HAMILTON, Circuit Judge:
As a consequence of registering to vote in the Commonwealth of Virginia (Virginia), a registered voter's Social Security number (SSN) is subject to public inspection in the Office of the General Registrar and provided upon request to, among other entities, political parties as part of voter registration lists. Applying strict scrutiny, the district court held that these provisions of Virginia's voter registration scheme do not violate appellant's fundamental right to vote. Greidinger v. Davis, 782 F.Supp. 1106 (E.D.Va.1992). We now reverse.
The Constitution of Virginia requires all citizens otherwise qualified to vote and possessing a SSN (registering after July 1, 1971) to provide their SSN on their Virginia Voter Registration Application (Application) in order to become registered to vote. Va. Const. art. II, § 2. If an individual otherwise qualified to vote does not possess a SSN, a "dummy" number will be provided. The scheme also provides that any registered voter may inspect the voter registration books in the Office of the General Registrar. In practice, these books contain the registration application of a registered voter. Va.Code Ann. § 24.1-56 (§ 24.1-56).
The scheme further provides that Statewide Voter Registration lists containing the SSNs of voters can be obtained by: (a) candidates for election to further their candidacy, (b) political party committees for political purposes only, (c) incumbent office holders to report to their constituents, and (d) nonprofit organizations which promote voter participation and registration for that purpose only. Va.Code Ann. § 24.1-23(8) (§ 24.1-23(8)).
On July 24, 1991, appellant, Marc Alan Greidinger, filled out an Application, but refused to disclose his SSN. Because of this omission, Greidinger received a Denial of Application for Virginia Voter Registration from the General Registrar of Stafford County. Consequently, the Virginia State
On August 22, 1992, Greidinger instituted this action pro se against Robert H. Davis, Greidinger's local registrar,
The parties filed cross-motions for summary judgment based upon stipulated facts. In pertinent part, the stipulation provided:
Joint Appendix (J.A.) at 36-40.
On January 17, 1992, the district court held that the Board did not comply with § 7(b) of the Privacy Act. Greidinger v. Davis, 782 F.Supp. at 1108-09. As a result, the district court ordered the Board to submit a schedule for prospective compliance with § 7(b) of the Privacy Act and to submit a summary of the measures to be taken to effectuate compliance with the notice requirements of § 7(b). The district court went on to reject Greidinger's constitutional challenge to Virginia's voter registration scheme. Id. at 1109-10. Applying strict scrutiny, the district court reasoned that Virginia's voter registration scheme was necessary to promote the compelling state interest of conducting fair and honest elections.
Prior to the district court's decision, the Board began to draft a proposed Privacy Act notice to be used with new registration forms. The day after the district court's decision, the Board submitted a proposed notice to comply with the dictates of the Privacy Act. This notice was to be posted at all voter registration sites. The new notice informed registrants that the SSN was required under Va. Const. art. II, § 2. The notice also stated that the voter registration card containing the voter's SSN would become part of the permanent voting records and would be open to inspection by any Virginia voter. Finally, the notice stated that computerized listings containing the information on the voter registration would be furnished upon request to elected officeholders, candidates for office, political parties, courts, and nonprofit organizations promoting voter participation and registration, for use on a restricted basis. See infra note 6.
On January 27, 1992, Greidinger filed a motion to alter or amend the district court's judgment. On February 12, 1992, the district court rejected Greidinger's request, finding no errors or mistakes which required correction. On March 17, 1992, Greidinger filed a motion for entry of final
Greidinger argues that the "public disclosure" accompanying Virginia's requirement that he provide his SSN on his voter registration application unconstitutionally burdens his right to vote as protected by the First and Fourteenth Amendments. In making this argument, Greidinger attacks two components of Virginia's voter registration scheme. He objects to Virginia's permitting registered voters to obtain another registered voter's SSN via § 24.1-56, which provides that all registration books, containing all of the registration forms, "shall be opened to the inspection of any qualified voter."
Notably, Greidinger does not challenge Virginia's receipt and internal use of his SSN. He challenges only the dissemination of the SSN to the public pursuant to § 24.1-23(8) (candidates, political parties and officials, incumbents, and nonprofit organizations which promote voter participation and voter registration) and § 24.1-56 (general public). In addition, Greidinger does not assert any constitutional right to privacy in his SSN. Rather, he argues that the privacy interest in his SSN is sufficiently strong that his right to vote cannot be predicated on the disclosure of his SSN to the public or political entities.
It is axiomatic that "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1976); see also Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886) (right to vote regarded as a fundamental right because it preserves all other rights); Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964) ("[A]ny restrictions on that right [to vote] strike at the heart of representative government.").
