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No. 92-1571







RAY H. DAVIS, General Registrar,




Amicus Curiae.


Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.


Argued: October 2, 1992

Decided: March 22, 1993

     Before RUSSELL and HAMILTON, Circuit Judges, and
     TRAXLER, United States District Judge for the District of South
     Carolina, sitting by designation.
     Reversed and remanded for further proceedings by published opinion.
     Judge Hamilton wrote the opinion, in which Judge Russell and Judge
     Traxler joined.
     ARGUED: Paul Reinherz Wolfson, PUBLIC CITIZEN LITIGA-
     TION GROUP, Washington, D.C., for Appellant. Roger Conant
     Wiley, Jr., Senior Assistant Attorney General, OFFICE OF THE
     ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON
     BRIEF: Mary Sue Terry, Attorney General of Virginia, K. Marshall
     Cook, Deputy Attorney General, Martha B. Brissette, Assistant Attor-
     ney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
     Virginia, for Appellees. Marc Rotenberg, David L. Sobel, COM-
     Washington, D.C., for Amicus Curiae.
     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
     The Constitution of Virginia requires all citizens otherwise quali-
     fied 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,
     S 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.
     S 24.1-56 (S 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.
     S 24.1-23(8) (S 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 omis-
     sion, Greidinger received a Denial of Application for Virginia Voter
     Registration from the General Registrar of Stafford County. Conse-
     quently, 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 dis-
     closure 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
     1 Those parties obtaining the computerized voting lists pursuant to S 24.1-
     23(8) must sign an oath averring to limit the use of the computerized voter
     lists to the specific purposes enumerated in the statute. See infra note 6. The
     record also reflects that the current cost of a statewide voter registration lit
     is $5,700.
     2 By agreement of the parties, Robert H. Davis was dismissed as a defen-
     3 The State Board of Elections oversees local registrars, publishes a hand-
     book of procedures, maintains the statewide computerized voter registration
     system, and prescribes voter registration cards and forms. Local registrars
     supervise voter registration, assist local electoral boards in conducting elec-
     tions and maintain records required by law. Va. Code Ann. S 24.1-19 and
     S 24.1-46.
     authorizes the collection and publication of SSNs for voter registra-
     tion, it unconstitutionally burdens his right to vote. Greidinger also
     alleged that Virginia's Voter Registration Application violates S 7(b)
     of the Privacy Act of 1974, Pub. L. No. 93-579,S 7, 88 Stat. 1896,
     1909 (1974), reprinted in 5 U.S.C. S 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) spec-
     ify 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 reg-
          ister to vote under the laws of the Commonwealth of
          . . . .
          (6)The Virginia Voter Registration Application[] com-
          pleted by Greidinger . . . did not specify whether dis-
          closure of the social security account number is man-
          datory or voluntary, by what statutory or other
          authority the number was requested, or what uses
          would be made of the number[], or the specific con-
          sequences of not providing the number[], or the possi-
          ble dissemination of the number[], nor [was] Greid-
          inger 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 regis-
          tered voters to provide a means of positive identifica-
          tion and prevent voter fraud, and in making voter
          registration information available to the public. How-
          ever, no state interest is served by disclosing the
          social security numbers of voters to private individu-
          als who request voter information from local regis-
          trars in the Commonwealth of Virginia.
          (16)The State Board of Elections has no prescribed pro-
          cedure to prevent private individuals who request
          voter information at the offices of a local registrar
          from using voters' social security numbers for pur-
          poses 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 con-
          taining 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 state-
          wide voter registration database is maintained and
          updated on a continuing basis by local registrars.
          (19)Social security numbers of applicants for voter regis-
          tration are not routinely verified. The State Board of
          Elections believes that such requirement would
          necessitate approval by the U.S. Department of Jus-
          tice 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 pro-
          vide information regarding registered voters to any
          Virginia Governmental Agency other than those to
          which information is required to be disclosed pursu-
          ant 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. How-
          ever, 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 S 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 withS 7(b) of the Pri-
     vacy Act and to submit a summary of the measures to be taken to
     effectuate compliance with the notice requirements of S 7(b). The dis-
     trict 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 con-
     ducting fair and honest elections.4 The district court observed that
     numerous state interests were advanced by the Virginia voter registra-
     tion 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 vot-
     ers 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 con-
     duct. Id. at 1110-11.
