Appendix — McKay v. United States

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Supreme Cout, U.S.

FILED

OOT111 wan 9

No. - OFFICE OF THE Clie

In The

Supreme Court Of The United States

MARTIN S. MCKAY,

Petitioner,

UNITED STATES OF AMERICA,

Intervenor,

BROOK THOMPSON,

Individually and as

Coordinator of Elections,

State of Tennessee,

RILEY C. DARNELL,

_ Secretary of State,

State of Tennessee,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

Martin S. McKay

1920 Gunbarrel Road, # 203

Chattanooga, TN 37421

(423) 778-3286

_____ Petitioner Pro Se

(i)

TABLE OF CONTENTS

Appendix A — Order Of The United States Court

Of Appeals For The Sixth Circuit

[ Entered October 27, 2000].............

Appendix B — Judgement Of The United States Court

Of Appeals For The Sixth Circuit

[ Entered September 18, 2000]...........

Appendix C — Order Of Judge Curtis L. Collier,

United States District Court, Eastern District

Of Tennessee At Chattanooga

[ Entered October 29, 1999].............

Appendix D — Memorandum Of Judge Curtis L. Collier,

United States District Court, Eastern District

Of Tennessee At Chattanooga

[ Entered October 29, 1999].............

Appendix E — Scheduling Order Of Judge Curtis L.

Collier, United States District Court, Eastern

District Of Tennessee At Chattanooga

[ Entered February 26, 1999]............

Appendix F — Order Of Judge Curtis L. Collier,

United States District Court, Eastern District

Of Tennessee At Chattanooga

{ Entered November 24, 1998}...........

(ii)

Appendix G — Relevant Statutory Provisions......... 42a

Intervention By United States

(28 UBC: (OR ia is ee 8 i 42a

Civil Rights Act of 1964

ook te Fem ho. Per ee rer rere ete 42a

Privacy Act of 1974, Section 7

(PL. 93-STB ETS 5 GG Ie 43a

National Voter Registration Act of 1993

Simultaneous Application For

Voter Registration And Driver

License

(42 UBC. § ISTR ccc tcenvess 44a

National Voter Registration Act of 1993

Contents Of Mail Voter

Registration Form

(42 U.S. S PSTD 6c 5 veces cee cendeeus 44a

Qualified Voter

(TENN. CODE ANN. § 2-2-102)............. 45a

Registration Form

~ (TENN. CODE ANN. § 2-2-116)............. 4Sa

Permanent Registration Records Open

To Inspection

(TENN. CODE ANN. § 2-2-127)............. 45a

Voter Registration Lists — Purchase

By Citizens —_

(TENN. CODE ANN. § 2-2-138)............. 46a

(iti)

= Stipulation By Parties That Plaintiff

Attempted To Register To Vote Using A

Mail-In Application...................... 47a

APPENDIX A

{ Entered 10/27/00 }

No. 99-6598

UNITED STATES COURT OF APPEALS -

FOR THE SIXTH CIRCUIT

MARTIN S. MCKAY,

Plaintiff-Appeilant,

UNITED STATES OF AMERICA,

Intervenor,

Vv.

BROOK THOMPSON, individually and as

Coordinator of Elections,

State of Tennessee,

RILEY C. DARNELL, Secretary Of State,

State Of Tennessee,

Defendants-Appellees,

BEFORE: KENNEDY and NORRIS, Circuit Judges; and

KATZ, District Judge.

ORDER

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

* Hon. David A. Katz, United States District Court for the

Northern District of Ohio, sitting by designation.

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

rehearing and concludes that the issues raised in the petition

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN

CLERK

[ Entered 09/18/00 ]

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARTIN S. MCKAY,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

Intervenor,

Vv.

BROOK THOMPSON, individually and as

Coordinator of Elections,

State of Tennessee,

RILEY C. DARNELL, Secretary of State,

State of Tennessee,

Defendants-Appellees,

CAROLYN JACKSON, individually and as

Administrator of Elections,

Hamilton County, Tennessee,

CLAUDE RAMSEY, County Executive,

Hamilton County, Tennessee,

Defendants.

No. 99-6598

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 98-00354--Curtis L. Collier, District Judge.

Submitted: August 1, 2000

Decided and Filed: September 18, 2000

Before: KENNEDY and NORRIS, Circuit Judges; KATZ,

District Judge.”

COUNSEL

ON BRIEF:

Stephanie R. Marcus, UNITED STATES

DEPARTMENT OF JUSTICE, CIVIL

DIVISION, APPELLATE STAFF,

Washington, D.C., for Intervenor.

Janet M: Kleinfelter, OFFICE OF THE

ATTORNEY GENERAL, FINANCIAL

DIVISION, Nashville, Tennessee, for

Appellee.

Martin S. McKay, Chattanooga, Tennessee, pro se.

OPINION

ALAN E. NORRIS, Circuit Judge. Pro se plaintiff

Martin S. McKay brought suit in district court against two

* The Honorable David A. Katz, United States District Judge for

the Northern District of Ohio, sitting by designation.

Tennessee state election officials and two Hamilton county

election officials, in their official and individual capacities.

McKay wishes to stop Tennessee from continuing its practice

of requiring its citizens to disclose their social security

numbers as a precondition to voter registration. The district

court granted summary judgment for defendants. McKay

now appeals. Upon de novo review, we affirm for the reasons

stated below.

A. Statutory Construction of the Tennessee Statute

We begin by noting that the Tennessee code provides

that: "[a] citizen of the United States eighteen (18) years of

age or older who is a resident of this state is a qualified voter

unless the citizen is disqualified under the provisions of this

title or under a judgment of infamy pursuant to § 40-20-112."

TENN. CODE ANN. § 2-2-102 (1994) (emphasis added).

Therefore, other provisions of the title may disqualify a

citizen for failing to submit a social security number during

the registration process. We have been unable to locate a

published Tennessee state court decision indicating whether

Tennessee law actually requires social security numbers for

voter registration.’

In the case at bar the Tennessee Coordinator of

Elections and the Tennessee Secretary of State, both

defendants in this litigation, have made a final administrative

| hata conty ftatals wero Seraiened from the case ond are not

parties to this appeal.

? An unpublished decision, Carter v. Dunn, No. 12507 (Tenn. Ct.

App. 1976), suggests that social security number |

disclosure is mandatory.

lhe Ake Ni as DiRT ity (Rah es me

determination that Tennessee law requires McKay to disclose

his social security number in order to register to vote. We

are reluctant to overrule such an interpretation when the

meaning ascribed by state officials appears to be reasonable,

presents no conflict with previous caselaw, and can be readily

challenged by McKay in state court.

B. Privacy Act of 1974, Public L. No. 93-579, § 7

McKay argues Tennessee is prohibited by Public Law

93-579, section 7, an uncodified provision of the Privacy Act,

from conditioning the right to vote upon the disclosure of

one's social security number. See Privacy Act of 1974, Pub.

L. No. 93-579, § 7, 88 Stat. 1896, 1909 (1974). To support

* Section 7 provides that:

(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 [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 |, 1975, if such disclosure was required

under statute or regulation adopted prior to such

date to verify the identity of a 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.

this argument, he relies upon McKay v. Altobello, No. 96-

3458, 1996 WL 266717 (E.D. La. May 16, 1997), a case he

successfully litigated to force Louisiana to allow him to vote

without disclosing his social security number.

