Political party sues over SSN registration rule

Where the Democratic Party of Virginia alleged a state requirement that applicants disclose their nine-digit Social Security number to register to vote violates the Civil Rights Act of 1957, the Privacy Act and the U.S. Constitution, its claims survive motions to dismiss filed by election officials and the state’s Republican Party.

Background

The Democratic Party of Virginia and the Democratic Congressional Campaign Committee challenge two of Virginia’s election laws. The requirements that: (1) an applicant must disclose their full nine-digit social security number or SSN, to register to vote and (2) in order to receive mandatory notice of a defect on an absentee ballot envelope, a voter must submit their ballot by the Friday before Election Day and such voter will have until noon on the following Friday to cure the defect. Both the commonwealth, and the Republican Party of Virginia, or RPV, as intervenor, move to dismiss the complaint.

Standing

Although neither defendant challenged jurisdiction, an amicus argued the plaintiffs lack standing. The court disagrees. Based on the allegations in the complaint and the parties’ limited arguments, the court finds that plaintiffs have Article III standing at this stage based both on a direct injury and by showing an injury in fact to their members.

SSN requirement

In Count Two plaintiffs contend that the full SSN requirement violates the “Materiality Provision” of the Civil Rights Act of 1957 because a voter’s full SSN is immaterial to whether they are qualified to vote in Virginia. Under current law, a voter’s full SSN likely is material to determining whether they are qualified to vote because a full SSN can confirm a person’s citizenship status.

Plaintiffs have alleged, however, that the full SSN requirement may be unlawful under the U.S. Constitution or the Privacy Act. If plaintiffs prevail on those claims, then a voter’s full SSN could not be considered material. Because plaintiffs have pled facts that, if true, support their claim for relief, the court will deny the motions to dismiss as they relate to Count Two.

In Count Three, plaintiffs argue that the full SSN requirement violates the Privacy Act. However, a government may still require a full SSN if it, under the so-called grandfather exception, “maintained a system of records in existence and operating before January 1, 1975” that by law required the disclosure of a full SSN to verify an individual’s identity. The grandfather exception is an affirmative defense on which defendants must present evidence to prevail. The court will deny the motions to dismiss as to Count Three.

Plaintiffs, in Count One and Six, maintain that the full SSN requirement violates the U.S. Constitution. RPV contends that both of plaintiffs’ claims should be discredited because the Fourth Circuit has already held that the full SSN requirement does not violate the U.S. Constitution. The Fourth Circuit’s language is mere dicta and does not control the outcome of this case. Nonetheless, the Fourth Circuit’s comments serve as persuasive authority that this court will consider in resolving this case on the merits.

Turning to plaintiffs’ individual constitutional claims, the plaintiffs allege that the full SSN requirement unconstitutionally limits their First Amendment freedom of speech and freedom to associate. Without knowing precisely how burdensome the full SSN requirement is, the court cannot accurately compare it to Virginia’s asserted interests.

Moving next to Count Six, plaintiffs argue that the full SSN requirement unconstitutionally burdens their members’ right to vote. While the court cannot determine the extent of the burden put on the right to vote with this record, plaintiffs have at least stated a plausible claim for relief.

Notice and cure process

In Count Four, plaintiffs contend that the notice and cure process denies their members procedural due process as required by the 14th Amendment. In Count Five, plaintiffs argue that the notice and cure process unconstitutionally burdens their members’ right to vote

Courts have concluded that similar election regulations only create a minimal burden on the right to vote. Here, too, the notice and cure process only places a minimal burden on voters. The notice and cure process only requires that, if a voter wants notice of a defect on their absentee ballot envelope, they submit their ballot a few days early and correct any defect by the Friday after Election Day. Plaintiffs argue that the notice cutoff on the Friday before Election Day is too early, but this date is reasonably related to the state’s need to process absentee ballots in a timely fashion and alleviate the postelection day strain on election officials.

Defendants’ motions to dismiss granted in part, denied in part.

Democratic Party of Virginia v. Brink, Case No. 3:21-cv-756, April 19, 2022. EDVA at Richmond (Hudson). VLW 022-3-172. 29 pp.