     4 In reaching this conclusion, the district court characterized the burden on
     Greidinger's fundamental right to vote as "minimal." Greidinger v. Davis,
     782 F. Supp. at 1110.
     Prior to the district court's decision, the Board began to draft a pro-
     posed 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, S 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 organiza-
     tions 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 judgment on his constitutional claim, followed by a
     motion for reconsideration. On May 1, 1992, the district court entered
     a final judgment and order, finding that the proposed Privacy Act
     notice complied with the mandates of the Privacy Act and denying
     Greidinger's motion for reconsideration. Greidinger noted a timely
     Greidinger argues that the "public disclosure" accompanying Vir-
     ginia'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 S 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."5 He also objects to
     5 In full, S 24.1-56 provides:
     S 24.1-23(8) which allows dissemination of a registered voter's SSN
     to a candidate for election or political party nomination, political
     party committee or official, incumbent office holder, and nonprofit
     organization which promotes voter participation and registration.6
          Books open to public inspection. -- Registration books shall be
          kept and preserved by the general registrar and shall be opened to
          the inspection of any qualified voter at the office of the registrar
          when the office is open for business. In addition, such book shall be
          available for inspection upon appointment, which appointment the
          general registrar shall make for all reasonable times requested. In
          any event, such books shall be available at additional days and
          times fixed by the secretary of the electoral board.
     6 In full, S 24.1-23(8) provides:
          Furnish, at a reasonable price, precinct lists for their districts to
          courts of the Commonwealth and the United States for jury selec-
          tion purposes, to candidates for election or political party nomina-
          tion to further their candidacy, political party committees or
          officials thereof for political purposes only, incumbent officeholders
          to report to their constituents; nonprofit organizations which pro-
          mote voter participation and registration for that purpose only; and
          for no other purpose and to no one else. In addition, any general
          registrar whose records of registered voters are automated may fur-
          nish such lists to courts of the Commonwealth and the United States
          for jury selection purposes. Precinct lists shall be by printout or by
          magnetic tape to be used on computer equipment as may be
          Any person receiving such precinct lists shall take and subscribe to
          the following oath:
          I understand that the lists requested are the property of the State
          Board of Elections of the Commonwealth of Virginia (or name
          of appropriate county or city) and I hereby affirm that I am a
          person authorized by S 24.1-23 of the Code of Virginia to
          receive a copy of the precinct lists described; and I further
          affirm that the lists will be used only for the purposes pre-
          scribed and for no other use, and that I will not permit the use
          or copying of such lists by persons not authorized by the Code
          of Virginia to obtain them.
          (Seal) Signature of Purchaser . . . .
     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 S 24.1-23(8) (candidates, political par-
     ties and officials, incumbents, and nonprofit organizations which pro-
     mote voter participation and voter registration) andS 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 predi-
     cated 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 (1976); see also Yick Wo v. Hopkins, 118
     U.S. 356, 370 (1886) (right to vote regarded as a fundamental right
     because it preserves all other rights); Reynolds v. Sims, 377 U.S. 533,
     555 (1964) ("[A]ny restrictions on that right[to vote] strike at the
     heart of representative government."). Despite the fundamental nature
     of the right to vote, states may nevertheless impose certain qualifica-
     tions on and regulate access to the franchise. Lassiter v. Northampton
     County Bd. of Elections, 360 U.S. 45, 50 (1959). Such powers have
     been employed to restrict the franchise in numerous contexts. See,
     e.g., Marston v. Lewis, 410 U.S. 679 (1973) (residency); Oregon v.
