Burleigh County auditor sues to ban North Dakota from counting ‘late ballots’

BISMARCK — 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 names North Dakota Election Director Erika White as the defendant. Splonskowski has asked the U.S. District Court to declare North Dakota violates federal law by allowing ballots that come in after Election Day to be counted.

He also asked White be banned from enforcing the North Dakota law and training elected officials to accept what he called “late ballots.”

The Secretary of State’s Office, where White works, did not respond to a request for comment. Splonskowski also did not return a message left by The Forum.

North Dakota allows counties to accept absentee ballots in person the day before Election Day. If mailed, the ballot must be postmarked the day before, as well, according to Century Code.

Some mailed ballots may not be received and counted by county officials until days after Election Day. Counties must finalize voting results during a process called canvassing 13 days after Election Day, according to North Dakota law.

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 lawsuit displayed a political cartoon that made fun of the election process. An election official shown in the cartoon holds a piece of paper and says, “Election Day could last weeks.”

The auditor argued in his lawsuit that he could be charged with a Class A misdemeanor if he knowingly excludes a “qualified elector from voting” or allows “an unqualified individual to vote.” That carries a maximum punishment of 360 days in jail.

He also could face charges for failing to properly perform his duty as an election officer and willfully violating the Secretary of State’s rules, according to the civil complaint. If he willfully makes a false canvass of votes, he could be charged with a Class C felony and be subject to five years in prison, the lawsuit said.

“Mr. Splonskowski has no other remedy in law and will suffer serious and irreparable harm to his constitutional rights unless Defendant is enjoined from implementing North Dakota’s laws related to accepting late ballots,” the lawsuit said.

In the November 2022 election, Burleigh County received at least 53 ballots after Election Day, 30 of which were counted, the lawsuit said. One ballot that didn’t have a postmark was counted, according to the complaint.

North Dakota’s 53 counties received almost 300 ballots after the last general election on Nov. 8, with 212 being counted.

Cass County counted 121 ballots that came in legally after Election Day, Cass County Election Coordinator Craig Steingaard said. The Cass County canvassing board decides which ballots to accept, and any that are received late in-person or postmarked on Election Day or afterward are not counted, he said.

“Every county gets to make that decision, too,” he said. “Any ballot that comes in after the canvassing date, that is 13 days after the election, those are not accepted. Those are automatically rejected. They can’t be counted.”

Splonskowski was elected auditor in the 2022 general election in November, winning by 2% over Kirsten Dvorak. That means he did not act as auditor in the last general election, but he would be a part of the canvassing board for the 2024 election and must train election officials who will accept ballots.

Splonskowski resigned in March from the Bismarck City Commission, to which he was elected in June 2020, after Burleigh County State’s Attorney Julie Lawyer expressed conflict of interest concerns if he held both positions.

Attorney David Chapman of West Fargo is representing Splonskowski in the case. Court documents also listed Public Interest Legal Foundation lawyer Noel Johnson as the auditor’s legal counsel.

The Public Interest Legal Foundation is a conservative nonprofit based in Virginia that says it is dedicated to election integrity. It is known for making claims of voter fraud in connection to the 2020 presidential election.

Foundation Board of Directors Chairwoman Cleta Mitchell represented former President Donald Trump in his failed legal efforts to overturn the 2020 election, during which he lost the presidential election to Joe Biden.

In a statement, the organization said the lawsuit is meant to “restore the day in Election Day.”

“Election Day has ceased to be a day,” Foundation President J. Christian Adams said in a statement. “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.”

April Baumgarten joined The Forum in February 2019 as an investigative reporter. She grew up on a ranch 10 miles southeast of Belfield, N.D., where her family raises Hereford cattle. She double majored in communications and history/political science at the University of Jamestown, N.D.