The district court correctly distinguished Altobello on

the ground that Tennessee, unlike Louisiana, had maintained

"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." Pub. L. No. 93-579, § 7, 88 Stat. 1896,

1909. Tennessee enacted its statute requiring social security

numbers for voter registration in 1972. The court also

correctly concluded that when McKay failed to respond to

the motion for summary judgment, he defaulted on his duty to

produce affirmative evidence capable of raising a material

question of fact about whether the state had a "system of

records" in effect prior to the enactment of the Privacy Act.

See, e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479

(6th Cir. 1989) (discussing nonmovant's affirmative burden).

We decline to entertain the arguments regarding other

material questions of fact raised for the first time in McKay's

reply brief. See United States v. Jerkins, 871 F.2d 598, 602

n. 3 (6th Cir. 1989).

C. National Voter Registration Act, 42 U.S.C. § 1973gg-

3(¢)(2)(B)

McKay also points to section 2-2-116 of the

Tennessee state code, which requires disclosure of a social

security number as a pre-condition to voter registration. See

TENN. CODE ANN. § 2-2-116 (Supp. 1999). He argues that

this provision violates the National Voter Registration Act

("NVRA") because a social security number is not essential to

accomplishing the limited permissible purposes identified in

BRE

* (eS ap OBE aR AEE DOE SAREL EAGT ACRE TE ac BE PNA

42 U.S.C. § 1973gg-3(c2)(B). According to McKay, 42

U.S.C. § 1973gg-3(ch(2)(B) permits the state to only “require

the minimum amount of information necessary" to prevent

duplicate voter registration and determine whether he is

eligible to vote.

The district court properly rejected McKay's

argument. The NVRA does not specifically forbid use of

social security numbers. As previously discussed, the Privacy

Act contains a more specific "grandfather" provision that

Congress intended to survive the more general provisions of

the NVRA. See Radzanower v. Touche Ross & Co., 426

U.S. 148, 153 (1976) (“It is a basic principle of statutory

construction that a statute dealing with a narrow, precise, and

specific subject is not submerged by a later enacted statute

covering a more generalized spectrum.").

D. Civil Rights Act of 1964, 42 U.S.C. § 1971(a)(2)(B)

Count three of McKay's complaint alleged a violation

of 42 U.S.C. § 1971(a)(2)(B), a provision of the Civil Rights

Act of 1964. He argues that his social security number was

not "material" to determining his qualification for voting, and

therefore his omission of that information cannot be grounds

for refusing his registration. The district court correctly

dismissed this claim for lack of standing. Section 1971 is

enforceable by the Attorney General, not by private citizens.

See 42 U.S.C. § 1971(c); Willing v. Lake Orion Community

Sch. Bd. of Trustees, 924 F. Supp. 815, 820 (E.D. Mich.

1996).

D. Constitutional Claims as Enforced Pursuant to 42 U.S.C.

§ 1983

McKay asserts five constitutional claims in support of

his 42 U.S.C. § 1983 action.

We reject McKay's first claim that his fundamental

right to vote was unconstitutionally burdened by the social

security number disclosure requirement. See Greidinger v.

Davis, 988 F.2d 1344, 1352-54 & n.10 (4th Cir. 1993)

(indicating that Virginia's voter registration scheme would not

violate the fundamental right to vote if its scheme had merely

provided for receipt and internal use of the social security

number by Virginia electoral officials).

We also reject McKay's second claim that the

enforcement of section 2-2-116 of the Tennessee state code

unconstitutionally infringed upon his First Amendment right

to free exercise of religion, as incorporated by the Fourteenth

Amendment, by forcing him to violate his religious beliefs in

order to vote.‘ A state law that is rationally related to a

legitimate state purpose will be upheld against a free exercise

claim, even in a “hybrid" situation involving other

fundamental rights such as voting, so long as the law is

generally applicable, not aimed at particular religious

practices, and free of a system of particularized exceptions.

See Employment Div. v. Smith, 494 U.S. 872, 877-78 (1990);

Kissinger v. Board of Trustees, 5 F.3d 177, 179 (6th Cir.

1993). McKay's reliance upon Leahy v. District of

Columbia, 833 F.2d 1046 (D.C. Cir. 1987), is misplaced

because that case utilized the least restrictive

means/compelling state interest standard subsequently

overruled by Smith. See City of Boerne v. Flores, 521 U.S.

507, 512-14 (1997).

* According to McKay, the biblical book of revelation, chapter 13,

verses 16 through 18, warms against government use of

universal identifiers as a condition for engaging in

commerce or other vital activities such as voting.

Lane AREA RIO ANAE APARATO

eS SC A Ret rn

10a

McKay claims that the Tennessee statute violates the

Privileges and Immunities Clause of Article IV of the

Constitution. See U.S. CONST. art. IV, § 2, cl. 1. This

clause requires only that states give to citizens of every other

state the same privileges and immunities that their own

citizens enjoy. See Hague v. Committee for Indus. Org. , 307

U.S. 496, 511 (1939). Defendants did not discriminate

against McKay because everyone, whether a state citizen or

not, was required to comply with the voter registration laws

in order to vote in Tennessee.

McKay asserts he was deprived of his right to vote

without procedural due process of law, a violation of the

Fifth and Fourteenth Amendments, because he was

disqualified as a voter without having been properly

convicted of a crime. He also alleges a violation of the

Privileges and Immunities Clause of the Fourteenth

Amendment because his right to vote is unique to national

citizenship and bestowed by operation of Constitutional and

federal statutory law. See Shapiro v. Thompson, 394 U.S.

618, 667 (1969) (Harlan, J., dissenting); Slaughter-House

Cases, 83 U.S. (16 Wall) 36, 79-80 (1872). These claims fail

because they are based upon the flawed proposition that

Tennessee's social security number disclosure requirement

violates a federal statute or deprives him of his constitutional

rights of voting and free exercise of religion. See, e.g., Storer

v. French (In re Storer), 58 F.3d 1125, 1128 (6th Cir. 1995)

(indicating that the Privileges and Immunities Clause of the

Fourteenth Amendment affords no protection where

Congress has imposed or authorized the infringement).

E. Eleventh Amendment Immunity and Denial of

Certification to the Attorney General

lla

Eleventh Amendment permits prospective injunctive relief,

but not damage awards, for suits against individuals in their

official capacities under 42 U.S.C. § 1983. See Will v.

Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989).

However, as the United States points out on appeal as an

intervening party, the court erred in adopting the defendant

Tennessee officials’ position that the Eleventh Amendment

immunity barred McKay from gaining any relief for his claims

under federal law because prospective injunctive relief was

possible for him in theory. See Lawson v. Shelby County,

Tenn., 211 F.3d 331, 335 (6th Cir. 2000). Nonetheless, the

district court's error does not affect the outcome of this case

in light of our finding that all of McKay's claims are without

substantive merit.

McKay also complains he was prejudiced by the

district court's repeated refusal to certify his case to the

United States Attorney General under 28 U.S.C. § 2403(a).

Because of defendants’ attempted invocation of Eleventh

Amendment immunity against the Privacy Act claim,

certification was arguably not discretionary for this case and

should not have been delayed until the appellate stage of

litigation. See 28 U.S.C. § 2403(a); Jones v. City of

Lubbock, 727 F.2d 364, 372 (Sth Cir. 1984); Wallach v.