     Mitchell, 400 U.S. 112 (1970) (age minimum); and Ball v. James, 451
     U.S. 355 (1981) (interested voter status). As the Supreme Court rec-
     ognized in Storer v. Brown, 415 U.S. 724 (1974):
          [A]s a practical matter, there must be a substantial regula-
          tion of elections if they are to be fair and honest and if some
          sort of order, rather than chaos, is to accompany the demo-
          cratic processes. In any event, the States have evolved com-
          prehensive, and in many respects complex, election codes
          regulating in most substantial ways, with respect to both
          federal and state elections, the time, place, and manner of
          holding primary and general elections, the registration and
          qualifications of voters, and the selection and qualification
          of candidates.
     Id. at 730. 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
     The difficulty of the inquiry can best be seen through an ob-
     servation the Supreme Court made almost twenty years ago in Storer.
     In assessing the validity of state election laws under the Equal Protec-
     tion Clause, the Court observed:
          It is very unlikely that all or even a large portion of the state
          election laws would fail to pass muster under our cases; and
          the rule fashioned by the Court to pass on constitutional
          challenges to specific provisions of election laws provides
          no litmus-paper test for separating those restrictions that are
          valid from those that are invidious under the Equal Protec-
          tion Clause. The rule is not self-executing and is no substi-
          tute for the hard judgments that must be made. Decision in
          this context, as in others, is very much a matter of degree,
          very much a matter of consider[ing] the facts and circum-
          stances behind the law, the interests which the State claims
          to be protecting, and the interests of those who are disadvan-
          taged by the classification.
     415 U.S. at 730 (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. 7 In the context of
     voter qualifications, traditional equal protection strict scrutiny analy-
     sis has been applied. See Dunn v. Blumstein, 405 U.S. at 336
     ("`[B]efore that right [to vote] can be restricted, the purpose of the
     7 The Board argues that we should ignore ballot-access precedent because
     we have before us a voting rights case. This argument has been categorically
     rejected by the Supreme Court. See Anderson v. Celebrezze, 460 U.S. 780,
     786 (1983) ("`[T]he rights of voters and the rights of candidates do not lend
     themselves to neat separation.'") (quoting Bullock v. Carter, 405 U.S. 134,
     143 (1972)); Williams v. Rhodes, 393 U.S. 23, 30 (1968) (noting associa-
     tional and voting rights are "different, although overlapping, kinds of
     restriction and the assertedly overriding interest served by it must
     meet close constitutional scrutiny.'") (quoting Evans v. Cornman, 398
     U.S. 419, 422 (1970)); Hill v. Stone, 421 U.S. 289, 297 (1975) (Any
     restrictions other than residence, age, and citizenship must promote
     compelling state interests.). In applying strict scrutiny, the Supreme
     Court has invalidated certain measures enacted by states. See, e.g.,
     Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (right to
     vote predicated on $1.50 poll tax violates equal protection); Smith v.
     Allwright, 321 U.S. 649 (1944) (striking down white primary laws);
     Carrington v. Rash, 380 U.S. 89 (1965) (striking down on equal pro-
     tection grounds statute that prevented resident military personnel from
     voting where stationed); and Kramer v. Union Free School Dist. No.
     15, 395 U.S. 621 (1969) (striking down statute that prevented non-
     property owners from voting in school district election as violative of
     equal protection).
     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.
     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
     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 (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. The Court used this obser-
     vation to distinguish those cases along the Carrington-Dunn line
     which had applied strict scrutiny. Id. at 757. 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. 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 eligi-
     ble 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. 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 protec-
     tion strict scrutiny. Williams, 393 U.S. at 30-32; Bullock, 405 U.S. at
     142-44; Lubin v. Panish, 415 U.S. 709 (1974); Illinois Elections Bd.
     v. Socialist Workers Party, 440 U.S. 173 (1979); but see, Clements v.
