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Department of Justice weighs in on North Dakota mail-in voting lawsuit

The U.S. Department of Justice is the latest party to get involved in an ongoing lawsuit that seeks to restrict mail-in voting in North Dakota.

The suit targets ballots that are mailed in accordance with the state’s current deadline — which requires that all mail ballots must be postmarked by the day before Election Day — but that aren’t received by election officials until after Election Day. The Department of Justice’s argument is largely in line with other opponents of the suit, pushing back on the idea of an alleged tension between state and federal law regarding these ballots.

Burleigh County Auditor Mark Splonskowski and the Public Interest Legal Foundation, which bills itself as a nonprofit dedicated to election integrity, filed the initial suit in early July against state Election Director Erika White.

Splonskowski and the foundation argue that Splonskowski is forced to decide whether he follows state or federal law, because the state law allows for ballots to be counted up to 13 days after Election Day, while federal law assigns one day as Election Day. In doing so, the suit argues, he is opened up to criminal penalties because counting ballots received after Election Day would go against the notion that there is a singular day for elections. However, in a statement of interest filed Monday, Sept. 11, the Department of Justice indicated it doesn’t see a conflict between federal and state laws.

The U.S. Attorney General’s office is allowed to address issues that pertain to “the issues of the United States in a suit pending in a court of the United States,” according to the filing. The office’s argument is twofold: First, that counting ballots postmarked on or before Election Day is not in violation of federal law, and second, that an absentee ballot deadline like the one North Dakota has in place, which allows for counting after Election Day, protects the rights of overseas Americans and military personnel.

There is a difference between casting a ballot and counting it, the office argues, and ballots that are mailed ahead of or on Election Day constitute as being cast according to North Dakota law. The plaintiffs’ suit doesn’t contend that there should be a deadline for counting ballots if they were received on or before Election Day, meaning they are making the “incorrect assumption” that North Dakota cannot include postmarking a ballot under the definition of casting a vote, according to the office’s filing.

The U.S. Department of Justice’s argument is, at its most base level, making the same claim that both the state Attorney General’s Office and the North Dakota League of Women Voters have argued in previous filings, albeit following different legal approaches.

When the state filed its response to the suit, it also argued that a conflict between federal and state election laws was nonexistent, instead claiming the plaintiffs’ “true aim in this lawsuit is not adjudication of a true conflict, but the improper overthrow of North Dakota law.”

And the League, in partnership with the Campaign Legal Center, filed a motion to intervene in the suit, calling for its dismissal on similar grounds. However, the League’s filing faced opposition from the state, which moved to dismiss the intervention on the basis that all of the League’s concerns are covered by the state’s filing, as its defense is crafted with all voters in the state in mind.

In response, the League pushed back Friday in a filing arguing that the state doesn’t represent its interests as a voter education organization and concerns about the suit’s potential impact on its operation. As a result, the League argued, it should meet the threshold for intervention.

The suit comes amid ongoing discussions about election security and integrity in North Dakota. Last week, the state Emergency Commission approved the use of over $460,000 in federal funds for ballot security moves focusing on integrity for overseas ballots, as well as accessibility for voters with disabilities. That allocation will be reviewed by the Legislative Budget Section for final approval.

In addition, a group of residents is attempting to jump-start a ballot measure that looks to overhaul the state’s election process, most notably by severely restricting mail-in voting, eliminating the use of voting machines and eliminating the state Legislature’s power to add amendments to the North Dakota constitution to a ballot. The group pulled its petition Friday due to complaints about the proposed title the Secretary of State’s office provided for the ballot measure, but intends to resubmit.

The Public Interest Legal Foundation, which partnered with Splonskowski to file his suit, also filed voting-related suits in the wake of the 2020 election, including in Pennsylvania and Arizona, amid former President Donald Trump’s unfounded claims of election fraud.

The plaintiffs have until Friday to respond to the state’s response to their suit, as well as the League and Department of Justice’s filings.