Splonskowski v. White

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Mark Splonskowski,
Plaintiff,
vs.
Erika White, in her capacity as State Election
Director of North Dakota,
Defendant.
Case No. 1:23-cv-00123
ORDER GRANTING MOTION TO DISMISS FOR LACK OF JURISDICTION,
FINDING AS MOOT MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM,
AND FINDING AS MOOT MOTION TO INTERVENE
INTRODUCTION
[¶1] 	THIS MATTER comes before the Court on a Motion to Dismiss for Lack of Jurisdiction
and Motion to Dismiss for Failure to State a Claim filed by the Defendant Erika White (“White”)
on August 7, 2023. Doc. No. 9. Plaintiff Mark Splonskowski (“Splonskowski”) filed a Response
on September 5, 2023. Doc. No. 17. The United States filed a Statement of Interest in this case on
September 11, 2023. Doc. No. 19. White filed a Reply on September 22, 2023. Doc. No. 25. For
the reasons set forth below, White’s Motion to Dismiss for Lack of Jurisdiction is GRANTED
and, in light of this, White’s Motion to Dismiss for Failure to State a Claim is MOOT.
[¶2] 	Also before the Court is a Motion to Intervene as Defendant filed by the League of Women
Voters of North Dakota (“the League”). Doc. No. 13. White filed a Response on September 1,
2023. Doc. No. 16. The League filed a Reply on September 8, 2023. Doc. No. 18. Splonskowski
filed a Response on September 15, 2023. Doc. No. 23. The League filed a Reply on September 22,
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2023. Doc. No. 24. Because the Court concludes Splonskowski lacks standing to bring this lawsuit,
the League’s Motion to Intervene is MOOT.
BACKGROUND
[¶3] 	The facts as alleged in the Complaint are relatively unremarkable. Federal election law
fixes the Tuesday after the first Monday in November in every even-numbered year as the date for
federal elections. Doc. No. 1, ¶ 15. North Dakota permits mail-in absentee ballots as long as they
are post-marked the day before election day and received prior to the county’s canvassing board’s
meeting. Id. at ¶ 19. County canvassing boards in North Dakota meet on the thirteenth day after
each election. Id. at ¶ 20. If the absentee ballots in North Dakota are post-marked the day prior to
the election day and received by the canvassing board before it meets, that ballot must be counted.
Id. at ¶ 21.
[¶4] 	Burleigh County Auditor Mark Splonskowski (“Splonskowski”) believes North Dakota’s
process violates federal election law. He claims that by following North Dakota’s law he will
violate federal law. Conversely, he alleges that by following federal law and only counting ballots
cast on election day, he will run afoul of North Dakota’s law. According to Splonskowski,
following his understanding of federal law will inevitably result in criminal prosecution under
North Dakota law because he will have to forego his duty to follow North Dakota election law.
See id. at ¶¶ 31-34. Here, Splonskowski avers he will not comply with North Dakota law. See Doc.
No. 17, pp. 10 (“Mr. Splonskowski’s intent to choose federal law and disregard state law includes
the specific facts (or acts) necessary to establish the injury he justifiably fears—namely, a plausible
violation of a criminal statute, or at minimum, repercussions stemming from failure to follow
Director White’s training.”).
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[¶5] 	Because of this understanding, Splonskowski has filed a Complaint against North Dakota
Election Director Erika White (“White”). Doc. No. 1 at ¶ 12. White is sued in her official capacity
and is responsible for administering elections in North Dakota. Id. The Court previously found
Splonskowski brought this action in his official capacity as Burleigh County Auditor. 1 Doc. No.
22.
DISCUSSION
[¶6] 	White argues Splonskowski lacks standing to bring this lawsuit. In making this claim,
White contends (1) Splonskowski’s risk of criminal prosecution is speculative and does not
constitute an injury in fact; (2) Splonskowski cannot show standing based on a theory of pre-
enforcement review; (3) an alleged conflict between state and federal law does not create an injury;
(4) Splonskowski cannot show White, as State Elections Director, would cause any injury to
Splonskowski; and (5) Splonskowski cannot show redressability.