     Fashing, 457 U.S. 957, 965-66 (1982) (plurality opinion) ("[n]ot all
     ballot access restrictions require `heightened' equal protection scru-
     However, in Anderson, the Court elected not to rest its decision on
     equal protection grounds, but rather directly on the First and Four-
     teenth Amendments. 460 U.S. at 786 n.7 ("In this case, we base our
     conclusions directly on the First and Fourteenth Amendments and do
     not engage in a separate Equal Protection Clause analysis."). See also,
     Norman v. Reed, 112 S. Ct. 698, 705 n.8 (1992) (quoting Anderson
     for the same proposition). The Anderson Court, however, found it
     helpful to rely on prior cases using the Equal Protection Clause analy-
     sis. 460 U.S. at 786 n.7 ("We rely, however, on the analysis in a num-
     ber of our prior election cases resting on the Equal Protection Clause
     of the Fourteenth Amendment."); Norman, 112 S. Ct. at 705 n.8
     (quoting Anderson for the same proposition).
     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 (quoting Storer , 415 U.S. at 730). In
     response, the Court developed an analytical framework that amounted
     to a weighing of factors. This framework essentially retained the indi-
     vidual components of the strict scrutiny calculus:
          [A court] must first consider the character and magnitude of
          the asserted injury to the rights protected by the First and
          Fourteenth Amendments that the plaintiff seeks to vindicate.
          It then must identify and evaluate the precise interest put
          forward by the State as justifications for the burden imposed
          by its rule. In passing judgment, the Court must not only
          determine the legitimacy and the strength of each of those
          interests, it also must consider the extent to which those
          interests make it necessary to burden the plaintiff's rights.
          Only after weighing all these factors is the reviewing court
          in a position to decide whether the challenged provision is
     Anderson, 460 U.S. at 789.
     Relying on the First and Fourteenth Amendments, the Court in
     Anderson held unconstitutional an Ohio statute that required an inde-
     pendent candidate for President, John Anderson, to file both a state-
     ment 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.
     Ohio proffered three state interests that justified the restriction: (1)
     voter education, (2) equal treatment, and (3) political stability. Id. at
     796. 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 inde-
     pendent candidate could have contributed. Id.  at 798. 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:
          To the degree that a State would thwart this interest by lim-
          iting the access of new parties to the ballot, we have called
          for the demonstration of a corresponding interest suffi-
          ciently weighty to justify this limitation, and we have
          accordingly required any severe restriction to be narrowly
          drawn to advance a state interest of compelling importance.
     Id. at 705. (citations omitted). Similar to Anderson, Norman involved
     a situation in which a state had promulgated statutes making it diffi-
     cult, but not impossible, for a new political party to obtain a position
     on the ballot. Returning to traditional strict scrutiny analysis, the
     Court struck two of the statutes at issue. The Court concluded that
     neither provision was narrowly tailored to meet the interests of Illi-
     nois. Id. at 705-08.
     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 bal-
     ancing 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 distinc-
     tion 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 ("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 ("Because the Texas filing-fee
     scheme has a real and appreciable impact on the exercise of the fran-
     chise, 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 (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 pur-
     poses, 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 Greid-
     inger'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. S 405(c)(2)(B).
     SSNs were first intended for use exclusively by the federal govern-
     ment 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 identification numbers. Pub. L. No. 87-397, 75 Stat. 828
     (codified as amended at 26 U.S.C. SS 6113, 6676).
     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 identi-
     fiers. In its report supporting the adoption of this provision, the Senate
     Committee stated that the widespread use of SSNs as universal identi-
     fiers 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 (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 cen-
     tralized computerized file, the Court observed:
          We are not unaware of the threat to privacy implicit in the
          accumulation of vast amounts of personal information in
          computerized data banks or other massive government files.
          The collection of taxes, the distribution of welfare and social
          security benefits, the supervision of public health, the direc-
          tion of our Armed Forces, and the enforcement of all crimi-
          nal laws all require the orderly preservation of great
          quantities of information, much of which is personal in char-
          acter and potentially embarrassing or harmful if disclosed.
          The right to collect and use such data is typically accompa-
          nied by a concomitant statutory or regulatory duty to avoid
          unwarranted disclosures.
