Activists are challenging the expansion of Election Day into a full election season with a new lawsuit aimed at trying to stuff the genie back in the bottle.

The immediate target is North Dakota, which allows ballots to be received and counted for nearly two weeks after the big day. But the broader target is the growing sense that the country has moved beyond the concept of a single day for deciding elections.

“Election Day is supposed to be election day. That’s what Congress said, that’s what people grew up with in this country, and the last two elections it’s become election month,” said J. Christian Adams, president of the Public Interest Legal Foundation.

PILF brought the lawsuit on behalf of Mark Splonskowski, Burleigh County auditor and a member of the county’s election canvassing board in North Dakota. He says he’s forced to violate either state law, which allows ballots to be received and counted up to 13 days after the election, or federal law, which sets “Election Day” as the Tuesday after the first Monday in November.

The question is likely to come down to what counts as casting a ballot.

North Dakota’s law requires mailed ballots to be filled out and postmarked by the day before the election, though the lawsuit alleges they can be counted if they are received before the county canvassing boards meet. That date is 13 days after Election Day.

The state is generous with its absentee policy, allowing anyone to request a mailed ballot without having to give a reason. They can be requested up until the day before the election.

Mr. Splonskowski, in his lawsuit, says in last year’s election at least 212 ballots received after Election Day were counted, including one that was received without a postmark.

The Washington Times has reached out to North Dakota’s secretary of state, which oversees elections, and its attorney general.

Mr. Adams said the issue of post-Election Day ballots grew in importance as states have rushed to embrace expansive absentee and mailed-ballot rules, particularly in the wake of the coronavirus pandemic.

Several cases have risen through the courts involving post-Election Day ballots, but the Supreme Court has largely batted them down without getting to the heart of the issue that Mr. Splonskowski is raising.

Congress first set a national election day in the 1840s, seeking to standardize and speed up what had previously been a month’s worth of voting across different states. In the 1870s, Congress then fixed the day for all federal contests.

Voting in the colonial days and early days of the republic was done in public, with eligible voters showing up at the time and place to announce their vote publicly — and often after being plied with alcohol by the candidates.

Absentee voting became a necessity because of war. Pennsylvania allowed it for troops fighting the War of 1812, and many northern and southern states adopted the practice for 1864. Some voted in person at their Civil War encampments, while others cast ballots through the mail, in what some historians said were the votes that ensured President Lincoln won a second term.

The practice was generally restricted at first, though in recent decades states have moved to expand the reasons for allowing someone to vote early or by mail. Now, some states conduct all-mail elections where every eligible voter is automatically sent a ballot.

The pandemic dramatically expanded the number of jurisdictions with permissive mail-balloting rules, fueling skepticism among some voters about the integrity of elections. Former President Donald Trump criticized mail-in voting as “out of control” in the 2020 election.

Mr. Adams said the delayed counting deadlines allow elections to “linger and linger,” while the ballots are in the hands of the post office.

The lawsuit is seeking a declaration from the U.S. District Court in North Dakota that the state’s law violates the federal law. If Mr. Splonskowski prevails, Mr. Adams said other states could face challenges too.

Congress has already created carve-outs from the law, specifically for military and overseas voters, who are allowed to mail ballots that are received after Election Day.

Mr. Adams says that bolsters his argument because it’s proof that Congress must write exceptions when it wants states to circumvent the national Election Day.

“If there’s going to be an extended election, Congress has to give the specific green light on a specific topic,” Mr. Adams said.

He said ballots cast before Election Day don’t raise the same issues of integrity, since they are in and ready to be counted before the big day arrives.

Federal courts have also already ruled on the issue and found voting beforehand to be in accordance with federal law, he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.