Bismark, N.D. — A federal judge dismissed a lawsuit Friday which sought to challenge the acceptance of mail-in ballots received after Election Day in North Dakota.
U.S. District Judge Daniel Traynor held that a Burleigh County auditor lacked standing to bring the matter and was unable to show he had been harmed by state laws on mail-in voting.
Burleigh County Auditor Mark Splonskowski claimed North Dakota law and federal law are in conflict on the issue of counting mail-in ballots if they are received after the election has ended.
North Dakota’s mail-in absentee ballots may be counted up to 13 days after the election has ended as long as they are postmarked the day before Election Day and received prior to the county’s canvassing board’s meeting.
“According to Splonskowski, following his understanding of federal law will inevitably result in criminal prosecution under North Dakota law because he will have to forego his duty to follow North Dakota election law,” Judge Traynor wrote. “Here, Splonskowski avers he will not comply with North Dakota law.”
in his 12-page ruling, Traynor called the auditor’s stance a “concerning position for an elected official to take.”
“Splonskowski’s oath does not require him to uphold the United States Constitution. It simply requires him to perform his duties as a North Dakota election official to the best of his ability.” Judge Traynor wrote. “Splonskowski is also not conflicted by the controversy he posits in this lawsuit.”
Splonskowski claimed he fears a plausible violation of a criminal statute, or at minimum repercussions stemming from failure to follow his training.
The fear of criminal prosecution was speculative and did not constitute an injury in fact, Traynor found, dismissing the matter for lack of standing.
Splonskowski is backed by the Public Interest Legal Foundation, which maintains on its website’s press release that North Dakota counts ballots for up to 13 days after Election Day.
The press release on the matter did not mention that North Dakota’s mail-in ballot rules require that ballots be postmarked or returned to the designated place of receipt up to the day prior to Election Day.
“Election Day has ceased to be a day,” said the group's 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.”
Former Trump White House communications staffer and PILF spokesperson Lauren Bowman Bis said, “We are disappointed in the court’s ruling. We believe unresolved elections undermine confidence and that federal law should be followed.”
The group's press release names the sole defendant, Erika White, in her capacity as state election director of North Dakota, but said she's done nothing wrong.
“The case does not allege that she (White) engaged in improper conduct or abuse of office,” the group said. “It merely names her as she is the person in her official capacity given the responsibility to enforce a state law that conflicts with federal law.”
Attorneys for the U.S. Justice Department’s Civil Rights Division previously filed a statement of interest in the matter, claiming that state and federal law were consistent in North Dakota and that mail-in ballots guarantee that military and overseas voters have sufficient time for their vote to be counted.
Approximately 29% of North Dakota voters cast their ballots by mail in the November 2022 general election.
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