     Id. at 605 (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, BOS-
     TON 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 bene-
     fits, 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).8 In California, reported cases of fraud involving the
     use of SSNs have increased from 390 cases in 1988 to over 800 in
     8 In greater detail, the Quint article paints a rather frightening portrait of
     what harm can come by the disclosure of an individual's SSN:
          For example, a Manhattan executive returned from vacation last
          month to a call from Citibank asking her about an unusual pattern
          of transactions in her accounts. Someone, armed with her Social
          Security number, had called the bank to request a change of address
          and order new checks (billed to her account, of course) and a
          replacement bank card.
          Not content with plundering the checking account, the thief, whose
          identity has not been determined, also sought and received approval
          for telephone banking, allowing money to be transferred from the
          executive's account to her account by telephone. Because she had
          been accumulating money in the savings account to pay for home
          renovations, the thief found a lode much larger than normal for an
          individual's checking account.
     1991. Y. Anwar, Thieves Hit Social Security Numbers, San Francisco
     Chronicle, August 30, 1991, A1, A2. Succinctly stated, the harm that
     can be inflicted from the disclosure of a SSN to an unscrupulous indi-
     vidual is alarming and potentially financially ruinous. These are just
     examples, and our review is by no means exhaustive; we highlight a
     few to elucidate the egregiousness of the harm. 9
     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. S 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) (disclo-
     sure of SSN constituted unwarranted invasion of privacy under
     FOIA). Further Congressional recognition of the privacy concerns is
     evident from S 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 con-
     sent to the possibility of a profound invasion of privacy when exercis-
     ing 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 rea-
     sonable. 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.10
     9 Other uses include unlocking the door to another's financial records,
     investment portfolios, school records, financial aid records, and medical
     10 Most importantly, we note that Virginia's voter registration scheme
     imposes a substantial burden on Greidinger's fundamental right to vote only
     to the extent that the scheme permits the public disclosure of his SSN. If the
     scheme provided for only the receipt and internal use of the SSN by Vir-
     ginia, no substantial burden would exist.
     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 justi-
     fies 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 S 24.1-56, Virginia stipulated in the district court
     that it had no state interest in disseminating SSNs to private individu-
     als. On appeal, Virginia argues that the disclosure of SSNs is a safe-
     guard against voter fraud. With respect to S 24.1-23(8), in addition to
     preventing voter fraud, Virginia argues that the statute furthers Vir-
     ginia'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
     (state has a compelling interest in protecting the integrity of the elec-
     toral process), and promoting voter participation. However, the
     inquiry does not end here. We must determine whether the disclosure
     of the SSN under S 24.1-23(8) and/or S 24.1-56 is narrowly tailored
     to fulfill that state interest. We conclude that it is not.11
     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 disclo-
     sure of the SSN and the attendant possibility of a serious invasion of
     privacy that would result from that disclosure. Accord, Pilcher v.
     Raines, 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).12
     11 Unquestionably, Virginia has a compelling state interest that is narrowly
     tailored in the receipt and internal use of a SSN. The internal use of SSNs
     assists in, among other things, identifying voter duplication and tracking fel-
     12 Interestingly, the Board never explains how the disclosure of SSNs to
     political parties furthers Virginia's interest in electoral participation. Moreo
     the point, the Board never explains why a SSN is more necessary to further
     voter participation than the name, address, date of birth, and other voter reg-
     istration information already provided.
     Most assuredly, an address or date of birth would sufficiently distin-
     guish among voters that shared a common name. Moreover, the same
     state interest could be achieved through the use of a voter registration
     number as opposed to a SSN. Following this tack, Virginia would
     derive the same benefits as the disclosure of a SSN. Thus, to the
     extent S 24.1-23(8) and S 24.1-56 allow Virginia's voter registration
     scheme to "sweep[] broader than necessary to advance electoral
     order," Norman, 112 S. Ct. at 706, it creates an intolerable burden on
     Greidinger's fundamental right to vote.
     In summary, we hold to the extent that S 24.1-23(8) and/or S 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 pro-
     tected 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 non-
     profit organizations which promote voter participation and registra-
     tion. 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.13
     13 In light of our decision, we believe it is unwise to review the district
     court's determination on the issue of attorneys' fees at this time.

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