November 8, 1993

The Honorable Joyce Hazeltine
Secretary of State
500 East Capitol
Pierre, SD 57501

OFFICIAL OPINION NO. 93-09

National Voter Registration Act of 1993 - Use of Social Security Numbers

Dear Secretary Hazeltine:

You have requested an official opinion from this Office concerning the following factual situation:

FACTS:

Section 5 of the National Voter Registration Act of 1993 requires that states conduct voter registration in conjunction with the state's driver's license application process. Section 5(c)(2)(A) of the Act prohibits states from duplicating any information on the voter registration portion of the application that was required in the driver's license portion of the application. It has been brought to my attention that the Privacy Act of 1974 (5 U.S.C. <185> 552) and the Social Security Act (42 U.S.C. <185> 405) may prohibit the involuntary use of a Social Security number on voter registration cards. The current voter registration card asks for the Social Security number but it is not required for registration.

Under current practice, the Department of Commerce and Regulation, Division of Motor Vehicles, requires the Social Security number as a means of identification for motor vehicle license registration. In addition, the Social Security number may, with the applicant's consent, be utilized as the individual's driver's license number. Under the Secretary of State's current proposed "motor voter" registration system to implement the National Voter Registration Act of 1993, the Social Security number utilized by the Division of Motor Vehicles would also be used to print a voter registration card.

Based upon the foregoing facts, you have asked the following questions:

QUESTIONS:

1. May the Social Security number given on the driver's license application automatically be used on the voter registration form?

2. If the answer to question No. 1 is "no," may the Social Security number given for driver's license registration be used on the voter registration form unless the person registering it objects to its use for voter registration purposes?

IN RE QUESTION NO. 1:

The following are the provisions of federal law relevant to your first question:

Section 5 of the National Voter Registration Act of 1993, "Simultaneous Application for Voter Registration and Application for Motor Vehicle Driver's License," provides in relevant part:

(a) IN GENERAL -- (1) Each State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application.

(2) An application for voter registration submitted under paragraph (1) shall be considered as updating any previous voter registration by the applicant.

(c) FORMS AND PROCEDURES.--(1) Each State shall include a voter registration application form for elections for Federal office as part of an application for a State motor vehicle driver's license.

(2)The voter registration application portion of an application for a State motor vehicle driver's license--

(A) may not require any information that duplicates information required in the driver's license portion of the form (other than a second signature or other information necessary under subparagraph (C));

(B) may require only the minimum amount of information necessary to--

(i) prevent duplicate voter registrations; and
(ii) enable State election officials to assess the eligibility of the applicant and to administer voter registration and other parts of the election process;

(C) shall include a statement that--

(i) states each eligibility requirement (including citizenship);
(ii) contains an attestation that the applicant meets each such requirement; and
(iii) requires the signature of the applicant, under penalty of perjury;

(D) shall include, in print that is identical to that used in the attestation portion of the application--

(i) the information required in section 8(a)(5) (A) and (B);
(ii) a statement that, if an applicant declines to register to vote, the fact that the applicant has declined to
register will remain confidential and will be used only for voter registration purposes; and
(iii) a statement that if an applicant does register to vote, the office at which the applicant submits a voter
registration application will remain confidential and will be used only for voter registration purposes; and

(E) shall be made available (as submitted by the applicant, or in machine readable or other format) to the appropriate State election official as provided by State law.

The Privacy Act of 1974 (Act of December 31, 1974), Public Law 93-759, codified at 5 U.S.C. <185> 552a, provides as follows:

(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his Social Security account number.

(2) the provisions of paragraph (1) of this subsection shall not apply with respect to--

(A) any disclosure which is required by Federal statute, or

(B) the disclosure of a Social Security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.

(b) Any Federal, State, or local government agency which requests an individual to disclose his Social Security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.

Finally, 42 U.S.C. <185> 405(c)(2)(C) provides in pertinent part:

(c) Records of wages and self-employment income.