Lieberman, 366 F.2d 254, 257 (2d Cir. 1966). However, we

decline to hold that the district court was without jurisdiction

on the basis of a technical violation of the 28 U.S.C. § 2403

certification requirement because McKay's claims lack merit

on their face; therefore he has suffered no harm as a result of

the court's action. See Wallach, 366 F.2d at 258.°

* Contrary to McKay's assertions, the technical certification

violation occurred only with respect to the Privacy Act and

has no relevance to 42 U.S.C. § 1971(c), a provision in the

Civil Rights Act of 1964. Defendants asserted the

12a

Il.

We affirm the district court's grant of summary

judgment.

Eleventh Amendment defense only against enforcement of

the Privacy Act, and thus the constitutionality of the Civil

Rights Act was never "drawn in question" as required to

trigger 28 U.S.C. § 2403. The provision in 42 U.S.C. §

1971(c) does not help McKay because the provision merely

allows the Attorney General to “institute ... [a] proper

proceeding for preventive relief" instead of requiring

certification or permission for interyention. Compare 42

U.S.C. § 1971(c) with 28 U.S.C. § 2403(a). Thus, McKay

cannot evade his lack of standing for his Civil Rights Act

claim by speculating that the Attorney General would have

invoked 42 U.S.C. § 1971(c) on McKay's behalf if the case

had been properly brought to her attention through

certification under 28 U.S.C. § 2403.

13a

APPENDIX C

{ Entered 10/29/99 }

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

At CHATTANOOGA

MARTIN S. MCKAY,

Plaintiff,

BROOK THOMPSON, individually and as

Coordinator of Elections,

State of Tennessee;

RILEY C. DARNELL, Secretary of State,

State of Tennessee,

Defendants

No. 1:98-CV-354

Judge Curtis L. Collier

ORDER

Before the court is a Motion by Defendant Brook

Thompson, in his individual capacity and as Coordinator of

elections for the State of Tennessee, and Defendant Riley

Darnell, in his official capacity as Secretary of State for the

State of Tennessee, (collectively “Defendants”) for Summary

PO aND y PROE ae a See NOnDt Serene TOSCO SST COON Seta Sie ne EL ee ee TS Ek et Ta

l4a

Judgement (Court File No. 27). Defendants filed a brief in

support of their motion (Court File No. 29). Plaintiff Martin

S. McKay (“McKay”) did not file a response. McKay claims

a Tennessee law (Jenn. Code Ann. 2-2-116) requiring an

individual disclose and be identified by his or her Social

Security number in order to register to vote violates the

National Voter Registration Act of 1993 (“NVRA”), 42

U.S.C. §§ 1973 et seq., a provision of the Privacy Act of

1974, 5 U.S.C. § 552a, and the Civil Rights Act of 1964, 42

U.S.C. § 1971, as well as several provisions of the United ee

States Constitution.

After reviewing all of the evidence in the light most

favorable to Plaintiff, the Court concludes, as a matter of law,

McKay cannot prove his federal statutory or constitutional

claims at trial. Therefore, in accordance with the

accompanying memorandum, Defendants Motion for

Summary Judgement is GRANTED.

SO ORDERED.

ENTER:

/s/ CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

15a

[ Entered 10/29/99 }

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

At CHATTANOOGA

MARTIN S. MCKAY,

Plaintiff,

BROOK THOMPSON, individually and as

Coordinator of Elections,

State of Tennessee,

RILEY C. DARNELL, Secretary of State,

State of Tennessee,

Defendants

No. 1:98-CV-354

Judge Curtis L. Collier

a MEMORANDUM

Before the court is a Motion by Defendant Brook

Thompson, in his individual capacity and as Coordinator of

elections for the State of Tennessee, and Defendant Riley

Darnell, in his official capacity as Secretary of State for the

State of Tennessee, (collectively “Defendants”) for Summary

16a

Judgement (Court File No. 27). Defendants filed a brief in

support of their motion (Court File No. 29). Plaintiff Martin

S. McKay (“McKay”) did not file a response. McKay ciaims

a Tennessee law (Tenn. Code Ann. 2-2-116) requiring an

individual disclose and be identified by his or her Social

Security number in order to register to vote violates the

National Voter Registration Act of 1993 (“NVRA”), 42

U.S.C. §§ 1973 et seg., a provision of the Privacy Act of

1974, 5 U.S.C. § 552a, and the Civil Rights Act of 1964, 42

U.S.C. § 1971, as well as several provisions of the United

States Constitution. For the following reasons the Court will

GRANT Defendants’ motion..

L STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(c), the Court will render

summary judgement if there is no genuine issue as to any

material fact and the moving party is entitled to judgement as

a matter of law. The burden is on the moving party to

conclusively show no genuine issue of material fact exists,

Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6 Cir.

1994); Kentucky Div., Horsemen’s Benev. & Prot. Assoc.,

Inc. v. Turfway Park Racing Assoc., Inc., 20 F.3d 1406, 1411

(6" Cir. 1994), and the Court must view the facts and all

inferences drawn therefrom in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986); Oakland Gin Co.,

Inc. v. Marlow, 44 F.3d 426,429 (6" Cir. 1995); City

Management Corp. v. U.S. Chemical Co., Inc., 43 F.3d 244,

250 (6" Cir. 1994).

Once the moving party presents evidence sufficient to

support a motion under rule 56, the nonmoving party is not

entitled to a trial merely on the basis of allegations. The

nonmoving party may not rest on its pleadings, but must

17a

come forward with some significant probative evidence to

support its claim. Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986); Lansing Dairy, 39 F.3d at 1347; Horsemen’s

Benev., 20 F.3d at 1411; see also Guarino v.

Township Trustees, 980 F.2d 399, 404-406 (6* cir. 1992)

(holding courts do not have the responsibility to search sua

sponte the record for genuine issues of material fact). If the

nonmoving party fails to make a sufficient showing on an

essential element of its case with respect to which it has the

burden of proof, the moving party is entitled to summary

judgement. Celotex, 477 U.S. at 323.

been presented to make the issue of fact a proper jury

credibility of witnesses, or determine the truth of the matter.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);

60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435-36

(6" Cir. 1987). The standard for summary judgement mirrors

“whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson, 477

U.S. at 251-52. There must be some probative evidence from

If the Court concludes a fair minded jury could not return a

verdict in favor of the nonmoving party based on the evidence

presented, it may enter a summary judgement. /d.; Lansing

Dairy, 39 F.3d at 1347; Horsemen's Benev., 20 F.3d at 1411.

I. RELEVANT FACTS

The relevant facts are not in dispute. On June 21,

1998, Plaintiff McKay attempted to register to vote during a

voter registration drive at St. Stephen Catholic Church. After

18a

being advised by individuals representing the Hamilton

County Election Commission (“Election Commission”) his

SSN would be required in order to register, McKay declined

to complete the application. According to McKay, disclosing

his SSN in such a manner is contrary to his religious beliefs.’

On June 30, 1998, while obtaining a Tennessee driver’s

license, McKay again decided not to register to vote because

his SSN would have been required. Then, on July 29, 1998,

McKay went to the office of the Election Commission and

attempted to register to vote. However, McKay was again

informed a SSN would be required.

