(Updated to include comment from plaintiffs, secretary of state candidates, more details from opinion and statement from Senate President and lawyer for the plaintiffs)
A Douglas County judge on Thursday morning issued a temporary injunction that effectively keeps in place for now a three-day grace period for mail ballots to arrive at election offices after Election Day in Kansas.
Republican Attorney General Kris Kobach said he would immediately appeal the decision to the Kansas Supreme Court.
District Judge Carl Folsom III issued a temporary order that freezes a 2025 law – known as SB 4 – that eliminated the three-day grace period for mail ballots to arrive after the election. The law will remain on hold as the litigation continues to play out.
Election officials will be required to follow the 2017 state law, which allowed for a three-day grace period for mailed advance ballots that were postmarked on or before Election Day, if they’re received by election officials within three days.
“Plaintiffs have shown a substantial likelihood that SB 4 imposes an extra-constitutional burden on the right to suffrage,” Folsom wrote.
“This burden requires any mail-in ballot to survive a difficult-to-meet and unforgiving deadline, with no ability to correct the deficiency, and no ability to swear or affirm the circumstances of the mail-in ballot.
“If it’s late, the vote is excluded, even if the voter is qualified and they mailed it as soon as they received it in the mail. This is harsh and arbitrary.”
He added, that if the grace period had not been in place for the last three general elections, “tens of thousands of lawful voters would have had their ballots disregarded and not counted.
“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.”
During the 2020 general election — in which high numbers of voters cast their ballots by mail due to the pandemic — more than 32,000 advance ballots arrived after Election Day, but within the then-existing three-day grace period.
The same was true for roughly 1,000 ballots in the 2022 general election and for more than 2,100 ballots in the 2024 general election.
The decision comes just before the Aug. 4 primary election when Kansas voters will decide their Republican and Democratic nominees for governor as well as a constitutional amendment that calls for electing Supreme Court Justices
“This election has started and ballots have gone out with the instructions of there not being a three-day grace period,” Secretary of State Scott Schwab said in a statement.
“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. This hurts voters,” Schwab said.
Kobach called Folsom’s decision “unprecedented” and “poorly-reasoned.”
He said it upsets an election process that has already begun.
“His decision will cause massive confusion for voters,” Kobach said.
“The judge delayed nearly five months in issuing his opinion. He should have issued it in April at the latest.”
The three civic groups that brought the lawsuit – Kansas Appleseed Center for Law and Justice, Loud Light and the Disability Rights Center of Kansas – issued a joint response to the ruling.
“Today’s ruling affirms a crucial principle: Kansas voters who follow every rule must never lose their ability to participate in elections due to postal delays beyond their control,” the groups said.
“We are grateful that the court recognized the overwhelming, undisputed evidence that Senate Bill 4 would arbitrarily disenfranchise thousands of our neighbors, and acted to protect Kansans’ fundamental right to vote while this litigation continues. We will continue fighting to block Senate Bill 4 permanently.”
Republican state Rep. Pat Proctor, who is running for secretary of state and is chair of the House elections committee, said the judge’s opinion should be a basis for electing justices to the Kansas Supreme Court.
“This decision represents the worst kind of legislating from the bench – completely subverting the will of the people as expressed overwhelmingly by their elected representatives in the Legislature,” Proctor said.
“And this guy came a hair’s breath from being yet another left-wing activist Supreme Court Justice. I hope Kansans have this decision front of mind as they go to the polls to decide the fate of the Right to Vote amendment,” he said.
Former Democratic state Rep. Jennifer Day, who is running for secretary of state, praised the ruling.
“Today’s ruling is an important victory for Kansas voters,” Day said.
“Every eligible vote, cast according to the law, deserves to be counted,” she said.
“The court recognized what election officials and voters have known for years: the three day grace period exists to protect voters from postal delays that are completely outside their control,” Day said in a statement.
“As the judge noted, the grace period ‘did what it was designed to do,’ preventing thousands of legally cast ballots from being rejected simply because they arrived after Election Day through no fault of the voter,” she said.
“This ruling preserves a commonsense safeguard that has helped ensure voters who follow the law are not disenfranchised while this case is decided.”
The lawyer for the plaintiffs said the decision was clear.
“The evidence was overwhelming — and as the Court noted, undisputed — that, unless enjoined, the new law would disfranchise thousands of Kansans arbitrarily,” said Elisabeth Frost, litigation chair for the Elias Law Group.
“The Legislature knew this and failed to act to protect the right to vote,” Frost said.
Nevertheless, Senate President Ty Masterson said the ruling was outrageous.
“Ballots are already being cast, and a radical Lawrence judge just crossed out the rules and wrote his own,” Masterson said in a statement.
“One judge in the most liberal city in Kansas does not overrule the people of Kansas. I am glad to see the Attorney General’s emergency appeal, and I’m confident we’ll win,” he said.
The secretary of state’s office has already spent $21,000 on radio and digital ads promoting the fact that the three-day grace period would not be in effect this year.
The office is working with the Kansas Broadcasters Association to take the ads down.
The plaintiffs who brought the lawsuit alleged that the new Kansas law repealing the grace-period law violated the Kansas Constitution’s guarantees of equal protection, due process, and the right to vote.
Folsom concluded that the plaintiffs have made a “successful showing” that they would meet the test for a temporary injunction
“Plaintiffs are likely to prove that SB 4 violates the Kansas Constitution’s guarantee of equal protection because whether a ballot will count depends on arbitrary factors such as mail delays and where a voter lives,” the opinion states.