[¶7] 	Splonskowski disagrees with White, arguing he has standing for several reasons. First,
Splonskowski claims his risk of injury—potential criminal prosecution if he fails to abide by North
Dakota election law—is sufficient to establish pre-enforcement review. Second, he argues White
is the direct cause of his potential future injury. Third, Splonskowski contends he adequately
pleads redressability because he seeks both a declaration the North Dakota law is contrary to
federal law and injunctive relief to prevent White from informing Splonskowski of his duties to
1 The Court reiterates its concern with Splonskowski bringing this action without the approval of
the Burleigh County Commission. See Doc. No. 22. As previously stated, it appears to this Court
North Dakota law requires permission or authorization by the County Commission for a county
official to commence a lawsuit of this sort. See id. This analysis, however, is moot because
Splonskowski fails to establish the traditional elements of standing as required for this Court to
assert subject matter jurisdiction over the Complaint, as discussed in more detail below.
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count ballots under North Dakota law. Fourth, Splonskowski claims he has oath-of-office standing
because he swore an oath to uphold and defend the United States Constitution.
[¶8] 	In reply, White points out Splonskowski misconstrues the law governing pre-enforcement
review because such review does not apply when the statute being enforced is different from the
statute being challenged. White also argues Splonskowski fails to establish a constitutional interest
at play in this case. Finally, White reiterates her arguments regarding Splonskowski failing to show
causation and redressability. The Court agrees with White that Splonskowski lacks standing.
[¶9] 	It has long been established that the Court’s constitutional authority permits it only to hear
actual cases or controversies. Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37
(1976) (“No principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies.”). The doctrine of standing to sue is “rooted in the traditional understanding of a
case or controversy.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Because Splonskowski
seeks federal jurisdiction, he must establish he “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). This standard “limits the category of litigants empowered to maintain a lawsuit in federal
court to seek redress for a legal wrong.” Id. In making this determination, “courts should assess
whether the alleged injury to the plaintiff has a ‘close relationship’ to a harm ‘traditionally’
recognized as providing a basis for a lawsuit in American courts.” TransUnion LLC v. Ramirez,
594 U.S. 413, 425 (2021). At the pleading stage, the Complaint must contain clear allegations of
facts that demonstrate each element. Warth v. Seldin, 422 U.S. 490, 518 (1975); Spokeo, 578 U.S.
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at 338. Splonskowski has failed to establish the injury in fact and causation elements of standing
and has failed to show he has “oath-of-office” standing.
I. 	Injury in Fact
[¶10] 	To establish an injury in fact, the Complaint must allege facts that show the injury is (1)
concrete and particularized and (2) actual and imminent as opposed to hypothetical or conjectural.
Lujan, 504 U.S. at 560. The injury must be “the actual or imminent invasion of a concrete and
particularized legal interest.” Kuehl v. Sellner, 887 F.3d 845, 850 (8th Cir. 2018) (quoting Sierra
Club v. Kimbell, 623 F.3d 549, 556 (8th Cir. 2010)). It is possible future injury may constitute
injury in fact. In re SuperValu, Inc., 870 F.3d 763, 768-69 (8th Cir. 2017). In such a case, “the
plaintiff must demonstrate that ‘the threatened injury is “certainly impending,” or there is a
“‘substantial risk’ that the harm will occur.”’ Id. (quoting Susan B. Anthony List v. Driehaus, 573
U.S. 149, 158 (2014) (quoting in turn Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013))).
[¶11] 	Splonskowski contends he has alleged sufficient facts to establish injury in fact because he
has satisfied the requirements of pre-enforcement review. The Court disagrees. Pre-enforcement
suits are permissible in limited circumstances when there are allegations of “an intention to engage
in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute,
and there exists a credible threat of prosecution thereunder.” Susan B. Anthony List, 573 U.S. at
160 (quoting Babbit v. Farm Workers, 442 U.S. 289, 298 (1979)). When challenging a criminal
statute, a party does not need to be exposed to arrest or prosecution before bringing a claim against
it. St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 485 (8th Cir. 2006).
[¶12] 	Splonskowski is not entitled to pre-enforcement review standing for several reasons. First,
he does not challenge the criminal statute under which he would be subject to criminal penalties.
The Complaint expressly challenges the validity of N.D.C.C. chapters 16.1-07, 16.1-11.1, and
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16.1-15, which establish North Dakota’s ballot receipt and counting requirements. See Doc. No.