On August 10, 1998, McKay returned to the Election

Commission and spoke to the Administrator of Elections,

Carolyn Jackson. McKay informed Jackson he had prevailed

in litigation in Louisiana regarding that state’s collection of

SSN’s on voter registration applications. Jackson still would

not allow McKay to register to vote_unless he provided his

SSN. Nevertheless, on that same day, McKay completed a

voter registration application and submitted it to the Election

Commission. On September 3, 1998, McKay received an

“Application for Voter Registration Status Notification” from

the Election Commission which, in pertinent part, stated,

“Your application for voter registration form is temporarily

rejected [because] ... [y]ou failed to provide your social

security number” (emphasis in original).

' McKay contends “the language of Revelations [sic] [warns] of

government use of universal identifiers as a condition of

engaging in commerce or other vital activities such as

voting” (Court File No. 1, pp. 13-14, n. 7). McKay “views

the [SSN] as such a universal identifier” (/@). Apparently

McKay refers to the biblical Book of Revelation, Chapter

13, verses 16 through 138.

19a

Other significant events occurred with respect to

McKay’s attempts to register to vote. On August 17, 1998,

~ McKay sent a facsimile to Defendant Brook Thompson,

Coordinator of Elections for the State of Tennessee. In the

facsimile, McKay listed the efforts he had taken to register to

vote. McKay ended the correspondence with the following,

“As per 42 U.S.C. 1973gg-9(b)(2) a period of 20 days is

allotted to remedy this abridgement. If at that time, the

violation is not resolved, I will file a complaint in U.S.

-District Court seeking injunctive, declaratory and/or other

relief which may include, but is not limited to, monetary

damages for violation of my constitutional right without due

process.” On September 10, 1998, McKay’s attorney, Jes ‘

Beard, also spoke with Jackson, Thompson, and Beth Henry

Robinson, an attorney in Thompson’s office, regarding

McKay’s desire to register to vote. The position of the

Election Commission was unchanged.

On October 14, 1998, McKay filed suit in this Court

against Defendants Brook Thompson, individually and-as

Coordinator of Elections for the State of Tennessee; Riley

Darnell, as Secretary of State for the State of Tennessee;

Carolyn Jackson, individually and as Administrator of

Elections for Hamilton County, Tennessee; and Claude

Ramsey, as County Executive for Hamilton County,

Tennessee (Court File No. 1). Jackson and Ramsey were |

subsequently dismissed from this action. McKay also filed a

Motion for a Temporary Restraining Order (Court File No.

4). In the motion, McKay sought to enjoin the Defendants

from continuing to enforce Tenn. Code Ann. § 2-2-116 with

respect to requiring a SSN on voter registration applications.

McKay also sought an order requiring the Defendants to

elections. Believing there would be no irreparable injury in

the short period it would take to notify the Defendants, the

20a

Court denied McKay’s Motion for a Temporary Injunction.

However, the court set a hearing for October 29, 1998 to

determine the propriety of issuing a preliminary injunction.

The Court held such a hearing on October 29 and 30, 1998

and in an order filed November 2, 1998, denied McKay’s

Motion for a Preliminary Injunction. }

Iii. DISCUSSION

The motion the Court before reveals an unfortunate,

yet all too frequent, occurrence. When facing a potentially

dispositive motion, the non-movant chooses not to respond.

Not responding works a disservice upon American

jurisprudence: the adversary system serves the dual purposes

of defending against meritorious cases and discarding those

without merit. Courts disfavor reviewing a dispositive

motion without the benefit of the non-movant’s interpretation

of applicable case authority or indication of significant,

supporting facts, because rarely does a single perspective

capture enough of the substance of a case to support

comfortably a court’s decision.

Yet, undoubtedly, it is not a court’s responsibility to

argue a party’s position. The parties must litigate their cases.

The Eastern District of Tennessee hopes to emphasize the

importance of motion practice by signaling to parties that the

“[flailure to respond to a motion may be deemed a waiver of

any opposition to the relief sought.” Local Rules of the E.D.

of Tenn. 7.2. Courts hesitate to rely strictly on this type of

rule and have developed other ways to manage cases

efficiently and fairly. Invariably, though, the practical effect

of failing to respond to a dispositive motion undermines the

non-movant’s case and very often produces the same result.

2la

In Count One of his Complaint (Court File No. 1),

McKay alleges a violation of the NVRA 42 U.S.C. § 1973gg-

3(c)(2)(B). He argues this provision authorizes the state of

Tennessee to collect only “the ‘minimum amount of

information necessary’ to prevent duplicate voter registration

and to determine whether [an applicant] is eligible to vote.”

In response, Defendants argue the NVRA in conjunction with

related statutory schemes, specifically authorizes the state to

use a person’s SSN as a means of identifying voters. McKay

argues in Count Two that Tenn. Code Ann. § 2-2-116

violates the Privacy Act of 1974, specifically Public Law 93-

579, Section 7. The provision prevents state governments

from denying an individual any rights, benefits or privileges

provided by law simply because the individual refuses to

furnish his SSN. Defendants maintain however the Tennessee

statute falls within a “grandfather clause” exception to this

provision allowing a state to require disclosure of a SSN

provided the statutory scheme requiring disclosure was

enacted prior to January 1, 1975. Additionally, Defendants

raise an Eleventh Amendment sovereign immunity defense to

McKay’s Privacy Act claim.

In Count Three, McKay claims Tennessee’s

requirement of SSN disclosure also violates the Civil Rights

Act of 1964, 42 U.S.C. § 1971(a)(2)(B). This provision

forbids a state from denying:

[T]he right of any individual to vote in any election

because of an error or omission on any record or

paper relating to any application, registration, or

other act requisite to voting, if such error or omission

is not material in determining whether such -

individual is qualified under state law to vote in such

election.

22a

42 U.S.C. § 1971(a)(2)(B) (1999). The Defendants argue

this provision does not provide a private cause of action and

may only be enforced by the Attorney General. McKay’s

final claim is asserted pursuant to 42 U.S.C. § 1983 for

various constitutional violations, including unlawful

abridgement of his right to vote and unconstitutional

restrictions on his First Amendment right to free exercise of

religion.

For purposes of clarity, the Court in its opinion

addresses each of McKay’s statutory claims in the order in

which they are raised in his complaint. The discussion of

statutory claims is then followed by an analysis of Plaintiff's

constitutional challenges.

A. National Voting Rights Act, 42 U.S.C. §

1973gg-3(c)(2)(B)

In Count One of his Complaint, McKay asserts Tenn.

Code Ann. § 2-2-116, requiring an individual to reveal his or

her SSN as part of the voting registration process, violates

the NVRA. Specifically, McKay maintains 42 U.S.C. §

1973gg-3(c)(2)(B) permits the state to require only the

“minimum amount of information necessary’ to prevent

duplicate voter registration and to determine whether plaintiff

is eligible to vote,” and because an individual’s SSN is

inessential to those limited purposes, Tennessee may not

lawfully require it as a prerequisite to registration. In support

of this argument, McKay points to the State’s own practice

of allowing individuals who do not have a SSN to register

and maintains Tenn. Code Ann. § 2-2-102’ sets forth the sole

? “A citizen of the United States eighteen (18) years of age or older

who is a resident of this state is a qualified voter unless the

citizen is disqualified under the provisions of this title or

under a judgement of infamy pursuant to § 40-20-112.”

