? A Shawnee County judge on Friday dealt a severe setback to the state’s proof-of-citizenship voting law, saying Secretary of State Kris Kobach has no legal authority to set up a dual election system in which people who register using a federal form may only vote in federal elections.

Judge Frank Theis ruled in favor of the American Civil Liberties Union, which challenged that policy.

Kobach instituted that policy during the 2014 elections, the first statewide election conducted in Kansas since the new citizenship law went into effect.

“Clearly no such authority exists at all in the Kansas Secretary of State to encumber the voting process as he has done here,” Theis said.

His decision threatens to open a huge loophole in the proof-of-citizenship law because it suggests the state must fully recognize voter registrations from people who use the federal form, which does not ask for citizenship proof. That would mean any person wanting to register could circumvent the state citizenship law simply by using the federal form.

Kobach said he plans to appeal or ask Theis to reconsider his ruling.

“If Judge Theis’ decision were to stand on appeal, which I believe is unlikely, then yes, it would create a loophole in Kansas’ proof of citizenship requirement,” Kobach told the Journal-World in a phone interview. “But his opinion is inconsistent with Kansas law. Judge Theis does not squarely address the biggest problem with his opinion, which is that Kansas law says … no person shall be registered until that person provides proof of citizenship.”

Douglas County election officials said there are 29 people listed on the county’s election rolls who registered using the federal form, but none of them cast ballots in the 2014 elections.

Theis’ ruling did not include a remedy order halting the dual election process. But Doug Bonney, the ACLU attorney who filed the case, said that is only a procedural matter, and he plans next to ask for such an order, either as part of the current case or in a new case.

“Federal form registrants are being shunted into this class where the bifurcated election system applies,” Bonney said. “Their votes are only counted in federal elections. We don’t even know how, or if, local election authorities and the Secretary of State’s office is cataloging these people. They are not entered on the voter rolls as registered voters. Some of them have appeared on the suspense list, including our clients, until the Secretary of State went ahead and registered our clients.”

The case involves two plaintiffs, Aaron Belenky and Scott Jones, both of whom attempted to register using the federal form but had their registrations placed “in suspense” for failing to show proof of citizenship.

After the case was filed, Kobach’s office, on its own initiative, located the documents needed to satisfy the proof-of-citizenship requirement and approved both of their registrations. He then filed a motion to dismiss the suit, saying the plaintiffs no longer had standing to sue because they were fully registered.

Judge Theis, however, rejected that argument, calling it a “gratuitous and unsolicited act” that may have solved the immediate question for them, but did not erase the fact that they had previously been placed in suspense solely on the basis of how they chose to register, or the fact that they had to sue in court in order to become registered.

At one point last year, more than 30,000 would-be voters in Kansas had their registrations being held in suspense because they had not shown proof of citizenship. Then, in September, Kobach issued new regulations directing county election officials to cancel all incomplete or “suspense” registrations that have been held longer than 90 days.

In a 2013 case involving Arizona’s proof-of-citizenship law, the U.S. Supreme Court said states must accept and use those federal forms. But the court also said states such as Arizona and Kansas that have additional requirements for registration could request that the U.S. Election Assistance Commission provide them amended forms.

Both Kansas and Arizona then asked the EAC to provide amended forms, but the commission declined to do so. Both states then sued in federal court, but the 10th U.S. Circuit Court of Appeals rejected their arguments, and the Supreme Court declined to review that case.

Ben Lampe, Deputy of Elections in the Douglas County Clerk’s office, said that office did not immediately begin canceling registrations. Instead, it started a 90-day clock beginning Oct. 1, the effective date of the new regulation. In that time, he said, the county was able to complete registrations of 106 voters who otherwise would have been canceled.

Lampe said the office is just now beginning to cancel other incomplete registrations that have been in the office more than 90 days. By Tuesday, he said, roughly 940 incomplete registrations will be canceled, leaving another 280 still in suspense.