Id. at 730, 94 S.Ct. at 1279. However, the state's broad power to regulate the franchise "does not extinguish the State's responsibility to observe the limits established by the First Amendment rights of the State's citizens." Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986).
The difficulty of the inquiry can best be seen through an observation the Supreme Court made almost twenty years ago in Storer. In assessing the validity of state election laws under the Equal Protection Clause, the Court observed:
415 U.S. at 730, 94 S.Ct. at 1279 (citations and internal quotes omitted).
We must begin our inquiry by determining the proper standard to be applied to the statutes at issue. We look for guidance in cases involving voter qualifications and ballot access.
In each of these cases, the state law under attack prohibited an identified class of persons from voting. Obviously, the statutes at issue in this case do not impose such a prohibition, but rather place a burdensome condition on the exercise of the fundamental right to vote. In such cases, the Supreme Court has never clearly determined that strict scrutiny should apply. These murky waters become more lucid to the extent that the Court has distinguished between provisions that result in "an absolute denial of the franchise" and provisions that made "casting a ballot easier for some." Kramer, 395 U.S. at 626 n. 6, 89 S.Ct. at 1889 n. 6. For example, in upholding a state's decision not to provide absentee ballots to pretrial detainees, notwithstanding the fact that absentee ballots were available to others, the Court applied the "rational basis" test. McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969).
The Court also applied the "rational basis" test in upholding a state law which conditioned the right to vote in a party primary on the voter's registering as a party member thirty days prior to the previous general election. This registration date was eight months prior to the presidential primary and eleven months prior to the non-presidential primary. Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973). Initially, the Court noted that the plaintiffs comprised a group of individuals who could have registered in time for the primary, but for one reason or another failed to do so. Id. at 755 and n. 4, 93 S.Ct. at 1248 and n. 4. The Court used this observation to distinguish those cases along the Carrington-Dunn line which had applied strict scrutiny. Id. at 757, 93 S.Ct. at 1249. The Court stated that, in the Carrington-Dunn line of cases, "the State [had] totally denied the electoral franchise to a particular class of residents, and there was no way in which the members of that class could have made themselves eligible to vote." Id. at 757, 93 S.Ct. at 1249. Comparing the statutes in the Carrington-Dunn line of cases to the New York statute before it, the Court stated that the New York statute "did not absolutely disenfranchise the class to which petitioners belong — newly registered voters who were eligible to enroll in a party before the previous general election." Id. The Court then concluded that to the extent the plaintiffs' "plight can be characterized as disenfranchisement at all, it was not caused by [the New York statute], but by their own failure to take timely steps to effect their enrollment." Id. at 758, 93 S.Ct. at 1250. The Court applied the "rational basis" test and upheld the statute.
The Supreme Court's continued reliance on the "absolute denial" distinction made in Rosario is called into question when examining recent ballot access decisions. In ballot access cases, prior to the Anderson decision, the Supreme Court generally applied equal protection strict scrutiny. Williams, 393 U.S. at 30-32, 89 S.Ct. at 10-11; Bullock, 405 U.S. at 142-44, 92 S.Ct. at 855-56; Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Illinois Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); but see, Clements v. Fashing, 457 U.S. 957, 965-66, 102 S.Ct. 2836, 2844-45, 73 L.Ed.2d 508 (1982) (plurality opinion) ("[n]ot all ballot access restrictions require `heightened' equal protection scrutiny").
However, in Anderson, the Court elected not to rest its decision on equal protection grounds, but rather directly on the First and Fourteenth Amendments. 460 U.S. at 786 n. 7, 103 S.Ct. at 1569 n. 7 ("In this case, we base our conclusions directly on
In Anderson, the Court again recognized that determining whether a restriction is valid or invalid "cannot be resolved by any `litmus-paper test.'" 460 U.S. at 789, 103 S.Ct. at 1570 (quoting Storer, 415 U.S. at 730, 94 S.Ct. at 1279). In response, the Court developed an analytical framework that amounted to a weighing of factors. This framework essentially retained the individual components of the strict scrutiny calculus:
Anderson, 460 U.S. at 789, 103 S.Ct. at 1570.
Relying on the First and Fourteenth Amendments, the Court in Anderson held unconstitutional an Ohio statute that required an independent candidate for President, John Anderson, to file both a statement of candidacy and a nominating petition in March in order to appear on the general election ballot in November. In assessing the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments, the Court noted that the early filing deadline could have a substantial impact on independent-minded voters and candidates because the March deadline would thwart the possibility of "a newly emergent candidate [that] could serve as the focal point for a grouping of Ohio voters who decide, after mid-March, that they are dissatisfied with the choices within the two major parties." Id. at 791, 103 S.Ct. at 1571.
