Eighteen states, DC accept ballots after Election Day, with North Dakota’s deadline facing lawsuit

North Dakota is facing a lawsuit over its acceptance of mail-in ballots 13 days after Election Day and is among 18 states and Washington, D.C., that accept and tabulate ballots post-election.

The lawsuit, which was filed Wednesday against North Dakota State Election Director Erika White, alleges that the state's law to accept ballots up to 13 days after Election Day violates federal law.

For absentee ballots to be accepted by mail in North Dakota, they must be postmarked the day before Election Day and received before the county’s canvassing board meets, which is the 13th day after the election. The state's law was changed in 2021 to extend a 6-day deadline for accepting ballots after the election to 13 days, according to PILF.

According to federal law, the lawsuit contends, Election Day is one day.

The filing states, “Federal law prescribes votes to be tabulated on Election Day, as every mention of the day is singular, and not plural.”

The Public Interest Legal Foundation filed the lawsuit on behalf of Burleigh County Auditor Mark Splonskowski.

North Dakota is a red state, with Sen. John Hoeven (R) winning reelection in 2022 with 56.5% of the vote, over the Democratic nominee who received 25%, and the independent with 18.5%.

In the 2020 presidential election, then-President Donald Trump won the state with 65.5% of the vote, compared to then-Democrat presidential nominee Joe Biden’s 31.9%. Republicans also hold a supermajority in the state legislature.

Additionally, North Dakota Gov. Doug Burgum is a candidate in the 2024 GOP presidential primary.

The states and the one U.S. city that accept ballots after Election Day are Alaska, California, Illinois, Kansas, Maryland, Massachusetts, Mississippi, Nevada, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Texas, Utah, Virginia, Washington, D.C., and West Virginia.

The states with the latest deadlines for accepting ballots after Election Day are Illinois and Utah, which are both 14 days.

“Election Day has ceased to be a day," says 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.”

Lauren Bis, PILF director of Communications and Engagement, told Just the News on Monday that the election integrity organization questioned why the election results dragged on in 2022, since it wasn’t a pandemic election like 2020.

The last U.S. House race called in 2022 that didn’t require a recount was Rep. John Duarte’s (R-Calif.) on Dec. 2, followed by Rep. Lauren Boebert’s (R-Colo.) recount that confirmed her win 10 days later.

However, the lawsuit is not specific to last year's elections. 

The North Dakota Secretary of State’s Elections Unit didn’t immediately respond to a request for comment on Monday.

Despite improvement in technology and communication, delays continued post-pandemic, Bis said.

PILF realized that the delays were because “states are accepting ballots after Election Day” and receiving more mail-in ballots now than they did pre-pandemic, she also said. 

“When elections drag on, voters see their candidate winning, then a week later, every day the candidate’s lead is chipped away,” Bis said. She also argued the situation “sows distrust in the process, is corrosive and divisive to the nation” when it “doesn't need to be that way.”

Bis said that “a lot of states had laws for a while” with post-Election Day deadlines for mail-in ballots, but that the delays were the result of the expansion of vote-by-mail during the pandemic, and as some states have all mail-in voting.

She noted that Florida requires absentee ballots to be delivered by Election Day, which is how the state went from “worst to first” in its elections.

While PILF is suing North Dakota, Judicial Watch is suing the Illinois State Board of Elections for its 14 days of accepting ballots after Election Day. The lawsuit is ongoing and also makes the argument that federal law requires Election Day be a single day.

Bis said that the plaintiff is “seeking clarity about his obligations” in his capacity as the county auditor “because he has to choose to violate state or federal law” while administering elections.

As the U.S. is “one of the best democratic republics in world,” Americans “can’t have our elections being a laughingstock,” Bis said.

“Let’s fix the problem” and have election results by election night or next morning at the latest, she also said.