1, p. 9, ¶¶ A, B, C. The prohibitions on action, however, are found at N.D.C.C. section 16.1-01-12
and the criminal penalties are found at N.D.C.C. section 12.1-11-06 (“Any public servant who
knowingly refuses to perform any duty imposed upon him by law is guilty of a class A
misdemeanor.”). Neither of these statutes are actually challenged by Splonskowski.
[¶13] 	In the pre-enforcement context, this failure is fatal. Under Susan B. Anthony List, the
threatened prosecution must be contained within the same statute proscribing the alleged conduct.
Susan B. Anthony List, 573 U.S. at 160. Splonskowski is allegedly subject to criminal prosecution
under a separate statute than the ones he claims conflict with federal election law. He is not subject
to criminal prosecution under any of the statutes mandating his duties as a member of the
canvassing board. See, e.g., Penkoski v. Bowser, 548 F.Supp.3d 12, 30 (D.D.C. 2021) (“[P]re-
enforcement challenges are limited to where the threat of enforcement stems from the challenged
law itself.”); Kearns v. Cuomo, 415 F.Supp.3d 319, 329 (W.D.N.Y. 2019), aff’d, 981 F.3d 200 (2d
Cir. 2020) (“A plaintiff asserting standing on [pre-enforcement] grounds necessarily cannot satisfy
the essential requirement identified by the Supreme Court in Babbitt—that the plaintiff allege an
intention to engage in a course of conduct proscribed by the challenged statute.”). Accordingly, on
this ground alone, Splonskowski lacks standing.2
[¶14] 	The Complaint also fails to allege a constitutional interest. Under Susan B. Anthony List,
the statute at issue must ostensibly prohibit the exercise of a specific constitutional right. 573 U.S.
at 159. Apart from vague assertions of Splonskowski’s “constitutional rights” being violated, he
has failed to identify any specific constitutional provision or Amendment that will be violated if
2 Splonskowski essentially concedes this omission, claiming “there is no requirement that
challenged statute exclusively prescribe the plaintiff’s course of conduct.” Doc. No. 17, p. 11.
Splonskowski provides no caselaw to support this contention and the Court could find none.
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he does not get the relief he seeks. Indeed, the cases on which Splonskowski relies depend on a
potential violation of a particular constitutional right, typically the First Amendment. For example,
in Gaertner, 439 F.3d at 484, the appellants refrained from making political contributions out of
fear they may be penalized under Minnesota law. They brought a claim for violation of their First
Amendment rights to engage in political and campaign activities. Id. 	The Eighth Circuit held,
“[t]he chilling of Appellants’ First Amendment rights is also an injury that supports their standing
to bring suit.” Id. at 487.
[¶15] 	In Animal Legal Defense Fund v. Vaught, 8 F.4th 714, (8th Cir. 2021), “[t]he complaint
sought an order that would prevent [the defendants] from bringing a civil suit against plaintiffs
under an Arkansas statute.” Id. at 717. The statute, the plaintiffs argued, violated their rights to
free speech under the First Amendment. Id. The Eighth Circuit found the complaint adequately
alleged the standing elements, holding “[the] conduct is arguably affected with a constitutional
interest, because ‘the creation and dissemination of information are speech within the meaning of
the First Amendment.’” Id. at 718 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011)).
[¶16] 	The Complaint contains only vague allegations of Splonskowski’s constitutional rights
being 	violated 	and 	fails 	to 	allege 	with 	specificity 	the 	precise 	constitutional 	provisions
Splonskowski would be required to violate if he enforced North Dakota law. Accordingly, the
claims are not “arguably affected with a constitutional interest.” See Susan B. Anthony List, 573
U.S. at 160 (pre-enforcement standing permitted only when the claims are “arguably affected with
a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution
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thereunder.”). Splonskowski has not made an argument his constitutional rights have or will be
violated.3 This defeats his claim for standing.
II. Causation
[¶17] 	Splonskowski argues the Complaint establishes the purported injury (potential criminal
prosecution) and it is fairly traceable to White’s conduct. According to Splonskowski, White is
responsible for administering North Dakota election law and provide training to Splonskowski
regarding North Dakota’s requirements because her training has “legal significance.” White argues
Splonskowski fails to address the fact that White’s training cannot cause Splonskowski harm
because (1) Splonskowski has determined North Dakota’s election law contradicts federal election
law4 and (2) Splonskowski has already declared he will not abide by North Dakota’s laws.
