Congress established Election Day. Courts need to ensure it doesn’t become Election Month
Washington Examiner
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When Election Day actually lasts for weeks, logic says something is wrong with the system. Now, there’s a lawsuit that compellingly argues that extending deadlines past Election Day violates federal law as well.
Plaintiff Mark Splonskowski, the county auditor of Burleigh County, North Dakota, deserves to win the suit. His victory should, in a just world, set a precedent for states across the nation to end their practices of allowing vote deadline leniency. It shouldn’t take weeks after Election Day just to start counting some votes, not to mention actually seeing final results.
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North Dakota’s system is particularly egregious. There, ballots can still be counted even if they arrive up to 13 days after Election Day. Utah and Illinois are among other states that, like North Dakota, merely require that mail-in ballots be postmarked, but not necessarily delivered, by the end of Election Day itself. Illinois had six congressional races close enough for the results to remain in doubt while officials waited for late-arriving ballots.
Such systems obviously delay the announcement of winners. In close races, it causes public confusion, at the very least. Worse, the longer the delays are, the more chance there is for people to suspect skullduggery. Public confidence in election systems, the bedrock of our republic, erodes when results, or the system of delivering results, are so uncertain.
Splonskowski would not have a lawsuit, however, if his only point were to argue that North Dakota’s system is unwise. It’s a good point, but the efficacy of systems is something for legislatures, not courts, to decide. What’s new, and what makes it a court’s responsibility, is that Splonskowski and his counsel, the Public Interest Legal Foundation, make a strong argument that the state’s system violates existing law.
The Constitution explicitly gives Congress the authority to set the time for conducting federal elections. In three separate provisions of federal law, Congress has done so by establishing a nationwide election date of the first Tuesday after the first Monday in November of each even-numbered year. For presidential elections, that date was reinforced earlier this year when President Joe Biden signed the Electoral Count Reform Act.
In all those provisions, the lawsuit notes, “every mention of the day is singular, not plural.”
When Congress originally passed the legislation establishing a nationally uniform Election Day, the bill’s sponsor specifically explained the intent “that on the day when one votes, all should vote, and that the whole question should be decided then.”
Legally, this should not be complicated. All federal courts presented with the question should rule that, no matter what other mail-in provisions exist, all states should require that votes cannot be counted unless they are received by the end of Election Day.
Requiring that ballots be received on Election Day should in no way be a deterrent to ballot access or fairness. Modern technology and lenient early-voting regimes make it abundantly possible for every eligible citizen to vote on time and for votes to be counted quickly. Florida, the third-most populous state, now regularly conducts elections with notably high voter turnout in which it promulgates definitive results within mere hours after its polls close.
Systems of delayed vote acceptance are unnecessary in practice, harmful in effect, and, most importantly, they violate the clear intent of federal law. The North Dakota federal district court should throw out that state’s late-acceptance provision, and all similar practices across the country should be challenged and likewise ruled unlawful. In law, as it is in nature, a “day” is something that doesn’t extend beyond a single rotation of the Earth’s axis.