Legal debate on 3-day grace period for mail ballots runs up against Tuesday primary
By: Tim Carpenter
Kansas Reflector
TOPEKA — The Kansas Supreme Court chose not to authorize an expedited review of lower court decisions temporarily blocking enforcement of a new state law repealing the three-day grace period for mail-in advance ballots.
On Thursday, a majority of the state’s highest court declined Secretary of State Scott Schwab’s request for extraordinary intervention by justices despite the approaching statewide primary Tuesday. A dissenting opinion signed by two members of the Supreme Court, one appointed by a Republican governor and one appointed by a Democratic governor, argued for immediate intervention into the case.
Under the statute adopted by the 2025 Legislature, only advance ballots reaching Kansas election offices by 7 p.m. on Election Day could be counted.
A lawsuit was filed to challenge constitutionality of the change. Douglas County District Judge Carl Folsom issued an injunction in mid-July that resulted, at least temporarily, in preservation of the 2017 law allowing the counting of mail ballots postmarked by Election Day but arriving in county offices up to three days after polls closed. Folsom’s order was based on his belief plaintiffs were “substantially likely” to succeed at trial in their bid to strike down the law closing the three-day window.
The Kansas Court of Appeals declined July 27 to suspend the district court’s order. Schwab requested the matter be transferred to the Kansas Supreme Court.
Schwab, a defendant in the lawsuit as the state’s top election official, urged the Supreme Court to use its discretionary power to “correct the Court of Appeals” and overrule the district court judge’s injunction blocking implementation of the state law ending the three-day grace period.
A majority of the Supreme Court declined both requests from Schwab, declaring the secretary of state failed to demonstrate “the expeditious administration of justice requires the transfer.”
“To the contrary,” the majority of justices said, “the Court of Appeals appears ready, willing and able to administer justice at this stage of the case.”
Chief Justice Eric Rosen, author of the majority opinion, said the justices agreed with their dissenting colleagues that the appeal generated significant public interest amid the election season. The majority also concurred with the dissenters that elimination of the three-day grace period for counting mail-in ballots raised an important legal question, Rosen wrote.
“But the existence of some grounds for transfer does not mandate transfer,” he chief justice said.
Justice Caleb Stegall, appointed by GOP Gov. Sam Brownback, and Justice K.J. Wall, appointed by Democratic Gov. Laura Kelly, disagreed with the majority’s decision to prevent the Supreme Court from weighing into a question of importance to the August primary and November general elections.
“In these elections,” they wrote, “Kansas voters will set the direction of our state’s leadership for years to come. There are contested races in both the primary and general elections touching on all three branches of government. Not to mention federal races that may sway control of Congress during the last two years of the current administration.”
Wall and Stegall contended the Supreme Court shouldn’t allow the typical step-by-step process of considering appeals to play out in the election law case.
“In ordinary matters, we agree with this. But this case is not ordinary,” the justices said. “By failing to take up our responsibility as the court of last resort in Kansas on these issues, we invite only suspicions about the integrity of our election outcomes at a time when the legitimacy of our voting procedures is under unprecedented assault. There are thousands of ballots at stake in this lawsuit. They are now going to be counted. But their ultimate legality will not be determined by this court until long after the results are announced.”
Stegall and Wall said the majority’s denial of the transfer to the Supreme Court was “an untenable and unacceptable outcome.”
In terms of the expedited review sought by Schwab, the duo dissented from the majority of their peers due to a belief the Court of Appeals’ panel of judges “likely reached an incorrect result.” They said timing of the case weighed in favor of state courts exercising judicial restraint when it came to altering election law and there were compelling reasons to “doubt the likelihood that plaintiffs will succeed on the merits.”
The lawsuit was filed by Kansas Appleseed, Loud Light, the Disability Rights Center of Kansas and three individuals who argued that ending the three-day grace period amounted to a “deliberate and unconstitutional assault on Kansans’ fundamental right to vote.” Their suit raised equal protection, due process and right to vote issues relative to the Kansas Constitution.
In the district court, the judge decided the temporary injunction was necessary to prevent “plaintiffs from suffering irreparable injuring during the pendency of this lawsuit.”
The statute eliminating the three-day grace period as of Jan. 1, 2026, was championed by state legislators who sought the reform as a buffer against potential election fraud. Kelly vetoed Senate Bill 4 because she thought it would disenfranchise voters in Kansas. The House and Senate summoned the two-thirds majorities necessary to override the governor’s veto.
The grace period was enacted in 2017 on a 40-0 vote in the Senate and a 123-1 vote in the House. Brownback, the Republican, signed that legislation.