When South Dakota launches motor voter registration in 1993, can the Social Security number that the DMV already has on file from the driver's license application automatically be reused on the voter registration card without asking the applicant separately, or does the applicant need to consent?
Plain-English summary
Congress passed the National Voter Registration Act in 1993. Section 5 of that act required states to integrate voter registration into the driver's license application process, with one carefully-drafted ground rule: the voter registration portion of the form may not duplicate any information required in the driver's license portion. South Dakota's Secretary of State was building the "motor voter" system to implement that and asked the AG a clean legal question. The DMV already collected Social Security numbers for driver's license applications. Could that SSN automatically populate the voter registration card too?
The AG said no. Then the AG said yes-with-an-asterisk.
The no came from the federal Privacy Act of 1974 and the Social Security Act, both of which constrained government use of SSNs. The Privacy Act prohibited any government agency from denying a right, benefit, or privilege based on a person's refusal to disclose an SSN, unless the disclosure was required by federal statute or fell within a specific pre-1975 exception. The Social Security Act, at 42 U.S.C. § 405, declared it U.S. policy that states may use SSNs in administering tax, public assistance, driver's license, and motor vehicle registration laws, but did not list voter registration as an authorized purpose. The 1990 amendments to that act also made SSNs and related records held by authorized persons confidential, with disclosure tightly limited.
The Voter Registration Act itself was silent on SSN reuse. It allowed voter registration to draw on driver's license information without duplicate collection, but it did not override the Privacy Act or the SSN confidentiality requirements of 42 U.S.C. § 405. So the AG concluded: the Office of the Secretary of State could not mandate use of the driver's license SSN on the voter registration card without the registrant's separate consent.
The yes-with-an-asterisk came on the second question. If the applicant separately consented to use of the SSN for voter registration purposes, the Secretary of State could use it. The Privacy Act focused on mandated disclosure; voluntary disclosure for a defined purpose was authorized. So the practical solution was to ask the applicant separately, at the driver's license counter, whether they consented to their SSN being used on the voter registration card. A yes meant the SSN could go on the voter card; a no or no answer meant it could not.
The AG specifically noted that the consent had to be "separate and apart from that given for driver's license purposes." Bundling the two consents into a single signature on a single form would not satisfy the federal scheme.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The NVRA, the federal Privacy Act, and 42 U.S.C. § 405 have all been amended in the decades since this opinion was issued. Modern motor voter systems also intersect with Real ID, HAVA (Help America Vote Act of 2002), and state-level voter ID statutes. Election officials should consult current federal and South Dakota law before designing or modifying SSN-handling on registration forms.
What the opinion meant at the time
For the Secretary of State, the opinion shaped the design of the 1993 motor voter implementation. The voter registration card could not automatically pull the SSN from the driver's license record. Either a separate consent box (specific to SSN use for voter registration) had to be added to the joint form, or the SSN field had to be left off the voter card altogether.
For DMV staff at the counter, the opinion meant a brief additional step on every motor voter sign-up: explain the SSN reuse, ask for explicit consent, record the answer, and pass the SSN through to the voter system only on yes.
For voters, the opinion preserved a meaningful consent choice. A driver could choose to share their SSN with the DMV for identification purposes (or use a computer-generated license number instead) and could separately choose whether to share that SSN with the voter registration system. Refusing either did not impair their ability to get a license or to register to vote.
For county auditors processing registrations and election officials maintaining voter files, the opinion meant that the SSN field on voter records would be populated only for consenting voters. Some records would have the SSN, others would not. Duplicate-prevention and identity-matching procedures would have to work with that mixed reality.
For lawyers advising on data privacy across government programs, the opinion was a clean illustration of the federal Privacy Act's reach. Consent given for one program (driver's license) did not bleed into a second program (voter registration), even where the same agency held the data. Separate consent for separate purposes was the standard.
Common questions
Q: Did the AG say voters had to provide an SSN to register to vote?
A: No. The SSN was never required for voter registration. The opinion was about whether the SSN already given for the driver's license could be auto-populated onto the voter card. The answer was no without separate consent.
Q: Did the AG say the SSN was required for the driver's license?
A: The opinion noted that a 1989 prior AG opinion (AGR 89-35) had concluded that the state could require the SSN for driver's license identification, and the 1993 AG noted unease with that conclusion. But the question before the AG was not about the driver's license requirement; it was about the SSN reuse for voter registration. So the AG did not directly overrule the 1989 opinion.
Q: What did the Privacy Act of 1974 actually say about SSNs?