23a

requirements for eligibility as residence within the state and

attainment of the age of legal majority (18).

The federal statutory provision to which McKay

refers actually regulates the use of driver’s license

applications as simultaneous voter registration applications.

Assuming for the sake of argument this statute applies to

McKay’s situation, its exact language provides the State may

require only such information as is necessary to 1) “prevent

duplicate registrations,” and 2) “enable State election officials

to assess the eligibility of the applicant and to administer

voter registration and other parts of the election process.”

42 U.S.C. § 1973gg-3(c)(2)(B) (1999) (emphasis added).

Surely, preventing voter fraud is an essential part of the

election process.

McKay, in his Complaint, acknowledges, “Tennessee

uses [a SSN] only for the expressed purpose of determining if

an individual is attempting to commit fraud by trying to

9). Often there are several voters with the same name and, at

times, voters will have both the same name and the same birth

date. A SSN provides an unique identifier to assist in the

prevention of duplicate voter registration. While a few voters

may not have a SSN, the vast majority of registrants will. As

a result, SSN’s provide an efficient and reliable means of

identifying those applicants who may be trying to register

more than once, as well as those applicants who are ineligible

to vote because they have been convicted of a crime. This

holds true even though the State might have to make

occasional exceptions in the rare case an applicant does not

have a SSN.

Tenn. Code Ann. § 2-2-102 (1998).

24a

Based on this reasoning, the Court concludes a SSN

falls within the “minimum amount of information necessary

to, ... enable State election officials to assess the eligibility of

the applicant and to administer voter registration and other

parts of the election process.” 42 U.S.C. § 1973gg-

3(c\(2)(B). The Court therefore holds the facts on this

record, even when viewed in the light most favorable to

McKay, would not support a finding Jenn. Code Ann. § 2-2-

116 oversteps the authority granted by section 1973gg-

3(2)(B) of the NVRA.

B. Privacy Act of 1974, Public Law 93-579,

Section 7 i

McKay argues in Count Two of his Complaint that

Tennessee is prohibited by Public Law 93-579, Section 7, an

uncodified provision of the Privacy Act,’ from conditioning

the right to vote on the disclosure of one’s SSN. Plaintiff

relies on a Louisiana district-court case in which he litigated

the same issue, McKay v. Altobello, No. 96-3458 (E.D.La.

May 16, 1997) (slip op., Judge Livaudais), to support his

interpretation of this statute. After a review of that case, the

Court concludes the situation at hand is distinguishable.

The decision in A/tobello rested on Judge Livaudais’s

conclusion Louisiana failed to prove it fell within a statutory

exemption allowing a state to require disclosure of SSN’s

during voter registration as long as the State maintained “a

* Section 7(a)(1) can be found as an historical note to 5 U.S.C. §

552a, and provides: “It shall be unlawful for any Federal,

State, or local government agency to deny any individual

any right, benefit or privilege ... because of such

individual’s refusal to disclose his social security account

number.”

25a

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.” 5 U.S.C. § 7(a)(2) (1999). Tenn. Code Ann. §

2-2-116, enacted in 1972, specifically requires disclosure of

the registrant’s SSN‘ In Carter v. Dunn, No. 12507 (Tenn.

Ct. App. Dec. 3, 1976), the Tennessee Court of Appeals held

section 2-2-116 requires this information as a means of

identifying the registrant.

While McKay presented testimony at the preliminary

injunction hearing that, at times, here in Hamilton County,

different voter registration forms were utilized, and, on two

or three occasions, a SSN was excluded, this evidence does

not speak to whether Tennessee had a system of records in

existence and operating before January 1, 1975. The

uncontroverted record evidence proves Tennessee has

required disclosure of one’s SSN as a prerequisite for voter

registration and has used that information as a means of

identifying individual registrants since 1972. Section 2-2-116

therefore falls within the section 7(a)(2) exception for “a

system of records [requiring the disclosure of one’s SSN] 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.”

In addition to concluding section 2-2-116 is excepted

from section 7(a)(1) of the Privacy Act, the Court holds

McKay’s suit against all Defendants in their official capacities

is barred by the Eleventh Amendment. The eleventh

* Section 2-2-116 provides an example of a voter registration form.

The form contains a space for “Social Security number, if

any.” The statute further mandates the form “shall contain

all the i.formation required before being signed by the

registrant.” Tenn. Code. Ann. § 2-2-116.

26a

Amendment immunizes the states from all suits in federal

court brought by their own citizens or citizens of other states.

Seminole Tribe of Florida v. Florida, 517 U.S. 53, 54

(1996). “{SJuits against state officers or employees, in their ~_

official capacities, are suits against the state. Lawson v.

Tennessee, 7 F.Supp.2d 985, 988 (W.D.Tenn. 1998).

Accordingly, the Defendants, having been sued in their

official capacities, are treated as the state of Tennessee for

purposes of the Court’s Eleventh Amendment analysis. The

States’ sovereign immunity may only be abrogated through

consent of the State or an act of Congress. Jd. At 54-55. In

this case, Defendants have raised an Eleventh Amendment

immunity defense in response to McKay’s Privacy Act claim.

They have not consented to the Court’s exercise of

jurisdiction. As a result, Defendants in their official

capacities, are only susceptible to suit in this case if Congress

in passing the Privacy Act effectively abrogated the states’

Eleventh Amendment sovereign immunity.

“In order to determine whether Congress has

abrogated the States’ sovereign immunity, we ask two

questions: first, whether Congress has ‘unequivocally

expresse[d] its intent to abrogate the immunity,’ and second,

whether Congress has acted ‘pursuant to a valid exercise of

power.’” Id. At.55 (citations omitted). The Privacy Act does

not contain any clear congressional statement of intention to

abrogate the States’ Eleventh Amendment immunity. Section

7, which has never been codified, clearly applies to both state

and federal agencies. This provision, however, does not set

forth any clear remedy for violation of its mandates. Instead,

the courts have implied a cause of action for individuals who

have been injured by an agency’s failure to comply with

section 7. Greater Cleveland Welfare Rights Org. v. Butler,

462 F.Supp. 1313, 1319-20 (N.D. Ohio 1978).

27a

This implied right to sue fails to satisfy the “clear

legislative statement,” required in order to abridge the States’

Eleventh Amendment immunity. Even a “general

authorization for suit in federal court is not the kind of

unequivocal statutory language sufficient to abrogate the

Eleventh Amendment.” Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 246 (1985). Congress, in enacting

Section 7, did not even clearly authorize a cause of action in

federal court for violation of its provisions, and thus fell far

short of the standard set by the Supreme Court for

Congressional abrogation of the States’ Eleventh Amendment

sovereign immunity. The Eleventh Amendment, therefore,

precludes an action by McKay against Defendants in their

official capacities.

C. Civil Rights Act of 1964, 42 U.S.C. §

1971(a)(2)(B)

Count Three of McKay’s complaint alleges a violation

of 42 U.S.C. § 1971(a)(2)(B), a provision of the Civil Rights

Act of 1964. This statute provides:

(2) No person acting under color of law shall —

(B) deny the right of any individual to vote in

any election because of an error or omission on any |

record or paper relating to any application, |

registration, or other act requisite to voting, if such

error or omission is not material in determining <3 |

whether such individual is qualified to under State law |

to vote in such election; ...

