When Kansas voters go to the polls Tuesday, not everyone’s ballot will be treated the same.
For a select group of voters — 176 in 16 counties — federal elections will be their only choice. They will be limited to the U.S. Senate primary and U.S. House races.
The rest of the state’s 1.7 million voters eligible to cast ballots can still participate in the full slate of elections.
State officials will employ an election system that puts voters in one of two classes, depending on the form they used to register.
The unusual arrangement, tried in two other states, stems from a legal dispute over a Kansas law requiring voters to prove citizenship when registering.
Would-be voters must prove their citizenship with a birth certificate, passport or a handful of other documents. Passed in 2011, the law began requiring proof of citizenship for prospective voters in 2013.
But the state can’t apply the law to voters who used a federal registration form, which only requires them to sign a declaration, under penalty of perjury, that they are citizens.
As of Friday, 176 people registered using the federal form without showing citizenship documents, including 40 in Johnson County and five in Wyandotte County. They have until Monday to show proof of citizenship if they want to vote in all races.
Kansas asked a judge to apply the citizenship requirement to the federal form. It won a round in federal district court, but the lower-court ruling was temporarily halted on appeal.
Kris Kobach, secretary of state, has been the leading advocate of the citizenship requirement, which has been criticized as a hurdle to voting.
He has battled to apply the requirement to the federal form, saying it creates a loophole in the citizenship law, which is intended to prevent voter fraud.
Kobach said it’s “silly” to argue that the new system poses a hardship. He said nearly all voters will cast ballots as they usually do.
Voters who registered using the federal form will be given a provisional ballot at the polls, which will be counted when the official results are tallied.
“It doesn’t make anything confusing,” Kobach said. “From the voters’ perspective, everything looks the same.”
The American Civil Liberties Union went to court to block the dual voting system and lost. The ACLU contended the system violated the state constitution’s equal protection clause and that Kobach exceeded his authority by establishing a voting system segregating voters into classes.
Last month, a Shawnee County judge denied the ACLU’s request. The judge said it would be impossible to remove illegal votes if the federal courts ultimately ruled in favor of Kansas.
“Once you are registered, you should be able to vote in all races,” said Doug Bonney, legal director for the ACLU of Kansas. “I don’t think there is a good public policy reason to deny that.”
The bigger problem, Bonney said, are the 18,191 people whose voter registrations with the state form were held up because they didn’t provide the documents needed to prove citizenship.
About 4,100 of those are in Johnson County, and another 1,000 are in Wyandotte County. Those voters also have until Monday to show citizenship if they want to vote in the primary.
“What we’re going to see probably is a lot of people getting to the polls and not being on the books, and they’ll be surprised,” Bonney said.
Local election officials say they have made multiple efforts to contact those prospective voters to let them know they need to present documents showing that they are citizens.
Kobach has always argued that it’s not that burdensome to show citizenship.
He said his office has matched the list of suspended registrations with Kansas birth records to get people registered. He said prospective voters can text pictures of the required documents to their election office.
“We’ve bent over backward to make it easy for people to prove their citizenship,” Kobach said. “It is a very easy requirement to meet.”