A: Section 7 (codified at 5 U.S.C. § 552a note) made it unlawful for any federal, state, or local government agency to deny a right, benefit, or privilege because of an individual's refusal to disclose their SSN, with two exceptions: where disclosure was required by federal statute, and where pre-1975 state or local law had already required SSN disclosure to verify identity. It also required agencies requesting SSNs to inform the individual whether disclosure was mandatory or voluntary, the statutory or other authority for the request, and what uses would be made of the SSN.
Q: Did 42 U.S.C. § 405(c)(2) help or hurt the reuse argument?
A: It cut in both directions. The section's clause (i) authorized states to use SSNs in administering tax, public assistance, driver's license, and motor vehicle registration laws. Voter registration was not on that list. Clause (vii), added in 1990, made SSNs and related records confidential as held by "authorized persons." The AG read those together to mean voter registration was not an authorized use without consent.
Q: Could SD voluntarily request the SSN on the voter registration card?
A: Yes. The opinion concluded that nothing in federal law prevented a state from requesting SSN information for identification purposes, provided it was clear the request could be refused without loss of state benefits (here, voter registration). A clear "this is optional" notice on the form would have satisfied the Privacy Act notice requirement.
Q: Why was a separate consent required, rather than bundling it with the driver's license consent?
A: Because the SSN had been given for a specific purpose (driver's license identification). Federal law treats consent as tied to purpose. Using the SSN for a different purpose (voter registration) required separate authorization. Bundling would have functionally coerced the SSN release for voter registration as a condition of getting the driver's license, which the Privacy Act prohibits.
Q: What happens if a voter consents at the counter but later wants to revoke that consent?
A: The opinion did not address revocation. State practice on revocation of consent to use of personal data has evolved since 1993 and would now interact with state public records, election integrity, and data minimization statutes.
Q: Could the federal government require a state to use SSNs on voter cards?
A: Not under the 1993 statutes considered in this opinion. The NVRA permitted voter registration to draw on driver's license information but did not override the Privacy Act or 42 U.S.C. § 405 SSN constraints.
Background and statutory framework
The National Voter Registration Act of 1993 (NVRA, Pub. L. 103-31) was the federal "motor voter" law. Section 5 of the NVRA required that any application for a state motor vehicle driver's license also serve as a voter registration application, unless the applicant declined to sign the voter portion. The form had to avoid duplicating information already required in the driver's license portion, include statements of eligibility requirements (including citizenship), an attestation signed under penalty of perjury, and confidentiality assurances about declinations and registration office locations.
The federal Privacy Act of 1974 was the underlying constraint on SSN handling. Section 7 of the Privacy Act (5 U.S.C. § 552a note) prohibited any government agency from denying a right, benefit, or privilege because of refusal to disclose an SSN, except where federal statute required disclosure or pre-1975 state or local law had already required SSN disclosure to verify identity. The Privacy Act also required agencies to disclose, when asking for an SSN, whether the disclosure was mandatory or voluntary, the authority for asking, and the uses that would be made of the number.
42 U.S.C. § 405(c)(2) was the Social Security Act's parallel framework. Clause (i) declared a federal policy that states could use SSNs for tax, public assistance, driver's license, and motor vehicle registration purposes. Clause (v) (added in 1976) addressed states that adopted SSN-use after 1975. Clause (vii), added by the 1990 amendments, imposed confidentiality on SSNs obtained or maintained by authorized persons under any provision of law enacted on or after October 1, 1990.
The 1993 AG read those provisions together. The NVRA explicitly authorized voter registration to draw on driver's license information without duplicate collection but did not list voter registration among the SSN-use purposes authorized by 42 U.S.C. § 405. The Privacy Act's bar on mandatory disclosure applied: South Dakota could not condition voter registration on SSN disclosure. The Privacy Act's voluntary-disclosure exception meant that with informed consent, the SSN could be used for voter registration.
The AG settled on a separate-consent rule: at the DMV counter, the applicant had to be asked separately whether they consented to their SSN being used for voter registration purposes. The driver's license consent did not carry over.
Citations and references
Federal statutes:
- Section 5 of the National Voter Registration Act of 1993 (Pub. L. 103-31) (motor voter; voter registration as part of driver's license application)
- 5 U.S.C. § 552a (Privacy Act of 1974, especially Section 7 on SSN disclosure)
- 42 U.S.C. § 405(c)(2)(C) (Social Security Act provisions on state SSN use)
Prior AG opinions referenced:
- AGR 89-35 (state may require SSN for driver's license identification)
Source
Original opinion text
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. § 552) and the Social Security Act (42 U.S.C. § 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:
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May the Social Security number given on the driver's license application automatically be used on the voter registration form?
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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. § 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. § 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 §§ 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. § 405 or Section 7 of the Privacy Act of 1974.
In addition, from my review of 42 U.S.C. § 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. § 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.
MWB:JPH:nan