McKay makes a persuasive argument his SSN is not

ial” to d laine his autlificating Oc endian end

therefore, his omission of that information cannot be grounds :

for refusing his registration. He argues the qualifications for |

oe ee Re ee ee ee ee ee ee ee

28a

voting are set forth at Tenn. Code Ann. § 2-2-102 and

basically require only that the voter is a resident who has

maintained the age of majority (18). SSN’s, McKay

maintains, are used only to determine whether a registrant is

trying to perpetrate a fraud on the polls and not whether the

person is in fact qualified to vote.

Regardless of the merits of his arguments, however,

McKay lacks standing to enforce this particular statutory

provision. The statutory language provides “the Attorney

General may institute for the United States, or in the name of

the United States, a civil action or other proceeding for

preventive relief," to remedy violation of the Act. Neither the

statute, nor case law interpreting it, however, gives a private

cause of action to individual citizens. See Willing v. Lake

Orion Community School Bd. Of Trustees, 924 F.Supp. 815,

820 (E.D. Mich. 1996) (“Section 1971 ... is enforceable by

the Attorney General, not by private citizens.”).

D. Constitutional Claims Pursuant to 42

U.S.C. § 1983

In addition to asserting the statutory claims discussed

above, McKay's complaint also requests, pursuant to 42

U.S.C. § 1983,° relief for several alleged constitutional

violations. As a preliminary matter the Court notes suits :

against individuals in the official capacities for damages are

the equivalent to suits against the State and are not

cognizable in this Court under section 1983. Will v.

Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989) —

(holding state officials, sued in their official capacities, are not

“persons” within meaning of section 1983 when sued for

5 “Section 1983 creates a federal cause of action for constitutional

violations.” Estes v. Morris, 142 F.3d 433 (table), 1998

WL 69009, at *2 (6* Cir. Feb. 11, 1998).

29a

damages). As a result, McKay cannot, on any set of facts,

maintain his section 1983 suit against Defendants in their

official capacities to the extent he is seeking damages for past

constitutional violations. Plaintiff's remaining section 1983

claims against Defendants for prospective injunctive relief and

against Defendant Brook Thompson individually for

injunctive relief and damages include: 1) unconstitutional

burdening of his right to vote, 2) deprivation of his right to

vote without due process of law, 3) violation of both

Privileges and Immunities Clauses and 4) unconstitutional

interference with his First Amendment right to free exercise

of religion. These claims are discussed below.

First, McKay claims his right to vote was

unconsitutionally conditioned on the disclosure of his SSN.

He relies on a Fourth Circuit opinion in which the Court held

the plaintiff's “right to vote [was] substantially burdened by

the public disclosure of his [SSN].” Greidinger v. Davis, 988

F.2d 1344,1354 (4* Cir. 1993). That case held “Virginia’s

voter registration scheme impose{d] a substantial burden on

[plaintiff's] fundamental right to vote only to the extent the

scheme permit[ted] the public disclosure of his SSN.” Jd. At

n.10. Because the Fourth Circuit held Virginia’s statutory

scheme substantially burdened an individual’s right to vote, it

applied a strict scrutiny analysis and required the state to

show the scheme was narrowly tailored to serve a compelling

state interest. Id. At 1352-54. The Court in Greidinger

specifically stated, however, “[I]f the scheme provided for

only the receipt and internal use of the SSN by Virginia, no

substantial burden would exist.” Jd.

McKay’s situation can be distinguished from that of

it routinely disclosed SSN’s along with other voter

. tion 1 fe ti to liti ] ti j lid j

308

made no effort to redact the SSN’s from voter registration

records made available to the public. During the preliminary

injunction hearing in this case, Defendants maintained

Tennessee has a policy of not disclosing voters’ SSN’s.

McKay maintains the possibility of public disclosure still

exists as a court could order the Election Commission to

that a court has ever done so. This argument is speculative at

best. Tenn. Code Ann. § 2-2-127 on which McKay relies

states, “[p]ermanent [voter] registration records as public

records shall be kept in a safe place by the commission, shall

be available for public inspection, and may not be removed

from the office of the commission except as required ...

The statute requires only that permanent records be kept and

made available to the public. It does not mandate inclusion of

information regarding voters’ SSN’s. This provision was

amended by Public Chapter No. 88, which went into effect on

April 12, 1999. As it is now written, section 2-2-127 requires

SSN’s to be redacted from “any voter registration records”

before making them available to the public.

Similarly, another statute upon which McKay relies,

Tenn. Code Ann. § 2-2-138, requires the commissioners of

elections to prepare lists of registered voters. These lists

“and any other voter registration information ... if compiled,”

(emphasis added) must then be made available for purchase.

While the Court concedes a list of voters’ SSN’s might

theoretically be compiled along with their names, birth dates,

addresses and other information, section 2-2-138 does not

require compilation or disclosure of this information. In light

of Tennessee’s policy of non-disclosure as well as the

amendmenits to section 2-2-127 prohibiting disclosure of

SSN’s, the purely speculative possibility of public disclosure

does not present the “substantial burden” that justified the

Fourth Circuit's ruling in Greidinger.

3la

The Court concludes Plaintiff has failed to present

evidence sufficient to support a conclusion Tennessee law

conditions a person’s right to vote on public disclosure of his

or her SSN. The statutory scheme provides “for only the

receipt and internal use” by Tennessee of a registered voter’s

SSN. Greidinger, 998 F.2d at 1354, n. 10. Asa result, the

disclosure required by section 2-2-116 does not constitute a

substantial burden requiring strict scrutiny analysis. See, id.,

at 1352-54. Even assuming the burden was still substantial

enough to justify strict scrutiny, this Court agrees with the

Fourth Circuit that a statutory scheme providing only for

internal receipt and use of voters’ SSN’s is narrowly tailored

to serve the compelling state interest of “identifying voter

duplication and tracking felons.” Id. At 1354,n. 11. Asa

result, the Court holds McKay cannot, as a matter of law,

prevail on a section 1983 action premised upon the argument

section 2-2-116 unconstitutionally burdens his right to vote.

In his second constitutional challenge, McKay asserts

he has been deprived of his right to vote without due process

of law, a violation of the Fifth and Fourteenth amendments.

He argues he has not been convicted of any crime for which

the right to vote may be denied. This argument is true,

however, the state may require him to be registered in order

to vote. Furthermore, as discussed above, the state of

Tennessee may also require McKay to disclose his SSN,

along with other information as a prerequisite to registration.

Like everyone else in this state, Plaintiff could have registered

to vote at any time had he chosen to comply with the

uniformly applied statutory requirements. Because there is

nothing unconstitutional about Tennessee’s voter registration

scheme, and because McKay’s right to vote was denied

pursuant to this validly enacted scheme, his due process

challenge to the State’s action fails as a matter of law.

32a

McKay also asserts section 2-2-116 violates the

Privileges and Imunities Clause of Article 4, Section 2 and the

Fourteenth Amendment. The Privileges and Imunities Clause

of Article 4, Section 2 requires only that-states-give to every

citizen of every other state the same privileges and immunities

that their own citizens enjoy. Hague v. Committee for Indus.