Ohio proffered three state interests that justified the restriction: (1) voter education, (2) equal treatment, and (3) political stability. Id. at 796, 103 S.Ct. at 1574. While the Court agreed with Ohio that it had a legitimate state interest in fostering informed and educated expression, the Court found that Ohio's interest did not justify the specific restriction at issue because the restriction had the potential to actually deprive the Ohio electorate of valuable understanding of the issues that an independent candidate could have contributed. Id. at 798, 103 S.Ct. at 1575. In addition, the Court in Anderson was neither persuaded that Ohio's interest in equal treatment was achieved by the March deadline, nor persuaded that the March deadline could be justified on the basis of Ohio's interest in political stability.
More recently, the Supreme Court ameliorated the ambiguity caused by Anderson with respect to the level of scrutiny to be applied when it returned to a straightforward strict scrutiny test. In Norman, the Court stated:
Similar to previous cases which employed equal protection analysis in assessing the propriety of various statutes in voter qualification and ballot access cases, Anderson and Norman recognize the precious nature of the individual and state rights at issue and the delicate balancing required to achieve electoral harmony. Anderson and Norman are also illustrative of the Supreme Court's recent focus on the degree of the burden imposed on the exercise of associational or voting rights as opposed to the "absolute denial" of associational or voting rights which the Court found critical in Rosario. Thus, the critical distinction between the McDonald-Rosario line and the Carrington-Dunn/ Anderson-Norman lines is whether the statute at issue imposes a substantial burden on the associational rights or voting rights at stake. Storer, 415 U.S. at 729, 94 S.Ct. at 1278 ("substantial burdens on the right to vote or associate for political purposes are constitutionally suspect and invalid under the First and Fourteenth Amendments and under the Equal Protection Clause unless essential to serve a compelling state interest."); Bullock, 405 U.S. at 144, 92 S.Ct. at 856 ("Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper, that the laws must be `closely scrutinized.'"). If a substantial burden exists, a common sense reading of the cases in both areas suggests that the restrictions on the right to vote must serve a compelling state interest and be narrowly tailored to serve that state interest. Generally, this is the conventional approach employed in assessing First Amendment deprivations. Storer, 415 U.S. at 759-62, 94 S.Ct. at 1293-95 (Brennan, J., dissenting).
Before we begin examining the burden on Greidinger's right to vote, we note that the Virginia statutes at issue, for all practical purposes, condition Greidinger's right to vote on the public disclosure of his SSN. Admittedly, at first glance, the disclosure of a SSN to the general public is a rather subtle price to pay to exercise the right to vote. Nevertheless, it is nothing short of a condition on the exercise of that right. To be sure, by definition, the fact that the SSN may be potentially disseminated to any registered voter or political party with the attendant possibility of a serious invasion of one's privacy is demonstrably more restrictive than predicating the right to vote on the simple receipt and internal use of the SSN. By allowing the SSN to be disseminated to registered voters or political parties upon request, Virginia's voter registration scheme conditions the right to vote on the consent to the public disclosure of a would-be voter's SSN.
Because Virginia's voter registration scheme conditions Greidinger's right to vote on the public disclosure of his SSN, we must examine whether this condition imposes a substantial burden.
Originated in 1936, a SSN is a nine-digit account number assigned by the Secretary of Health and Human Services for the purpose of administering the Social Security laws. See 42 U.S.C. § 405(c)(2)(B). SSNs were first intended for use exclusively by the federal government as a means of tracking earnings to determine the amount of Social Security taxes to credit to each worker's account. Over time, however, SSNs were permitted to be used for purposes unrelated to the administration of the Social Security system. For example in 1961, Congress authorized the Internal Revenue Service to use SSNs as taxpayer
In response to growing concerns over the accumulation of massive amounts of personal information, Congress passed the Privacy Act of 1974. This Act makes it unlawful for a governmental agency to deny a right, benefit, or privilege merely because the individual refuses to disclose his SSN. In addition, Section 7 of the Privacy Act further provides that any agency requesting an individual to disclose his SSN must "inform that individual whether that disclosure is mandatory or voluntary, by what statutory authority such number is solicited, and what uses will be made of it." At the time of its enactment, Congress recognized the dangers of widespread use of SSNs as universal identifiers. In its report supporting the adoption of this provision, the Senate Committee stated that the widespread use of SSNs as universal identifiers in the public and private sectors is "one of the most serious manifestations of privacy concerns in the Nation." S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin. News 6916, 6943. In subsequent decisions, the Supreme Court took notice of the serious threats to privacy interests by the mass accumulation of information in computer data banks. For example, in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), in rejecting a privacy challenge to a New York statute that: (1) required doctors to disclose to the state information about prescriptions for certain drugs with a high potential for abuse and (2) provided for the storage of that information in a centralized computerized file, the Court observed:
Id. at 605, 97 S.Ct. at 879 (footnote omitted).
