Greidinger v. Davis
| Decision Date | 22 March 1993 |
| Docket Number | No. 92-1571,92-1571 |
| Citation | 988 F.2d 1344 |
| Parties | , Unempl.Ins.Rep. (CCH) P 17193A Marc Alan GREIDINGER, Plaintiff-Appellant, v. Bobby Ray DAVIS, Chairman; John H. Russ, Jr., Vice-Chairman; Michael G. Brown, Defendants-Appellees, and Ray H. Davis, General Registrar, Defendant. Computer Professionals for Social Responsibility, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Paul Reinherz Wolfson, Public Citizen Litigation Group, Washington, DC, for plaintiff-appellant.
Roger Conant Wiley, Jr., Sr. Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, argued (Mary Sue Terry, Atty. Gen. of Va., K. Marshall Cook, Deputy Atty. Gen., Martha B. Brissette, Asst. Atty. Gen., Office of the Attorney General, on the brief), for defendants-appellees.
Marc Rotenberg, David L. Sobel, Computer Professionals for Social Responsibility, Washington, DC, for amicus curiae.
Before RUSSELL and HAMILTON, Circuit Judges, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.
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)). 1
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 Board of Elections (the Board) prevented Greidinger from voting in the November 5, 1991, general election. The Application completed by Greidinger did not state whether disclosure of his SSN was mandatory or voluntary, by what statutory or other authority the SSN was requested, what uses would be made of the SSN, or that the SSN might be disseminated to registered voters or political parties.
On August 22, 1992, Greidinger instituted this action pro se against Robert H. Davis, Greidinger's local registrar, 2 Bobby W. Davis, John H. Russ, Jr., and Michael G. Brown, who collectively comprise the Board. 3 Greidinger sought preliminary and permanent injunctive relief, declaratory relief, writs of mandamus and prohibition, costs and attorney's fees. Greidinger alleged that to the extent Virginia authorizes the collection and publication of SSNs for voter registration, it unconstitutionally burdens his right to vote. Greidinger also alleged that Virginia's Voter Registration Application violates § 7(b) of the Privacy Act of 1974, Pub.L. No. 93-579, § 7, 88 Stat. 1896, 1909 (1974), reprinted in 5 U.S.C. § 552a note (1982) (Privacy Act of 1974 or Privacy Act), because it did not: (a) specify whether the disclosure of the SSN was mandatory or voluntary, (b) inform him by what statutory or other authority his SSN was solicited, and (c) specify what uses would be made of his SSN.
The parties filed cross-motions for summary judgment based upon stipulated facts. In pertinent part, the stipulation provided:
(1) Marc Alan Greidinger ("Greidinger") is a resident of Stafford County, Virginia, and is fully qualified to register to vote under the laws of the Commonwealth of Virginia.
....
(6) The Virginia Voter Registration Application[ ] completed by Greidinger ... did not specify whether disclosure of the social security account number is mandatory or voluntary, by what statutory or other authority the number was requested, or what uses would be made of the number[ ], or the specific consequences of not providing the number[ ], or the possible dissemination of the number[ ], nor [was] Greidinger notified of these facts by the Defendants before [he] applied to register to vote ... Greidinger [did not] ask[ ] for any of this information at the time [he] applied to register to vote.
....
(15) The Commonwealth of Virginia has an interest in obtaining and using social security numbers of registered voters to provide a means of positive identification and prevent voter fraud, and in making voter registration information available to the public. However, no state interest is served by disclosing the social security numbers of voters to private individuals who request voter information from local registrars in the Commonwealth of Virginia.
(16) The State Board of Elections has no prescribed procedure to prevent private individuals who request voter information at the offices of a local registrar from using voters' social security numbers for purposes unrelated to the electoral process. The State Board of Elections' position is that no law requires it to have such a procedure, and it is further the State Board of Elections' position that no such procedure can effectively be devised.
(17) The State Board of Elections discloses voter lists containing voters' social security numbers to political parties and candidates in order to enable the two major political parties to keep track of voters when they move from place to place.
(18) The Virginia State Board of Elections prepares lists of registered voters and supplies these lists to local registrars prior to each general election. The statewide voter registration database is maintained and updated on a continuing basis by local registrars.
(19) Social security numbers of applicants for voter registration are not routinely verified. The State Board of Elections believes that such requirement would necessitate approval by the U.S. Department of Justice under the Federal Voting Rights Act. However, local registrars ask for verification of social security numbers when, it appears to be the same as the social security number of a previously registered voter.
(20) The Virginia State Board of Elections does not provide information regarding registered voters to any Virginia Governmental Agency other than those to which information is required to be disclosed pursuant to the Virginia Code.
....
(22) The Virginia State Board of Elections is unaware of any situations in which political parties or candidates for office, upon examination of Voter Registration Lists, have prevented voter fraud through the use of social security numbers of Registered Voters. However, the Virginia State Board of Elections frequently uses the social security number to identify duplicate registration, thereby helping to prevent voter fraud.
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. 4 The district court observed that numerous state interests were advanced by the Virginia voter registration scheme, namely: the scheme eliminated voter duplication and possible fraud; allowed Virginia to keep track of voters who move to different locales; and assisted Virginia in eliminating disqualified voters from voter lists. Id. at 1110. Finally, the district court denied Greidinger's request for attorneys' fees, reasoning that the Privacy Act limits any award of fees and costs to willful or intentional conduct. Id. at 1110-11.
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, ...
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