WILMINGTON
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.