Since the passage of the Privacy Act, an individual's concern over his SSN's confidentiality and misuse has become significantly more compelling. For example, armed with one's SSN, an unscrupulous individual could obtain a person's welfare benefits or Social Security benefits, order new checks at a new address on that person's checking account, obtain credit cards, or even obtain the person's paycheck. Elizabeth Neuffer, Victims Urge Crackdown on Identity Theft, BOSTON GLOBE, July 9, 1991, at 13, 20 (In Massachusetts, "[a]uthorities say that, with another person's Social Security number, a thief can obtain that person's welfare benefits, Social Security benefits, credit cards or even the victim's paycheck."); Michael Quint, Bank Robbers' Latest Weapon: Social Security Numbers, N.Y. Times, September 27, 1992, at 7 (SSN can be used to order new checks at a new address).
The degree of the burden on Greidinger's right to vote can also be seen through the case law's uniform recognition that SSNs are exempt from disclosure under Exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(6), because their disclosure would "constitute a clearly unwarranted invasion of privacy." See, e.g., I.B.E.W. Local No. 5 v. HUD, 852 F.2d 87, 89 (3d Cir.1988) (disclosure of SSN constituted unwarranted invasion of privacy under FOIA). Further Congressional recognition of the privacy concerns is evident from § 7 of the Privacy Act which prohibits the denial of any right, benefit, or privilege by a governmental agency because of an individual's refusal to disclose his SSN.
The statutes at issue compel a would-be voter in Virginia to consent to the possibility of a profound invasion of privacy when exercising the fundamental right to vote. As illustrated by the examples of the potential harm that the dissemination of an individual's SSN can inflict, Greidinger's decision not to provide his SSN is eminently reasonable. In other words, Greidinger's fundamental right to vote is substantially burdened to the extent the statutes at issue permit the public disclosure of his SSN.
Having identified that Greidinger's right to vote is substantially burdened by the public disclosure of his SSN, we must next determine whether Virginia has advanced a compelling state interest that justifies the disclosure and dissemination of his SSN. If Virginia advances a compelling state interest, we must determine whether disclosure of the SSN is narrowly tailored to fulfill that state interest.
With respect to § 24.1-56, Virginia stipulated in the district court that it had no state interest in disseminating SSNs to private individuals. On appeal, Virginia argues that the disclosure of SSNs is a safeguard against voter fraud. With respect to § 24.1-23(8), in addition to preventing voter fraud, Virginia argues that the statute furthers Virginia's interest in promoting "participation in the electoral process." Appellee's Brief at 26. Unquestionably, Virginia has a compelling state interest in preventing voter fraud, Storer, 415 U.S. at 732-33, 94 S.Ct. at 1280 (state has a compelling interest in protecting the integrity of the electoral process), and promoting voter participation. However, the inquiry does not end here. We must determine whether the disclosure of the SSN under § 24.1-23(8) and/or § 24.1-56 is narrowly tailored to fulfill that state interest. We conclude that it is not.
Virginia's voter registration form requires a registrant to supply, among other things, his name, address, SSN, age, place of birth, and county of previous registration. Virginia's interest in preventing voter fraud and voter participation could easily be met without the disclosure of the SSN and the attendant possibility of a serious invasion of privacy that would result from that disclosure. Accord, Pilcher v. Rains, 853 F.2d 334, 337 (5th Cir.1988) (requirement that voters signing ballot access petition supply "voter registration number" not necessary to distinguish among voters sharing common names).
In summary, we hold to the extent that § 24.1-23(8) and/or § 24.1-56 permit the public disclosure of Greidinger's SSN as a condition of his right to vote, it creates an intolerable burden on that right as protected by the First and Fourteenth Amendments. Accordingly, the judgment of the district court is reversed. We remand the case to the district court to give the Commonwealth of Virginia the responsibility to cure this constitutional infirmity by either deleting the requirement that a registrant disclose his SSN or eliminating the use of SSNs in voter registration records open to public inspection and contained in voter registration lists provided to candidates for election, political party committees and officials, incumbent office holders, and nonprofit organizations which promote voter participation and registration. We also remand the case for further proceedings on the Privacy Act notice, which will have to be revised in light of our decision, and the issue of attorneys' fees.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.