One of the most prominent conservative Supreme Court litigators has given a federal judge the argument needed to throw out a Trump administration case against an alleged noncitizen voter – and dozens more prosecutions could now be at risk.
Paul Clement, who served as solicitor general under President George W. Bush, filed a 53-page brief at the request of a Florida judge on whether a little-used 1996 law against “voting by aliens” is constitutional, and Politico reported that the findings so far could present problems for prosecutors.
The Justice Department has built its high-profile crackdown on noncitizen voting around that statute, often publicizing arrests with photos of Homeland Security agents. Many of the cases are set for trial in December and January, after the midterm elections, and a growing number rely solely on the contested law.
Clement argued that the law oversteps Congress’ authority, because the Constitution leaves voter qualifications to the states.
“Today, citizenship and voting are strongly associated with one another. But that has not always been so,” Clement wrote. “For much of American history, many classes of citizens could not vote, while some noncitizens could.”
He acknowledged the question is “not straightforward,” but concluded that “the better view” is that the law “sets a voter qualification — which only the states may do.”
U.S. District Judge David Leibowitz agreed, and he relied on Clement’s brief to dismiss the case against Chelsea Cox, a Jamaican national who prosecutors say overstayed a tourist visa in 1999 and used a fraudulent birth certificate to register to vote. The lone charge against her stems from a 2020 vote.
Leibowitz, a Joe Biden appointee, called the government’s defense of the law “very, very weak.”
“So why does the Government lead with such a weak hand? Because it’s the best hand it can play,” he wrote. “And why is that? Because the text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute.”
The Justice Department has appealed to the 11th Circuit. Prosecutors argue that the Supreme Court has let Congress set voter qualifications before, most notably in a sharply divided 1970 decision upholding a law that lowered the voting age to 18.
But the department’s own lawyers have conceded the risk. In a court filing, they called the matter “an issue of first impression” and noted that none of the cases charged under the statute during Trump’s first term went to trial or appeal.
Several judges have paused cases while they consider the law’s constitutionality, and the only recent case to reach trial ended in acquittal on all five counts.
Clement’s brief is now circulating in other courts hearing similar challenges.
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