites United States v. Verdugo-Urquidez (1990), in which Justice Rehnquist wrote that “the people” is a term of art referring to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” In District of Columbia v. Heller (2008), Justice Scalia tightened that definition, noting it “unambiguously refers to all members of the political community.” And in Wolford v. Lopez (2026), Justice Alito, according to Noel, further compressed the definition to “all members of the political community.”
The only remaining contraction, Noel argues, is to collapse those descriptions into a single word: citizens.
From there he points to the Fifteenth Amendment, ratified in 1870, which provides that the right of citizens of the United States to vote shall not be denied or abridged on account of race, color or previous condition of servitude, and grants Congress power to enforce that guarantee by appropriate legislation. He also cites the Twenty-Sixth Amendment, ratified in 1971, which extends the same protection on account of age and carries the same congressional enforcement power.
Noel suggests Leibowitz ignored both amendments. He also invokes Article I, Section 8, Clause 18 β the Necessary and Proper Clause β arguing that if the Constitution grants Congress a power, Congress may exercise it, a point reinforced by the enforcement sections of both amendments.
The Article I, Section 4 Argument
At the core of Leibowitz’s reasoning, according to Noel, is a narrow reading of Article I, Section 4, Clause 1, which provides that the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by its legislature, though Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.
Because the statutory ban on noncitizen voting is characterized as a voter-qualification law, Leibowitz concluded it must be struck down β only states, in his view, may set voter qualifications. Noel counters by citing Justice William O. Douglas in Mitchell, who wrote that the Court had determined, as a matter of stare decisis, that “voting for national officers is a privilege and immunity of national citizenship.”
The Fifteenth and Twenty-Sixth Amendments, Noel writes, guarantee the right to vote to citizens. By implication, that guarantee denies the right to noncitizens, at least in federal elections. Only a citizen of the United States β as distinct from a citizen of one of the individual states β holds that privilege, and Congress, in his view, has every right to enforce the principle through appropriate legislation.
The ruling raises a broader question that will likely be litigated further: whether a single district court judge can effectively nullify a federal statute that Congress passed and that the Supreme Court has, on the government’s reading, already blessed. Noel’s answer is unambiguous β Leibowitz’s decision, he argues, effectively declares that the Supreme Court has no power over his inferior court, a posture he frames as a fundamental misreading of the judicial hierarchy and of the Constitution itself.
Source: www.americanthinker.com β https://www.americanthinker.com/articles/2026/10/a-blind-judge/