### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 11, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

No. 02-13214

D. C. Docket No. 00-02820-CV-JEC-1 DEBORAH SCHWIER, THEODORE SCHWIER, et al., Plaintiffs-Appe llants,

versus CATHY COX, in her official capacity as Secretary of State of Georgia, Defendant-Appellee, UNITED STATES OF AMERICA, Intervenor.

Appeal from the United States District Court for the Northern D

istrict of Georgia (August 11, 2003)2

Before DUBINA and BLACK, Circuit Judges, and RYSK AMP*, District Judge. DUBINA, Circuit Judge: Deborah Schwier , Theodo re Schwi er, and M ichael Craig (c ollect ively, “Appellants”) filed suit in federal district court against Cathy Cox (“Cox”), in her official capacit

y as Secreta

ry of the State

of Georgia, see

king declaratory

and injunctiv e relief und er 42 U.S.C. § 1 983. The App ellants cl aimed that Geo rgia’s voter registration p

rocedure and Vote

r Registration For

m violated sect

ion 7 of the Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1896, 2194, 5 U.S.C. 552a (note), and section 1971 of the Voting Right s Act of 1870, 42 U.S.C. § 197 1(a)(2)(B). The district court

found that Appellant

s could not bring a priva

te right of action under § 1983 for violati

ons of section 7 of the P

rivacy Act or

section 1971 of the Voting Rights Act. For the reasons that follow, we reverse. I. BACKGROUND Prior to the general election of November, 2000, Deborah and Theodore Schwier (“the Schwiers”) attempted t o register to vote in Walton County, Georgia. The Schwiers subm

itted their registr

ation applications w

ithout supplying thei

r social security

numbers (“ ssns”). Subsequentl y, Walton Co

unty officials n

otified

__________________________ *Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of Florida, sitting by designation.1 Craig joined the suit later.

2 The injunction required the Schwiers to file their ssns under seal with the court and also with election officials, who would hold the numbers without entering them into the system. If the Schwiers prevailed on

the merits, the ele

ction officials w

ould be required

to destroy their record of the Schwiers’ ssns, but if Cox preva iled, the election officials would be allowed to enter the Schwiers’ ssns into

the system. 3 the Schwiers that, unless they supplied officials with their ssns, their voter registrations would

be rejected. M

ichael Craig (“

Craig”) was unabl

e to vote in Gwinnett County, Georgia be cause he also refused to supply officials wit h his ssn. The Schwiers 1 sought and won a preli minary inj unction allowing them to vote in the election without providing their ssns in the customary manner. 2 Discovery focused primarily on how Georgia implem ented its voter registration statute, O.C.G.A. § 21-2-219. After discovery, Appellants and Cox filed cross motions for summ ary judgment. T

he district court gr

anted Cox’s m

otion for summ

ary judgm

ent on both the Privacy A

ct and Voting Rights A

ct claims. A

ppellants then perfe

cted this appeal. Appellants claim

that Georgia’s

requirement t

hat they provide t

heir ssns in order to vote and Ge

orgia’s Voter R

egistration Form

(“the Form

”) violate the Privacy Act.

Appellants argue t

hat section 7 of the P

rivacy Act contains no4

remedial scheme and that Appellants may sue Cox for violations of section 7 via § 1983. Cox argues that the Appellants do not have a private right of action under the Privacy A

ct. Alternative

ly, Cox argues that Georgia’s voting statute is protected from the prohibitions of the Privacy Act by the Act’s “ grandfather” provision. Cox furthe

r argues that if A

ppellants may

sue state officials for violations of the Privacy Act via § 1983, then passage of the Privacy Act exceeded Congress’s author

ity, and the Pr

ivacy Act is unc

onstitutional. Because Cox argues that if section 7 of the Privacy Act is enforceable via a private right of ac

tion brought under § 1983, then section 7 of the P

rivacy Act is unconstitutional, the

United States (“

the Governmen

t”) intervened as a

matter of right pursuant to 28 U. S.C. § 2403(a) a nd Rule 44 of the Fede

ral Rules of Appellate Proce

dure. The Gover

nment argues tha

t the Privacy A

ct may be enforced under § 1983 and that Congress did n ot exceed its authori

ty in passing the Privacy Act. Appellants also cont

end that Georgia’ s requirement that voters supply

their ssns in order to vote violates 42 U.S.C.§ 1971(a)(2)(B) of the Voting Rights Ac

t, which prohibits state s from disqualif ying potential vote

rs based on their fa

ilure to provide information n ot relevant to determini ng their eligibil ity to vote.5

