TOPEKA, Kansas — A judge cleared the way Friday for Kansas to use a dual voting system to help enforce its proof-of-citizenship rule for new voters, suggesting that doing otherwise could taint the state's August primary election.
Shawnee County District Judge Franklin Theis' ruling was a victory for Secretary of State Kris Kobach, a conservative Republican who champions the citizenship rule as an anti-election fraud measure. Critics contend it will suppress the vote.
Theis rejected the American Civil Liberties Union's request to block a policy Kobach outlined last month in instructing county officials on handling ballots from voters who registered using a national form without providing a birth certificate, passport or some other documentation of their U.S. citizenship. Kobach advised counties to set aside the ballots and count only their votes in congressional races.
The ACLU sought to force election officials to count all votes from such ballots. The group initially sued Kobach last year on behalf of two voters and the gay-rights group Equality Kansas over the possibility of a dual system, arguing that Kobach has no legal authority to do it. The group filed a request last month for a temporary injunction.
The national form has voters sign a statement that they are U.S. citizens, without requiring papers. Kansas and Arizona sued the federal government to force it to add specific instructions for their states on their proof-of-citizenship requirements. That case is before a federal appeals court, leaving the treatment of voters registering with the national form in flux.
Most Kansas voters register with the state's form, which requires them to provide citizenship papers.
Theis said he could see problems in the Aug. 5 primary if he granted the ACLU's request. If the federal courts sided with Kansas and Arizona, he said, there'd be no way to go back and remove the small number of potentially illegal votes from the totals.
"There are some cases where the cure is worse than the disease, and I think what you're asking me to do would create a mess that couldn't be fixed," Theis said in court.
The registrations of more than 19,500 prospective Kansas voters are on hold because they haven't yet documented their citizenship. Kobach said in court Friday that probably fewer than 200 of them used the federal form to register.
The judge directed Kobach to instruct election officials to notify the small group of voters that if they didn't provide proof of citizenship, only the votes in congressional races would be counted.
But otherwise, the judge said, "What he's done is not unreasonable and not unfair."
Kobach said he was pleased with Theis' ruling because he appeared to agree with the secretary of state that the small group of voters "should remain in a separate classification."
"We may soon know more about the exact effect of federal law on these voters who use the federal form," Kobach said.
However, Theis still could consider the ACLU's claim that a dual voting system violates some voters' right to equal legal protection.
"This is a battle," Bob Eye, a Topeka attorney for the ACLU, said of Friday's decision. "It's not the war."
Follow John Hanna on Twitter at https://twitter.com/apjdhanna .