By Tom Hals
WILMINGTON, Delaware, Sept 15 (Reuters) – As U.S. President Donald Trump seeks to crack down on what he says is widespread illegal voting by noncitizens, several people charged with that crime are trying a novel strategy to get their cases dropped.
Five people being prosecuted in separate federal cases in Miami and Madison, Wisconsin, have argued for the first time in court that the 1996 law used to charge them is unconstitutional, according to a Reuters review of court filings.
A ruling for the defendants, which could come before the November 3 midterm elections, would raise questions about the federal government’s authority to prosecute noncitizen voting cases. The Trump administration has pushed to deport noncitizen voters, raising the stakes for defendants who previously faced as little as a $150 fine if convicted.
The defendants were accused of violating the federal “Voting by Aliens” statute enacted three decades ago. The law makes it illegal for noncitizens to vote in federal elections, and violators can be fined up to $100,000 or imprisoned for up to a year.
In the five cases identified by Reuters, defendants have asserted that the right to determine voter qualifications is reserved for U.S. states under the Constitution. While all states require voters to be citizens, the defendants argue that it is up to states to prosecute a violation, not the federal government.
Trump’s Justice Department has argued that the Supreme Court has recognized that Congress has the authority to protect the integrity of elections and has passed laws such as one criminalizing repeat voting in the same election.
In addition, the DOJ has argued the statute does not regulate elections but focuses on immigration, where Congress has clear authority to legislate. The statute was part of the sweeping Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The DOJ compared it to Congress limiting election campaign contributions by foreign nationals, which courts have upheld.
Defendants in the five cases hope the judges rule to dismiss the charges on constitutional grounds before their trials start. That is due as soon as October 5, with the last of the five scheduled to begin December 14.
RAISING THE STAKES
Trump, who has repeatedly made unsubstantiated claims of widespread election fraud and questioned the legitimacy of U.S. election results, has said that noncitizen voting is a widespread problem that undermines the integrity of U.S. polls.
But a Reuters analysis published on July 19 showed noncitizen voting is incredibly rare. Only 129 people have been charged in the 30-year history of the law. The typical defendant was a lawful permanent resident with deep community ties who voted in the mistaken belief they were allowed to do so.
In the midterm elections, when presidents’ parties usually suffer losses, Trump’s Republicans are fighting to retain control of Congress. The president’s repeated claims about widespread noncitizen voting could be part of an effort to sow doubts about the election’s legitimacy if Democrats take control of Congress, experts have said.
Until Trump’s second term, most defendants charged with noncitizen voting worked out deals to plead guilty and were often sentenced to fines of around $150, similar to a speeding ticket.
However, the Trump administration began pushing to deport noncitizen voters last year, raising the stakes for defendants.
CASES IN FLORIDA, WISCONSIN
The first constitutional challenge to a noncitizen voting case was raised in March by Christian Erazo Valdez, a citizen of Ecuador, according to records from the federal court in Madison, Wisconsin. He was charged in October with voting in the 2024 presidential election. A ruling on his motion for dismissal is expected soon.
Another judge will hear oral arguments on Tuesday on the constitutional argument.
U.S. District Court Judge David Leibowitz in Miami is overseeing a case against Chelsea Cox, a Jamaican woman charged with voting in the 2020 federal election. In June, he signaled that he wanted outside advice on the constitutionality of the statute.
The judge enlisted Paul Clement, former solicitor general in the administration of Republican President George W. Bush, who submitted a 43-page report to the court in July that said Congress likely did not have authority to enact the law, although he also said it was “not entirely clear-cut.”
In addition to the five cases, a judge in a sixth case denied a defendant’s motion for dismissal, siding with the Justice Department. That was Judge Jacqueline Becerra in Miami on September 9 in a case against Wilner Renaud, a Haitian citizen who entered the United States in 1993, according to court records.
Renaud had a pending application for U.S. citizenship when he voted in the 2022 federal election and told government investigators he thought he was a U.S. citizen, according to court records. Renaud’s case went to trial on Monday.
(Reporting by Tom Hals in Wilmington, Delaware; editing by Amy Stevens and Cynthia Osterman)
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