Challenge to voting law requiring full SSN survives

A challenge by the Democratic Party of Virginia, or DVPA, to the state’s requirement that voting registrants disclose their full nine-digit Social Security number has survived a motion to dismiss from the State Board of Elections and the Republican Party of Virginia.

The Eastern District of Virginia found that the DVPA and the Democratic Congressional Campaign Committee, or DCCC, had adequate standing to challenge the law based on their allegations of direct injury to voter registration drives and absentee ballot efforts.

Judge Henry E. Hudson said the plaintiffs stated plausible claims that the full SSN requirement violated the Civil Rights Act, the U.S. Constitution, and the Privacy Act.

Hudson dismissed the plaintiffs’ challenges to the notice and cure process due to the minimal burden placed on voters compared to the state’s interests.

The April 19 decision is Democratic Party of Virginia, et al., v. Brink, et al. (VLW 022-3-172).

The voting statutes

Virginia’s full SSN requirement is enshrined in its 1971 Constitution and repeated in its statutes. The registrar must “never allow an applicant to register without disclosing their full SNN,” explained Hudson.

The notice and cure provisions of state voting law require the registrar to notify a voter of mistakes on an absentee ballot envelope and give them an opportunity to correct the error if it was received by the Friday before Election Day.

If the voter submits the ballot later, the registrar may — but is not required to — provide notice.

Standing

Although jurisdiction was not challenged, Hudson said it was the court’s independent obligation to ensure it was proper. “The traceability and redressability of Plaintiffs’ alleged injury are not in doubt [but] [w]hether Plaintiffs have suffered an injury in fact, however, is a closer question,” he wrote.

According to the plaintiffs, the full SSN requirement harmed their voter registration efforts because voters are reluctant to disclose it, while the notice and cure process makes it harder for them to help cure defective absentee ballots. The judge found these allegations of direct harm were adequate for standing.

The SSN challenge

The plaintiffs claimed the SSN requirement violated the “Materiality Provision” of the Civil Rights Act, the Privacy Act and their First Amendment speech and association rights.

The Materiality Provision prohibits a government from denying one’s right to vote because of a mistake on voting documents if it is not material in determining the voter’s qualifications.

Hudson found that a voter’s full SSN could confirm a person’s citizenship status and therefore was likely material to their voting qualifications. However, “if plaintiffs prevail on [the First Amendment and Privacy Act] claims, then a voter’s full SSN could not be considered material,” he said.

The Privacy Act prevents a government from denying one’s right to vote if they refuse to disclose their full SSN. A grandfather exception applies when a government maintained an existing record system that required the full SSN before 1975.

The defendants argued the grandfather exception applies because the full SSN requirement is stated in Virginia’s 1971 Constitution. The plaintiffs responded that, although required, this was not actually enforced until after 1975.

Hudson rejected the defendants’ argument, finding insufficient facts to establish the defense. The judge found the plaintiffs’ allegation that Virginia would deny the right to vote without full SSN disclosure sufficient to state a claim under the Privacy Act.

The plaintiffs alleged that the SSN requirement unconstitutionally limited their recruitment and registration of voters in violation of their First Amendment speech and association rights. The plaintiffs also contended that applicants are concerned about the safety of their SSNs, which most impacts Black and young applicants who are more likely to attend registration drives and be Democrats, they said.

Hudson analyzed these claims under the Anderson/Burdick test, which balances the claimant’s interests against the government’s active role in structuring elections.

Under Anderson/Burdick, the court first considers the character and magnitude of the asserted injury to the rights being vindicated; the more severe the burden, the stricter the scrutiny.

Hudson acknowledged that the “sensitivity of a person’s SSN is appreciated” and found it convincing that the U.S. Census Bureau no longer required full SSN disclosure due to security concerns.

“Without a more complete record, the Court cannot say whether the burden on Plaintiffs and applicants is substantial, minimal, or somewhere in between,” and “cannot accurately compare it to Virginia’s asserted interests,” Hudson wrote.

Finding that the plaintiffs stated plausible constitutional claims, the judge denied the motions to dismiss.

The notice and cure challenge

The plaintiffs said the notice and cure process denied their members’ procedural due process under the Fourteenth Amendment and unconstitutionally burdened their right to vote.

While the 4th U.S. Circuit Court of Appeals has not addressed which test to employ in a procedural due process challenge to an election regulation, the three circuits that have considered the question have applied Anderson/Burdick, Hudson noted.

“Unlike run-of-the-mill procedural due process issues, ‘there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to
accompany the democratic processes.’”

— Judge Henry E. Hudson

The judge added that the U.S. Supreme Court has affirmatively stated courts “must resolve” state election law challenges under the First and Fourteenth Amendments using Anderson/Burdick.

“[U]nlike run-of-the-mill procedural due process issues, ‘there must be a ­ substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes,’” Hudson said.

The plaintiffs primarily argued that the notice and cure process disenfranchises voters who fill out an absentee ballot correctly and have no opportunity to fix the mistake.

The plaintiffs’ argument was “in tension with longstanding Supreme Court precedent” that the court “need only consider the burden on voters who do follow the regulation,” according to Hudson.

“The burden on voters is that they must fill out all material information on their ballot envelope correctly, and they will only receive a chance to cure the defects on their ballot envelope if they submit it by the Friday before Election Day,” the judge said.

Finding that the process places only a minimal burden on voters, Hudson also held that the notice cutoff date is reasonably related to the state’s interest in the timely processing of ballots and alleviation of post-election strain on election officials.

The court next compared the voters’ burden to the state’s articulated interests in reducing administrative burden and ensuring fair elections with final results. Hudson found both interests to be important and legitimate.

The plaintiffs argued “it would be hard to make that ‘hard judgment’ in this case without a more complete factual record,” but the judge disagreed.

“In this case, since a lower level of scrutiny applies due to the minimal burden placed on voters, and Virginia proclaims that it has two interests that multiple courts have upheld as important in the past, dismissal of the notice and cure claims is appropriate,” he concluded.