The Trump administration is advancing a legal challenge over noncitizen voting that could soon reach the Supreme Court, testing whether federal law can override states’ authority to set election rules. The latest dispute involves a lawsuit against California, where the Department of Justice (DOJ) is demanding that the state separate and review approximately 20,000 mailed ballots from registered voters the administration suspects are noncitizens. The case is currently before a federal district court after the 9th Circuit Court of Appeals rejected the DOJ’s emergency appeal, but legal analysts anticipate the Supreme Court will eventually weigh in on the matter.
The DOJ’s position is based on 18 U.S.C. § 611, a federal statute that prohibits noncitizens from voting in congressional elections. However, applying this law raises two key constitutional concerns. First, the statute may exceed Congress’s power to regulate voter eligibility for federal elections—a responsibility the Constitution assigns to the states. Second, even if the law is valid, it does not authorize the DOJ to intervene in how states conduct elections, a matter governed by Article I, Section 4 of the Constitution.
The Elections Clause (Article I, Section 4) allows Congress to regulate only the process of elections, not the eligibility of voters. This distinction was clarified in Arizona v. Inter Tribal Council of Arizona (2013), where Justice Antonin Scalia ruled that Congress could establish procedures for elections but not dictate who may participate. The Founders deliberately separated these powers to prevent federal overreach, as James Madison warned that congressional control over voter qualifications could “by degrees subvert the Constitution.”
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DOJ’s Lawsuit Violates State Election Powers
The DOJ’s lawsuit against California disregards this framework. Section 611 criminalizes noncitizen voting in congressional elections, regardless of state law. But if a state permits noncitizens to vote in state or local races, the statute would require excluding those voters from federal elections, a clear violation of state authority. A federal district court in Florida recently struck down the statute on these grounds, and former U.S.
Even if § 611 were constitutional, it would not justify the DOJ’s demand to alter California’s election procedures. Congress would need to enact a separate law under Article I, Section 4 to override state rules, a power it has not exercised since the 1871 Enforcement Act, which was repealed in 1894. The last time federal courts intervened in a state’s election counting was in Bush v. Gore (2000), but that challenge came from a candidate, not the DOJ.
Historically, courts have resisted federal interference in state-run elections. In 1948, Justice Hugo Black blocked a federal challenge to Texas’s Senate race, ruling that no law authorized courts to suspend a state’s election process. The DOJ’s current effort would require congressional authorization, a step never taken for noncitizen voting. Without explicit permission, the lawsuit could establish a precedent allowing the federal government to dictate election procedures during campaigns, undermining state-administered races.
Federal Courts Lack Authority to Reshape Ballots
The DOJ’s argument also conflicts with constitutional limits on federal enforcement. While § 611 criminalizes noncitizen voting, it does not delegate authority to federal courts or the DOJ to modify state election procedures. The Elections Clause (Article I, Section 4) reserves to states the default power to set election rules unless Congress acts to replace that authority. No such displacement exists here: § 611 remains a standalone criminal provision without directives for federal agencies to enforce it by reshaping state ballot processes.
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Congress has historically avoided such interventions. The 1871 Enforcement Act, which briefly allowed federal supervisors to challenge congressional votes, was repealed by 1894 after Reconstruction. The Voting Rights Act of 1965, designed to combat racial discrimination, did not empower the DOJ to intervene in ballot counting for excluding noncitizen voters. Instead, its enforcement focused on ensuring equal voting access, not redefining state-administered rules. The absence of modern federal statutes granting the DOJ this power strengthens California’s argument that its demand is legally unsupported.
The Supreme Court now faces a choice: whether to uphold a strict separation of powers or permit federal agencies to override state election laws under criminal statutes. If the Court aligns with California, it would reinforce that states, not Congress, determine voter qualifications for congressional elections, as established in Arizona v. Inter Tribal Council of Arizona (2013). Justice Scalia’s opinion in that case rejected federal control over voter eligibility, warning of potential constitutional erosion. The Court’s refusal to expand federal authority would align with its past reluctance to intervene in state elections, as seen in Lyndon B. Johnson v. Coke Stevenson (1948), where Justice Black barred federal courts from halting a state’s ballot-counting process without clear statutory authorization.
Ruling Could Redefine Voting Rights Nationwide
The legal implications extend beyond California. If § 611 is upheld as written, it would force states to exclude noncitizen voters from congressional elections even if they allow such voting in state or local races, a direct contradiction of the Elections Clause. Federal courts in Florida have already rejected this interpretation, ruling that § 611 cannot override state voter-qualification laws. Clement’s amicus brief reinforced this argument, noting that the statute’s language, criminalizing noncitizen voting “regardless of state law”, clashes with the Constitution’s clear delegation of voter-qualification authority to the states.