[¶18] 	To establish causation, Splonskowski must show his alleged injury is “fairly traceable to
the challenged action of the defendant, and not the result of the independent action of some third
party not before the court.” Agred Foundation v. United States Army Corps of Engineers, 3 F.4th
1069, 1073 (8th Cir. 2021) (quoting Lujan, 504 U.S. at 560) (quotation marks omitted)). The
connection between the action of the defendant to the purported injury of the plaintiff must be
3 But Splonskowski’s proposed conduct may impinge upon the voting rights of members of the
United States military and United States citizens living abroad. Technically, the Complaint does
not challenge the North Dakota Century Code provision authorizing ballot receipts from military
and overseas citizens (N.D.C.C. §§ 16.1-07-24 and 16.1-07-26). See Doc. No. 19, p. 10. If given
the relief he asks for here—that is, invalidation of North Dakota’s general absentee ballot
statutes—the same reasoning could be utilized against overseas citizens and members of the United
States military’s rights to vote. This, indeed, is a concerning position for an elected official to take.
4 The Court notes the unusual steps taken by Splonskowski in initiating this matter. He should
have asked his local State’s Attorney for an opinion regarding the alleged conflict between North
Dakota and Federal election law. See N.D.C.C. § 11-16-01(1)(i) (providing the local State’s
Attorney must “[g]ive, when requested and without fee, the state’s attorney’s opinion in writing to
the county, district, township, and school district officers on matters relating to the duties of their
respective offices.”). If he really believed there was a conflict, he should have sought counsel from
the State’s Attorney rather than filing the instant lawsuit with the help of independent legal counsel.
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sufficiently direct and not “overly attenuated.” Agreed Foundation, 3 F.4th at 1069 (quoting
Dantzler, Inc. v. Empresas Berrios Inventory & Operations, Inc., 958 F.3d 38, 47 (1st Cir. 2020)).
[¶19] 	Splonskowski relies on Worth v. Harrington to support his claim for causation. In Worth,
the court found the Minnesota Commissioner of Public Safety was a proper defendant for
plaintiff’s claim for declaratory and injunctive relief against a Minnesota statute that placed age
limits on permits to publicly carry a firearm. ___ F. Supp. 3d ___, 2023 WL 2745673, *20 (D.
Minn. March 31, 2023). The Minnesota Statute, however, mandated the Commissioner to facilitate
the age-restricted permit application process by creating and promulgating application forms,
among other duties. Id.
[¶20] 	Here, White is not required to do anything by statute. White concedes she informs people
of North Dakota’s election law requirements. But she is not statutorily mandated to ensure the
ballot receipt deadlines in the manner the Commissioner was in Worth. Indeed, White is not a
department head. She is not the Secretary of State. She is an employee tasked with informing
Splonskowski of his legal requirements on the election board. Even if White were statutorily
required to provide such training, as discussed above, her trainings do not cause the alleged injury
because, among other reasons, Splonskowski has already decided to violate North Dakota law.
[¶21] 	Assuming 	White’s 	training 	has 	“legal 	significance,” 	as 	Splonskowski 	contends,
Splonskowski has essentially conceded it is meaningless. If the Court were to enjoin White from
providing election law training as Splonskowski asks, it would not make a difference. Whether she
acts according to her duties or not, Splonskowski states he will violate North Dakota law. The only
cause for his potential injury is himself because he states he will violate North Dakota election
law. This is deeply concerning to the Court that an elected official openly advocates for violating
the law he was elected to enforce because he has independently concluded it contradicts federal
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law. Another North Dakota official may have to take action against Splonskowski under the
circumstances, but that official is not White. Indeed any potential injury Splonskowski will face
would most likely be caused by the Burleigh County State’s Attorney who is charged with
prosecuting violations of North Dakota’s criminal laws.5 N.D.C.C. § 11-16-01(1)(a) (The state’s
attorney is the public prosecutor, and shall: a. Attend the district court and conduct on behalf of
the state all prosecutions for public offenses.”). 	White has no authority to bring such an
enforcement action and the Burleigh County State’s Attorney is not before the Court. See Agred
Foundation, 3 F.4th at 1073 (injury cannot be “the result of the independent action of some third
party not before the court”).
