By Matthew Vadum
An election integrity group is suing North Dakota to block its law that allows the state to accept and count mail-in ballots so long as they arrive within 13 days after Election Day.
There are reportedly 18 states, plus the District of Columbia, that accept mailed ballots that are delivered after Election Day. Congress created an exception to the law for military and overseas voters, whose mailed-in ballots are counted even if they arrive after Election Day.
If the new federal lawsuit is successful, it could lead to other lawsuits that aim to compel election officials in other states to stop accepting ballots that come in after Election Day.
Democrats vigorously oppose efforts to curtail mail-in voting but then-President Donald Trump criticized the practice on Sept. 23, 2020.
Mr. Trump said at the time that mail-in “ballots are out of control.”
“You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else.”
The next day Mr. Trump said that voting by mail was “a whole big scam.”
Although states run elections within their borders, federal law mandates that there be a single national Election Day, according to the Public Interest Legal Foundation (PILF), the group that filed the lawsuit (pdf) on July 7.
“Election Day has ceased to be a day,” J. Christian Adams, president of PILF, said in a statement. Adams was previously an attorney at the U.S. Department of Justice.
“Instead, we have election month because states accept ballots that arrive days and even weeks after Election Day,” Mr. Adams said. “PILF is fighting to end this lawlessness and restore the ‘day’ in Election Day.”
Congress enacted a single statutory Election Day in order to address chaos and protracted uncertainty surrounding elections in the 1800s, the legal complaint says.
Rep. Benjamin Franklin Butler of Massachusetts, a Democrat who became a Republican and then later switched back to Democrat, sponsored the legislation in 1871.
Mr. Butler said the purpose of the law was “to provide a uniform time of electing Representatives in Congress… But on account of the facility for colonization and repeating among the large central States, New York holding its election in November, and Ohio, Pennsylvania, and Indiana holding their elections in October, the privilege is allowed the border States, if any man is so disposed, of throwing voters across from one into the other.
“I think it will be fair for everybody that on the day when one votes all should vote, and that the whole question should be decided then.”
But because North Dakota allows ballots to arrive and be counted as many as 13 days after Election Day despite federal law, the “whole question” of the identity of the new officeholder cannot be decided on Election Day because North Dakota keeps accepting ballots after that day, the complaint says.
The plaintiff, Mark Splonskowski, a Republican, is the County Auditor of Burleigh County, North Dakota. He is suing the defendant, Erika White, in her official capacity as North Dakota’s state election director.
Mr. Splonskowski argues that North Dakota law and the defendant’s enforcement of it harm him 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.”
If he chooses incorrectly, he is subject to criminal penalties. He is seeking a judgment declaring the state’s extension of Election Day to be unlawful and an injunction blocking the laws that provide for the extension, according to the complaint.
‘Singular, Not Plural’
“Federal law requires a single national Election Day to be held on the first Tuesday after the first Monday in November,” PILF’s director of media affairs, Lauren Bowman Bis, told The Epoch Times in an interview.
“Every mention of Election Day in federal law—it only says ‘day’—it’s singular, not plural,” Ms. Bis said.
“So the whole point of the lawsuit is that accepting ballots that arrive after Election Day violates federal law. And it has nothing to do with early voting or anything like that. It’s all about ballots that would come after that Election Day,” she said.
“It’s got to be in election officials’ hands on Election Day because that’s what the federal law requires—a single national Election Day.
“Part of the reason that we’re going after this is since the pandemic, in our elections in 2020 and 2022, we’ve seen this drag on and on as people are counting these results, and it’s leading to distrust in the system as people might see their candidates winning, and three days later, their lead is getting chipped slowly away,” she said.
“It’s leading to distrust and a lack of confidence in the system. Up until recently, we would always know our election results on either election night or that next morning. You wake up and you’d know.”
Elections now are prolonged because states are “accepting ballots up to two weeks after Election Day arrives, and North Dakota has one of those very long extensions—the 13 days.”
“It’s bad overall for our elections process,” Ms. Bis said.
“We’ve got to get this system back to how it used to be,” she added.