Org., 307 U.S. 496, 511 (1939). McKay was treated as all

Tennessee residents are treated. Defendants did not

discriminate against him in any way because everyone,

whether a citizen of the state or not, must comply with the

Tennessee voter registration laws in order to vote in

Tennessee. This includes providing a SSN as required by

section 2-2-116. Because section 2-2-116 applies to

everyone, regardless of his or her state citizenship, it does not

violate the Privileges and Immunities Clause of Article 4,

Section 2.

The Privileges and Immunities Clause of the

Fourteenth Amendment, on the other hand, protects only

those rights unique to national citizenship. Shapiro v.

Thompson, 394 U.S. 618, 667 (1969); see also Slaughter-

House Cases, 83 U.S. (16 Wall) 36, 79-80 (1873). This

provision in essence prevents the states from abridging the

rights given to all U.S. citizens by operation of Constitutional

and federal law. These rights include the right to vote in

federal elections. Slaughter-House Cases, 83 U.S. (16 Wall)

at 79. The Court presumes this is the right McKay claims is

abridged by section 2-2-116. Section 2-2-116 does place a

limitation on an individual’s right to vote in federal elections.

“However, the Supreme Court has indicated that the

Privileges and Immunities Ciause of the Fourteenth

Amendment affords no protection where Congress has

imposed or authorized the infringement.” Storer v. French,

58 F.3d 1125, 1128 (6* Cir. 1995).

33a

In this case, Congress, in the Privacy Act of 1974,

specifically authorizes the states to require disclosure of

SSN’s as a prerequisite to voter registration, provided the

statutory scheme requiring disclosure falls within the

exemption provision of section 7(a)(2). As discussed in part

Ill. B. above, section 2-2-116 satisfies all of the 7(a)(2)

exemption conditions. In this case, therefore, any

abridgement of McKay’s right to vote has been authorized by

Congress by way of section 7(a)(2) of the Privacy Act. Asa

result, under the rule set forth in Storer, section 2-2-116 does

not violate the Privileges and Immunities Clause of the

Fourteenth Amendnient.

In his final constitutional challenge, McKay claims

section 2-2-116 unconstitutionally infringes his First

Amendment right to free exercise of religion. The United

States Court of Appeals for the Sixth Circuit follows the

standard set forth in Employment Division v. Smith, 494 U.S.

872 (1990), when evaluating free exercise challenges

Kissinger v. Board of Trustees, 5 F.3d 177, 179 wy Cir,

- 1993). This standard requires the Court to uphold a state law

that is rationally related to a legitimate state purpose,

provided the law is: 1) generally applicable, 2) not aimed at

particular religious practices, and 3) free of a system of

particularized exemptions. Smith, 494 U.S. at 877-78. After

evaluating section 2-2-116 in light of these criteria, the court

concludes the law does not unconstitutionally infringe

Plaintiff's right to vote.

First, section 2-2-116 is generally applicable. All

potential voters must disclose their SSN’s, if they have one,

in order to register. On its face, the law appears to be

neutral, and McKay has not presented any evidence it is

aimed at a particular religious group or practice. Nor does

34a

the law contain a system of particularized exemptions.

McKay argues section 2-2-116 exempts those who do not

have SSN’s, however, this is not a particularized exemption.

Tennessee requires everyone who has a SSN to disclose it.

The State does not distinguish between similarly situated

individuals, allowing some to claim an exemption from the

law’s application, while others may not. Finally, the

disclosure requirement is, at the very least, rationally related

to the legitimate state interests of preventing voter fraud and

identifying felons ineligible to vote. Because section 2-2-116

satisfies the criteria set forth in Smith, it does not

unconstitutionally burden McKay’s First Amendment right to

free exercise of religion by requiring him to disclose his SSN

as a prerequisite to voting.

In his Complaint, McKay offers two arguments

against application of the Smith standard in this case. First,

he argues Smith applies only in those cases where the

religious conduct is prohibited by law. Cases in this circuit,

however, have applied Smith in situations involving

affirmative conduct, required by the State but prohibited by

an individual’s religious beliefs. In Kissinger, the court used

the Smith criteria to evaluate Ohio State University’s

requirement all students complete a course in “Operative

Practice” in order to graduate from the College of Veterinary

Medicine. Kissinger, 5 F.3d at 178-179. Like section 2-2-

116, the curriculum addressed in Kissinger required an

individual to engage in affirmative conduct in order to be

entitled to a benefit from the state. In spite of this possible

grounds for distinction, the Sixth Circuit still held Smith

applicable. This Court is therefore compelled to apply the

Smith criteria in this case.

McKay’s second argument against application of

Smith, is similarly unpersuasive. In Smith, the United States

35a

Supreme Court implied the traditional strict scrutiny standard

might still be applicable in those cases involving a hybrid of

rights where a Free Exercise claim was coupled with a claim

the contested state law or policy infringed another

fundamental right. Smith, 494 U.S. at 881. McKay argues,

under this rationale, strict scrutiny should be applied in this

case because section 2-2-116 infringes his right to vote as

well as his freedom of religion. The Sixth Circuit

unequivocally rejected this reasoning in Kissinger. “[A]t least

until the Supreme Court holds that legal standards under the

Free Exercise Clause vary depending on whether other

constitutional rights are implicated, we will not use a stricter

legal standard than that used in Smith to evaluate generally

applicable, exceptionless state regulations under the Free

Exercise Clause.” Kissinger, 5 F.3d at 180.

As discussed above in this section, Tenn. Code Ann.

2-2-116 does not unconstitutionally burden or infringe upon

McKay’s right to vote. Even assuming, for the sake of

argument, that McKay’s right to vote were somehow

implicated along with his F:ee Exercise rights, a strict

scrutiny analysis would still be rendered inappropriate by the

Sixth Circuit’s holding in Kissinger. When evaluating

generally applicable, exceptionless state regulations under the

Free Exercise Clause, the Court is required by Sixth Circuit

precedent to apply the standard set forth in Smith. An

application of this standard leads to the conclusion Tenn.

Code Ann. § 2-2-116 does not unconstitutionally infringe

McKay’s First Amendment right to free exercise of religion.

IV. CONCLUSION

i Vi hat ese ts Uae Ma tate

favorable to Plaintiff, the court concludes, as a matter of law,

McKay cannot prove his federal statutory or constitutional

a 36a

claims at trial. Therefore, for the foregoing reasons,

Defendants Motion for Summary Judgement should be

GRANTED. An order shall enter.

/s/ CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

37a

APPENDIX E

{ Entered 02/26/99 ]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

At CHATTANOOGA

MARTIN S. MCKAY,

Plaintiff

Vv.

BROOK THOMPSON, individually and as

Coordinator of Elections,

State of Tennessee,

RILEY C. DARNELE, Secretary of State,

State of Tennessee,

Defendant

No. 1:98-CV-354

Collier / Powers

SCHEDULING ORDER

1, Introduction: Pursuant to Fed. R. Civ. P. 16(b) a

scheduling conference was held in this cause on February

19, 1999. Present representing the plaintiff were attorney Jes

38a

2. Jurisdiction: In this case, the subject matter

jurisdiction of the Court has been invoked pursuant to 28 _

U.S.C. § 1331 and is in dispute.

3. Consent To Magistrate Judge: The parties do not

consent that all proceedings in this case may be conducted by

a United States Magistrate Judge in accordance with 28

U.S.C. § 636(c).

