Topeka ? A Shawnee County judge handed a victory Friday to Kansas Secretary of State Kris Kobach’s efforts to require that voters show proof of U.S. citizenship in order to vote in state and local elections, at least through the upcoming primary election, which is now a little more than three weeks away.

But District Judge Franklin Theis did not rule on the larger question of whether the dual ballot procedure is constitutional. That is still the subject of a lawsuit by the American Civil Liberties Union.

After a hearing Friday, Theis denied the ACLU’s motion for a temporary injunction to block state election officials from using the dual ballot system, pending the outcome of that lawsuit.

Kansas Secretary of State Kris Kobach, right, confers with his office's general counsel Tom Knutzen during a hearing in Shawnee County District Court concerning the state's new proof-of-citizenship requirement for voting. Judge Franklin Theis ruled that election officials may restrict some voters to voting only in federal elections if they registered using a federal form and have not provided the required citizenship proof.

“We still have two ongoing challenges in this case on constitutional grounds to the dual system of elections,” said Julie Ebenstein, an ACLU attorney who argued the case.

The decision affects an estimated 88 voters who registered to vote using a federal form and who have not yet complied with a new state law requiring new voters to show proof of citizenship.

But there are roughly 19,000 other would-be voters in Kansas — including about 600 in Douglas County — whose registrations are “in suspense” because they registered using the state form and still have not shown proof of citizenship. Those voters will not be allowed to cast ballots at all in the Aug. 5 primary, unless they provide the required documentation by Monday, Aug. 4.

The ACLU sued on behalf of two Kansas voters who had registered using the federal form, but whose registrations were placed “in suspense” for not providing proof of citizenship. Also named as a plaintiff is Equality Kansas, a gay rights organization that also conducts voter registration drives and advocates for equal rights for all citizens.

The ACLU argued that the dual voting system Kobach has proposed allowing some voters to only cast ballots in federal races violated Kansas law because it was being implemented without going through a formal procedure for enacting rules and regulations, which would require public notice and an opportunity for public comment.

Kobach, however, argued that he is not enacting new regulations, but only issuing nonbinding “instructions” to county election officials. And he said county officials are free to ignore those instructions if they wish, as long as they do not violate state law.

At one point in the hearing, Theis said he found that prospect “scary.” He also questioned whether the state could, under the U.S. Constitution, require a person to show proof of citizenship in order to vote since it’s a person’s citizenship — not the ability to show a document proving it — which qualifies a person to vote.

But Kobach said the Constitution also gives states the authority to decide how to enforce election laws.

Announcing his decision from the bench, Theis said granting an injunction would be a case where “the cure is worse than the disease,” because if people are allowed to cast ballots that are later deemed to be invalid, there would be no way of retrieving them and correcting the election outcomes.

Theis said he did not see a strong likelihood the plaintiffs would prevail in the case — one of the legal conditions for granting a temporary injunction — in part because none of the named plaintiffs had “true standing” to sue over the issue.

The two individual plaintiffs, he noted, have both become fully registered since the case was filed, meaning they will not be injured by the dual election system. And Kansas Equality, he said, had not shown how the organization or any of its individual members would be impacted.

The prospect of a dual balloting system first emerged last year when the U.S. Supreme Court ruled that states are required to recognize the federal registration form, but that they also may ask the federal Election Assistance Commission to provide amended forms that conform with state statutes.

Since then, both Kansas and Arizona have asked for such forms, but the commission has denied their requests. Arizona then joined Kobach’s office in filing a federal lawsuit seeking to force the EAC to provide those forms, and a federal judge in Wichita ruled in their favor. But the federal government appealed that decision, and a decision is still pending from the 10th U.S. Circuit Court of Appeals.

Theis also agreed that the dual voting system did not constitute a new regulation, but he strongly urged Kobach’s office to contact each of the voters affected to notify them that they may only be eligible to vote in federal elections. Kobach promised he would do that.

Kobach said Friday he was pleased with Theis’ ruling.

“I think the judge correctly interpreted how state law and the recent (U.S.) Supreme Court decision interact,” he said.