Lawsuit challenges constitutionality of counting ballots received after Election Day

Eighteen states and the District of Columbia allow absentee ballots received after Election Day to be counted for days afterward, as long as the envelope bears a pre-Election Day postmark. But the constitutionality of North Dakota’s law has been challenged in federal court by Burleigh County Auditor Mark Splonskowski, who says state law contradicts federal election laws requiring ballots to be counted the same day as the election.

The lawsuit was filed on behalf of Splonskowski by the Public Interest Legal Foundation, a public interest law firm that focuses on election integrity.

“Election Day has ceased to be a day,” said PILF President, J. Christian Adams. “Instead, we have election month because states accept ballots that arrive days and even weeks after Election Day. Not only does this lead to distrust and chaos in the system, but it also violates federal law. PILF is fighting to end this lawlessness and restore the day in Election Day.”

If successful, late-arriving ballots that meet current requirements would no longer be accepted and counted for up to 13 days after the election in North Dakota, according to Forum News.

A Burleigh County official wants North Dakota to stop counting ballots that are received after Election Day.

Burleigh County Auditor Mark Splonskowski filed a federal lawsuit Wednesday, July 5, asking the U.S. District Court in North Dakota to decide the constitutionality of North Dakota law when it comes to accepting ballots after Election Day. Federal law conflicts with North Dakota Century Code, putting him at risk of criminal prosecution if he “chooses incorrectly” which law to enforce, Splonskowski’s lawsuit claimed.

“North Dakota law and Defendant’s enforcement of it harm Mr. Splonskowski because they put him in the position of having to choose between dictates of state law to accept and allow votes to be cast after Election Day and federal law that requires a single election day,” the civil complaint said.

The lawsuit notes that 294 absentee ballots in 53 North Dakota counties were received after Election Day 2022, resulting in 212 being accepted and added to the totals. Burleigh County alone logged 53 late ballots with 30 added to the final results. One ballot without a postmark was also counted, according to the court filing. The nearly two-week window to include late ballots to the tally can delay announcement of the final results.

Some, including Splonskowski in his lawsuit, have criticized mail-in ballots as allowing elections to last beyond Election Day, with residents not knowing who their elected officials are until days later.

“Federal law prescribes votes to be tabulated on Election Day, as every mention of the day is singular, and not plural,” Splonskowski said in his lawsuit.

The legal filing even includes a political cartoon to illustrate the extent to which Election Day standards and expectations have been lowered in recent years.

The cartoon could become a relic of the past if the plaintiffs prevail and the court bans counting absentee ballots after Election Day, not only in North Dakota but potentially also in 17 other states and the District of Columbia, as well.