Kansas judge restores mail ballot grace period, finding new law likely unconstitutional

A Douglas County District Court judge issued a court order Thursday that would continue to allow mail-in ballots postmarked by election day to be counted if they arrive up to three days late.

Kansas for years had a grace period that allowed the collection of mail-in ballots for three days after election day. But legislators last year passed Kansas Senate Bill 4, which removed the grace period.

Kansas Appleseed, Loud Light and the Disability Rights Center of Kansas sued over the repeal of the grace period and Douglas County District Court Judge Carl Folsom granted an injunction that halts the new law and restores the grace period. The lawsuit names Secretary of State Scott Schwab and Douglas County Clerk Jamie Shew as defendants.

Folsom’s order concludes that plaintiffs are likely to succeed in their constitutional challenge of the law because it could arbitrarily disenfranchise voters due to mail delays beyond their control, particularly affecting rural voters, people with disabilities, college students living away from home, and others who rely on voting by mail.

“If SB 4 were in place for the past three major general elections, tens of thousands of lawful voters would have had their ballots disregarded and not counted,” Folsom writes in his order. “But the grace period did what it was designed to do, saving thousands of ballots from rejection that were postmarked before election day, but arrived sometime in the three days thereafter. Without the grace period, all of these voters would have been disenfranchised.”

The injunction is not a final ruling on the lawsuit’s claims, but will allow the grace period to remain in effect until the lawsuit is resolved or a higher court reverses the decision.

“When lawmakers should be empowering the next generation of civic leaders, they chose to undermine their constitutional freedom to vote by requiring legitimate ballots to be thrown out,” said Davis Hammet, president of Loud Light. “We are grateful that the court has blocked this legislation from doing any further damage before the August 4th election.”

Kansas Attorney General Kris Kobach quickly announced he would file an emergency appeal to the Kansas Supreme Court.

“This judge has issued an unprecedented, poorly-reasoned decision that completely upsets the election process after absentee voting has already begun,” Kobach said. “His decision will cause massive confusion for voters.”

Postal service delays

When Kansas lawmakers approved the grace period in 2017 they did so in near unanimous agreement, citing increasing mail delays that would require a grace period. Folsom’s order said concerns with postal service delays had only grown since then.

A 2024 letter from Schwab, the secretary of state, to the postmaster general highlighted these concerns.

“It is unacceptable that voters, who follow the rules for requesting, voting, and returning their mail ballot, are disenfranchised by the USPS,” Schwab wrote.

The original lawsuit said significant concerns with the postal service were a basis for the challenge against the removal of the grace period. The lawsuit cited postal service audits that found significant delays at area post offices and found the Kansas-Missouri district performed third worst in the country in 2024.

In a social media post, Schwab, who is running for the Republican nomination for governor, said ballots had already been sent out with instructions that there was no grace period. He also cited Folsom’s role as a recent finalist for a Kansas Supreme Court vacancy.

“I am sorry Judge Folsom once again did not get picked for the Kansas Supreme Court, but to take his bitterness out on voters is immature,” Schwab wrote on X. “This hurts voters.”

Republicans respond

Senate President Ty Masterson, who is also running for governor, said the legislature’s new law was clear and he was glad to see the attorney general appeal.

“A radical Lawrence judge just crossed out the rules and wrote his own,” Masterson wrote on X. “It’s outrageous.