(2) Fed R Civ P 26(f) Meeting: The parties

will hold a discovery planning meeting by telephone as

required by Rule 26(f) on March 18, 1999 at 11:00 a.m.

Mr. Marett will initiate the call.

) . Discovery Plan: At the Rule 26(f) meeting

the parties shall develop a discovery plan and file it with the

Court within ten (10) days after said meeting. This discovery

plan shall conform to the provisions of Fed. R. Civ. P. 26(f).

testimony in accordance with Fed. R. Civ. P. 26(a)(2) shall be

made by all parties on or before June 1, 1999.

(d) All Discovery: All discovery, including the

taking of depositions “for evidence” shall be completed by

July 12, 1999.

6. Qther Scheduling Matters:

39a

(2) Dispositive Motions: All dispositive motions

under Fed. R. Civ. P. 12 and all motions for summary

judgement pursuant to Fed. R. Civ. P. 56 shall be filed as

soon as possible, but no later than August 31, 1999. The

failure to timely file such motions will be grounds to

summarily deny them.

SO ORDERED.

ENTER: ae

/s/ CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

APPENDIX F

[ Entered 11/24/98 ]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

At CHATTANOOGA

MARTIN S. MCKAY,

Plaintiff,

BROOK THOMPSON, individually and as

Coordinator of Elections,

State of Tennessee,

RILEY C. DARNELL, Secretary of State,

State of Tennessee,

CAROLYN JACKSON, individually and as

Administrator of Elections, —

Hamilton County, Tennessee,

CLAUDE RAMSEY, County Executive,

Hamilton County, Tennessee,

Defendants

No. 1:98-CV-354

Judge Curtis L. Collier

ORDER

Before the court is Plaintiff Martin S. McKay’s

Motion To Amend (Court File No. 10). McKay seeks to

4la

amend his Complaint to include a request for injunctive relief

under 42 U.S.C. § 1983. Rule 15(a) of the Federal Rules of

Civil Procedure states, in pertinent part, “A party may amend

the party’s pleading once as a matter of course at any time

before a responsive pleading is served.” As yet, there has not

been a response to McKay’s Complaint. Accordingly,

McKay’s Motion To Amend is GRANTED. McKay is

ORDERED to file an amended complaint within fifteen (15)

days of the entry of this Order.

SO ORDERED.

ENTER:

/s/ CURTIS L. COLLIER

UNITED STATES DISTRICT JUDGE

42a

APPENDIX G

Intervention By United States (28 U.S.C. § 2403)

(a) In any action, suit or proceeding in a court of the

United States to which the United States or any agency,

officer, or employee thereof is not a party, wherein the

constitutionality of any act of Congress affecting the public

interest is drawn in question, the court shall certify such fact

to the Attorney General, and shall permit the United States to

intervene for presentation of evidence, if evidence is

otherwise admissible in the case, and for argument on the

question of constitutionality. The United States shall, subject

to the applicable provisions of law, have all the rights of a

party and be subject to all liabilities of a party as to court

costs to the extent necessary for a proper presentation of the

facts and law relating to the question of constitutionality.

Civil Rights Act of 1964 (42 U.S.C. § 1971)

(a)(2) No person acting under color of law shall —

(B) deny the right of any individual to vote in

any election because of an error or omission on any

record or paper relating to any application,

registration, or other act requisite to voting, if such

error or omission is not material in determining

whether such individual is qualified to under State law

to vote in such election; ...

reasonable grounds to believe that any person is

about to engage in any act or practice which would

deprive any other person of any right or privilege

43a

secured by subsection (a) or (b) of this section, the

Attorney General may 1

or in the name of the United States, a civil action or

other proper proceeding for preventive relief,

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injunction, restraining order, or other order ..

Privacy Act of 1974, Section 7 (P.L. 93-579 § 7)

(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 [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 a 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.

44a

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National Voter Registration Act of 1993 — Simultaneous

Application For Voter Registration And Driver

License (42 U.S.C. § 1973gg-3)

(a)(1) Each State motor vehicle driver’s license

application (including any renewal application)

submitted to the appropriate State motor vehicle

(c)(2)(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;

National Voter Registration Act of 1993 — Contents Of Mail

Voter Registration Form (42U.S.C. § 1973gg-7)

(b)(1) may require only such identifying information

(including the signature of the applicant) and other

information (including data relating to previous

registration by the applicant), as is necessary to enable

the appropriate State election official to assess the

eligibility of the applicant and to.administer voter

registration and other parts of the election process;

45a

Qualified Voter (TENN. CODE ANN. § 2-2-102)

A citizen of the United States eighteen (18) years of

age or older who is a resident of this state is a qualified voter

unless the citizen is disqualified under the provisions of this

title or under a judgement of infamy pursuant to § 40-20-112.

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Registration Form (TENN. CODE ANN. § 2-2-116)

substantially as follows, shall contain all the information

required before being signed by the registrant, and shall be

witnessed as indicated on the form.

Item 5. Social Security Number, if any

Permanent Registration Records Open To Inspection

(TENN. CODE ANN. § 2-2-127)

Prior To Modificati

Permanent registration records as public records shall

be kept in a safe place by the commission, shall be available

for public inspection, and may not be removed from the office

of the commission except as required for the performance of

duties under this title or in compliance with court orders.

Modification Effective April 12, 1999

(a) Permanent registration records as public records

shall be kept in a safe place by the commission, shall be

available for public inspection, and may not be removed from

the office of the commission except as required for the

46a

performance of duties under this title or in compliance with

court orders; provided that a registrar shall make a reasonable

effort to redact a person’s social security number from a

record before such record is made available to any person

other than the holder of the number if such record is stored in

a computer readable format on April 12, 1999. When such

records are first stored in a computer readable format or

when changes are made to any computer program that stores

or accesses records, a registrar shall redact a person’s social

security number from a record before such record is made

available to any person other than the holder of the number.

The coordinator of elections shall also redact the social

security number before making any voter registration records

available to the public.

Voter Registration Lists — Purchase By Citizens

(TENN. CODE ANN. § 2-2-138)

(a) In counties of this state having a population in

excess of one hundred eighty thousand according to the

United States census of 1970 or any subsequent United

States census, or in any computerized county, it is the duty of

the commissioners of elections to prepare or cause to be

prepared each month a listing, by voting precinct, of all

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preceding month.

(b) Such list, and any other voter registration

information such as voter history, if compiled, shall be

available for purchase for a price not to exceed the cost of

production ...

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APPENDIX H

Stipulation By Parties That Plaintiff Attempted To

Hearing For Preliminary Injunction (TR 69,

lines 23-25; TR 70, lines 1-9)

THE COURT: Call your next witness.

MR. BEARD: _ Your Honor, it’s my understanding

that the agreement on — or along with the

submission of Exhibit 30 is the understanding

that, in fact, Mr. McKay did fill that out,

received it, submitted it, returned it, and that

that was the application which is headed up at

the top “Mail-In Application.” As long

as all that is agreed to, then I don’t have

anything further, Your Honor.

MS. KLEINFELTER: We agree to it. We all agree to that,

Your Honor.

THE COURT: Okay. Apparently there is a

stipulation.

: | Counsel For Plaintiff

Ms. Kleinfelter Counsel For State Defendants

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.