(C)(i) It is the policy of the United States that any State (or political subdivision thereof) may, in the administration of any tax, general public assistance, driver's license, or motor vehicle registration law within its jurisdiction, utilize the Social Security account numbers issued by the Secretary for the purpose of establishing the identification of individuals affected by such law, and may require any individual who is or appears to be so affected to furnish to such State (or political subdivision thereof) or any agency thereof having administrative responsibility for the law involved, the Social Security number (or numbers, if he has more than one such number) issued to him by the Secretary.

(v) For purposes of clause (i) of this subparagraph, an agency of a State (or political subdivision thereof) charged with the administration of any general public assistance, driver's license, or motor vehicle registration law which did not use the Social Security account number for identification under a law or regulation adopted before January 1, 1975, may require an individual to disclose his or her Social Security number to such agency solely for the purpose of administering the laws referred to in clause (i) above and for the purpose of responding to requests for information from any agency operating pursuant to the provisions of part A or D of title IV of this Act [42 USCS <185><185> 601 et seq., 651 et seq.].

(vii)

(I) Social Security account numbers and related records that are obtained or maintained by authorized persons pursuant to any provision of law, enacted on or after October 1, 1990, shall be confidential, and no authorized person shall disclose any such Social Security account number or related record.

(III) For purposes of this clause, the term "authorized person" means an officer or employee of the United States, an officer or employee of any State, political subdivision of a State, or agency of a State or political subdivision of a State, and any other person (or officer or employee thereof), who has or had access to Social Security account numbers or related records pursuant to any provision of law enacted on or after October 1, 1990. For purposes of this subclause, the term "officer or employee" includes a former officer or employee.

(IV)For purposes of this clause, the term "related record" means any record, list, or compilation that indicates, directly or indirectly, the identity of any individual with respect to whom the Social Security account number is maintained pursuant to this clause.

The first question you pose is whether a Social Security number given for purposes of obtaining a South Dakota driver's license automatically may be used for voter registration. The answer to this question is "no." In AGR 89-35, my immediate predecessor opined that the State may require, as part of the driver's license application, the person's Social Security number for identification purposes. I am troubled by that conclusion. There is nothing within this opinion or the relevant provisions of federal law stated above, however, that allows or infers that the Social Security number may be required for voter registration purposes. Though Congress contemplated that information necessary for a driver's license could be utilized, with minor exceptions, for voter registration, there is nothing within the National Voter Registration Act of 1993, that approves defiance of, or can be inferred otherwise to override the provisions of, 42 U.S.C. <185> 405 or Section 7 of the Privacy Act of 1974.

In addition, from my review of 42 U.S.C. <185> 405, I cannot conclude that voter registration is an authorized exception to Social Security number confidentiality. Therefore, based upon the above, it is my opinion that the Office of the Secretary of State may not for voter registration purposes automatically mandate the use of the Social Security number required to be given for driver's license registration without the registrant's consent.

IN RE QUESTION NO. 2:

Your second question is whether a Social Security number utilized for driver's license registration purposes may be used for voter registration if the person registering consents to such use. The answer to this question is "yes." It is my opinion, based upon a review of the relevant provisions of federal law, that nothing prevents a state from requesting Social Security number information for identification purposes as long as it is clear that such request may be refused by the applicant with no loss of state benefits (i.e. voter registration). It is a Department of Commerce and Regulation policy to request a Social Security number for use as a driver's license number. If, however, the individual in obtaining a driver's license number requests a computer-generated license number, his or her request must be granted.

It is my opinion from a review of the Privacy Act of 1974, as well as the relevant provisions of 42 U.S.C. <185> 405, that Congress is only concerned about mandated access to Social Security numbers; voluntary access for a range of purposes is authorized. Such voluntary access obviously would include use of a Social Security number for voter registration. However, this consent must be separate and apart from that given for driver's license purposes, in order for the State to so utilize the number. Absent consent, use of the person's Social Security number would be unauthorized.

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