As President Donald Trump seeks to intensify his crackdown on what he characterizes as widespread illegal voting by noncitizens, several individuals charged with that crime are attempting a novel legal strategy to get their federal cases dropped entirely.

According to a Reuters review of court filings, five people being prosecuted in separate federal cases in Miami and Madison, Wisconsin, have argued for the very first time in court that the 1996 law used to charge them is unconstitutional.

A favorable ruling for the defense, which could arrive before the November 3 midterm elections, would raise serious questions about the federal government’s authority to prosecute noncitizen voting cases. The Trump administration has aggressively pushed to deport noncitizens accused of voting, raising the stakes for defendants who previously faced penalties as small as a $150 fine if convicted.

The defendants stand accused of violating the federal “Voting by Aliens” statute enacted nearly 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 Reuters identified, defendants have asserted that the constitutional right to determine voter qualifications belongs exclusively to U.S. states. While every state requires voters to be citizens, defendants argue that it is up to state governments to prosecute any violations, not the federal government.

Trump’s Justice Department has argued that the Supreme Court has repeatedly recognized Congress’s clear authority to protect election integrity 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 state elections but focuses directly on immigration, an area where Congress holds explicit constitutional authority to legislate. The statute was part of the sweeping Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which prosecutors compared to congressional limits on foreign campaign contributions that courts have upheld.

Defendants across the five cases hope presiding judges rule to dismiss the charges on constitutional grounds before their trials begin. The first trial is set for October 5, with the final trial scheduled to start on December 14.

Trump, who has repeatedly made unsubstantiated claims regarding widespread voter fraud while questioning the legitimacy of U.S. election outcomes, has asserted that noncitizen voting is a widespread problem that undermines the overall integrity of American polls.

However, a Reuters analysis published on July 19 showed noncitizen voting is exceptionally rare. Only 129 people have been charged in the law’s 30-year history. The typical defendant was a lawful permanent resident with deep community ties who voted in the mistaken belief they were permitted to do so.

In the midterm elections, when presidents’ parties typically suffer losses, Trump’s Republicans are fighting to retain control of Congress. Experts have noted that the president’s repeated assertions about widespread noncitizen voting could be intended to sow doubts about the election’s legitimacy if Democrats gain control of Congress.

Until Trump’s second term, most defendants charged with noncitizen voting negotiated deals to plead guilty and were often sentenced to fines of around $150, similar to a standard traffic ticket.

However, the Trump administration began pushing to deport noncitizen voters last year, raising the stakes for defendants.

The initial constitutional challenge in a noncitizen voting case was raised in March by Christian Erazo Valdez, an Ecuadorian citizen, according to federal court records in Madison, Wisconsin. He was charged in October with voting in the 2024 presidential election, and a decision on his dismissal motion is expected soon.

Another judge is scheduled to hear oral arguments on the constitutional argument Tuesday.

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 said he wanted outside legal advice on the statute’s constitutionality.

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 stating Congress likely lacked authority to enact the law, though he noted the legal issue was “not entirely clear-cut.”

In a sixth case, a judge denied a defendant’s motion to dismiss, siding with the Justice Department. Judge Jacqueline Becerra in Miami issued that ruling on September 9 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 believed he was already a U.S. citizen, according to court records. Renaud’s case went to trial on Monday.