The plaintiffs argued in their lawsuit that repealing the grace period was unconstitutional and disenfranchised Kansas voters.
They said repealing the grace period would make it “virtually impossible for many voters” to cast a ballot by mail in an election.
They want the law repealing the grace period blocked, but the decision of only blocks the law temporarily until the lawsuit is ultimately decided.
They plaintiffs wanted election officials ordered to count all ballots that are postmarked by Election Day and received within seven days after the election — “the time Kansas’s own election officials expect it will take a ballot to reach its office.”
The lawsuit said the legislation eliminating the grace period would make successfully voting by mail “virtually impossible for many voters.”
The lawsuit highlighted data from the U.S. Postal Service showing that in the first quarter of 2023, 90% of first-class, two-day service standard mail in the Kansas-Missouri district was delivered on time.
By the first quarter of 2025, that figure had dropped to 83%.
In the first quarter of 2023, the Postal Service delivered 78% of first-class, three-to-five-day service standard mail in the district on time. By the first quarter of 2025, that figure had declined to just 61%, according to the lawsuit.
“Instead of creating legislative solutions that would help fix the problem, however, the Legislature voted to make the problem much worse,” the lawsuit said.
Folsom wrote that the evidence shows that similarly situated voters – including those who mail their ballot back to election officials on the same day – will be subject to arbitrary and disparate treatment.
He said some votes will have their ballots rejected when they arrive after 7p.m. on Election Day “due to unanticipated or extended mail delays, or simply where they happen to live.”
He said the evidence demonstrates that the plaintiffs are likely to show that repealing the grace period will lead to unreliable and disparate counting of lawful votes and that, “at a minimum, thousands of voters will likely have their ballots rejected as a result — despite having timely voted and mailed those ballots…”
He wrote that it was undisputed that hundreds of thousands of Kansas voters have relied on the postal service deliver their ballots.
“It is also undisputed that, over the past decade, USPS delivery has become slower, less reliable, and more erratic.”
He noted that during the second quarter of 2025, the postal service delivered only 51% of first-class, three-to-five-day service standard mail in the Kansas-Missouri district on time.
He pointed out that a 2024 audit ranked the Kansas-Missouri district among the third or fourth worst-performing mail districts in the country out of 50 districts.
“In 2017, a far less dire situation led the Legislature to conclude that a three-day grace period was necessary to ensure that thousands of voters would not have their ballots arbitrarily rejected without recourse,” he wrote.
“After that grace period was enacted, it saved tens of thousands of voters’ ballots from being rejected—and those
voters from being disenfranchised — due to mail delays,” Folsom wrote.
“Even so, as mail delivery continued to worsen in the ensuing years, the grace period was not always sufficient to save voters’ timely-mailed ballots from rejection,” he wrote.
He pointed out that 566 ballots arrived after the grace period in the 2018 general election, and 400 in the 2020 general election, and were not counted as a result.
By the 2024 general election, 603 ballots arrived after the three-day grace period and were not counted as a result.
“Rather than addressing this worsening problem to save voters’ ballots from being rejected due to arbitrary circumstances often out of their control, the Legislature chose to repeal the grace period with 2025 SB 4,” he said.
“In the 2025 legislative proceedings, the Legislature was repeatedly warned — including by the (secretary of state’s) office—that repealing the grace period would have negative consequences for voters…,” he wrote.
Folsom’s decision comes a little more than two weeks after the U.S. Supreme Court agreed to allow states to count mail ballots after Election Day.
After the Supreme Court rendered its decision, lawyers for the plaintiffs filed a notice of additional authority alerting the judge of the ruling and explained what they thought hat meant for the Kansas litigation
In short, they believed that the Supreme Court ruling bolstered their case for restoring the three-day grace period in Kansas.
The Supreme Court case forecloses Secretary of State Scott Schwab’s argument to dismiss the Kansas lawsuit because federal election day statutes pre-empt any post-election day ballot receipt deadline for a federal election, the plaintiffs argued.
The plaintiffs said the secretary of state relied on a federal appeals court decision that the U.S. Supreme Court overturned.
The 5th U.S. Circuit Court of Appeals had ruled against a Mississippi law that allowed absentee ballots postmarked on or before the date of the election to be accepted no more than five business days after the election.
The appeals court cited two constitutional provisions, including one allowing legislatures to set the time, manner and place of elections, but allowing Congress to alter those rules for federal elections.
But the Supreme Court overturned the appeals court ruling.
The secretary of state agreed that the U.S. Supreme Court ruling in Watson vs. Republican National Committee found that the federal Election Day statutes don’t prevent states from legislatively allowing grace periods for accepting mail ballots.
“But Watson provides no support whatsoever for plaintiffs’ baseless theory that the Kansas Constitution somehow mandates a grace period,” the secretary of state’s lawyers said in their response to the notice of additional authority.
The secretary’s lawyers said the Supreme Court’s decision explicitly recognizes that challenges to ballot-receipt deadlines present
policy arguments that should be addressed by state legislatures not the courts.
“The Kansas Legislature concluded – in 2025 – that grace periods should not be part of our state’s mail voting process,” the state’s lawyer wrote in their response.
“The suggestion that the Kansas Constitution requires the use of grace periods is an affront to the separation of powers that is at the heart of the state’s constitutional design,” the state’s lawyers said.