[¶22] 	In sum, White is not a potential cause for Splonskowski’s alleged injuries because she has
no enforcement authority. She cannot bring a criminal action against Splonskowski. Her role is
simply educational, not prosecutorial. Even assuming he has alleged an adequate injury,
Splonskowski fails to allege adequate causation.
III. Oath of Office Standing
[¶23] 	Splonskowski also argues he has “oath-of-office” standing. Splonskowski relies on Bd. of
Educ. v. Allen, 392 U.S. 236, 241, n.5 (1968), which noted:
Appellees do not challenge the standing of appellants to press their claim in this
Court. Appellants have taken an oath to support the United States Constitution.
Believing s 701 to be unconstitutional, they are in the position of having to choose
between violating their oath and taking a step—refusal to comply with s 701—that
would likely bring their expulsion from office and also a reduction in state funds
5 As noted above, Splonskowski should have posed the question presented in this lawsuit to his
local State’s Attorney. He may wish to do so before the next election as it may avoid his potential
prosecution under N.D.C.C. § 12.1-11-06 (“Any public servant who knowingly refuses to perform
any duty imposed upon him by law is guilty of a class A misdemeanor.”) or removal from office
under N.D.C.C. § 44-11-01 (providing the governor of North Dakota authority to remove county
officials, including county auditors, “whenever it appears to the governor by a preponderance of
the evidence after a hearing as provided in this chapter, that the officer has been guilty of
misconduct, malfeasance, crime in office, [or] neglect of duty in office.”).
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for their school districts. There can be no doubt that appellants thus have a “personal
stake in the outcome” of this litigation. Baker v. Carr, 369 U.S. 186, 204 (1962).
There was no more discussion of standing in Allen. See id.
[¶24] 	Allen is inapplicable here. The Complaint claims Splonskowski’s oath required him to
“solemnly swear” to “support the Constitution of the United States and the Constitution of the
State of North Dakota.” Doc. No. 1, ¶ 43. As a matter of law, this oath is incorrect. As an election
board official, he would take the following oath:
I do solemnly swear (or affirm as the case may be), that I will perform the duties of
inspector, judge, or clerk (as the case may be) according to law and to the best of
my ability, and that I will studiously endeavor to prevent fraud, deceit, and abuse
in conducting the same.
N.D.C.C. § 16.1-05-02(3). The oath of office Splonskowski would take as an election board
official is different than the one envisioned by the Court in Allen. Splonskowski’s oath does not
require him to uphold the United States Constitution. Id. It simply requires him to perform his
duties as a North Dakota election official to the best of his ability. Id. Based upon this oath, he is
not subject to the same conundrum the plaintiffs in Allen faced. Splonskowski is also not conflicted
by the controversy he posits in this lawsuit.
[¶25] 	In addition, Splonskowski has failed to show his injuries have a constitutional interest as
required under Susan B. Anthony List. In Allen, the plaintiffs were required to either violate their
oath or violate the constitution. Splonskowski does not allege following North Dakota law will
violate his constitutional rights. Rather, Splonskowski specifically claims North Dakota’s election
laws should be found to violate 28 U.S.C. § 2201, which is not a constitutional provision.
Accordingly, Allen is inapplicable in this case. See Rodearmel v. Clinton, 666 F.Supp.2d 123, 130
(D.D.C. 2009) (finding Allen is applicable when a pleading fails to allege the conduct violates a
specific constitutional provision).
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[¶26] 	Accordingly, Allen is inapplicable to this case and Splonskowski has failed to establish
“oath-of-office” standing.
CONCLUSION
[¶27] 	The Court has considered the remaining arguments relating to standing and finds they are
unnecessary to determine Splonskowski lacks standing. Accordingly, for the reasons set forth
above, White’s Motion to Dismiss for Lack of Jurisdiction is GRANTED. The Complaint is
DISMISSED. Based upon this, White’s Motion to Dismiss for Failure to State a Claim and the
Motion to Intervene are MOOT.
[¶28] 	IT IS SO ORDERED.
DATED February 2, 2024.
Daniel M. Traynor, District Judge
United States District Court
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