Appellants argue th

at since its enactm

ent in 1871, § 1983 has been available to private citizens to enforce the Voting Rights Act. They contend that when Congress gave the Attorney General the authority to enforce the Voting Rights Act through the enactm

ent of the Civil Right

s Act of 1957, Congr

ess added a means of enforcing the Votin

g Rights Act but did not t ake away the p

reviously existin

g remedy of

private suits via § 1983

. Cox argues that section 1971 of the Voting Rights Act may be enforced only by the A

ttorney Gener

al. In the altern

ative, Cox argues t

hat, even if § 1971 may be enf

orced by a priva

te right of action unde

r § 1983, Appellants ’ claim is moot b ecaus e Geor gia ha s modi fied i ts Vot er Reg istra tion Form. II. ISSUES 1. Whether the district court erred in holding that section 7 of the Privacy Act does not allow f

or enforceme

nt by a private r

ight of action against

state agencies by a sui

t under § 1983. 2. If the Privac

y Act allows f

or a private right of

action, whether

Congress exceeded its authority in enacting the Privacy Act, rendering the Privacy Ac t unconstitutional. 3. Whether Ge

orgia qualifies for

the “grandfat

her” exception of se

ction 7(a)(2)(B) of t

he Privacy Ac

t.6

4. Whether Georgia’s Voter Registration Form com plies with the notice requirements of section 7(b) of th e Privacy Ac

t. 5. Whether the d

istrict court err

ed in holding that secti

on 1971 of the Voting Rights Act may

not be enforced by

a private right of a

ction under § 1983. 6. Whether the d

isclosure of a person’s ssn is “m aterial” in deter

mining whether he or she i s qualified to vote unde r Georgia law f

or purposes of sectio

n 1971 of the Voting Right s Act. III. STANDARD OF REVIEW This court review

s “the district court's grant of sum mary jud gment de novo. Summary judgment is app

ropriate where t

here is no genuine issue

as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Hale v. Tallapoosa C

ounty , 50 F.3d 1579, 1581 ( 11 th Cir. 1995) (internal quotations and citation omitted). IV. DISCUSSION A. Whether the district court erred in holding that section 7 of the Privacy Act does not allow f

or enforceme

nt by a private r

ight of action against

state agencies by a sui

t under § 1983

. The Privacy A

ct of 1974 contains only

two substantive sect

ions, section 3 and section 7. See 88 Stat. at 2177-94.Section 3 of the Pr ivacy Act applies only3 The entire text of s ection 7 of the Priv

acy Act sta

tes: (a)(1) It shall be unlawful for any Federal, State

or local gover

nment agency

to deny to any individual any right, benefit, or privilege provided by law bec aus e of such ind ividual'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 disclosur

e of a social sec

urity number to any Federal, State, or local agenc y main taining a system of records in existence and operating befor e January 1, 1975, if such disclosure was required under statute or regulation adopted prior to su

ch date to verify

the identity o

f an individual. (b) Any Fe

deral, State, or l

ocal governme

nt agency which requests

anindividual to disclose his social security accou nt num ber shall inform that individual whether that disclosure is mandatory

or voluntary

, by what sta

tutory or oth

er authority

such number is solicited, and wha

t uses will be made o

f it. 88 Stat. at 2194.

7 to federal agencies and, among othe r things, delineate s an individual’s ri ght to records of feder

al agencies and righ

t to be protected fr

om disclosure of

records by federal agencies. Section 3 contains a comprehensive remedial schem e which includes the right to br

ing a civil action aga

inst a federal age

ncy; however,

the remedial sche

me of section 3 s

tates that it applies only

to section 3. Section 7 of the Priva cy Act bars federal, state, or local agencies f rom denying “any

individual any rig

ht, benefit, or pr

ivilege provided by

law because of such individual’s re

fusal to disclose his social security a ccount number”

to the agency. 3 Secti on 7 o f the P rivac y Act do es not conta in it s own r emedia l sche me8

and is explicitly excluded from t he remedial sc

heme of sectio

n 3; thus, section 7 has no remedial scheme. 1. The district court’s finding that section 7 of the Privacy Act is a “dead letter .” Within the Privacy Act itself, Congress stated that section 3 was an amendment to Title 5, which gove rns federal administrati ve agencies. See 88 Stat. at 2178. Thus, sec

tion 3 added a new sec

tion to Title V and w

as codified as 5 U.S.C. § 552a. Id. at 2177

. Because Congress m ade no such statem

ent about section 7 of the Privacy Act, the revisor of the U.S. Code placed section 7 in an “Historical and Statutor y” note following 5 U.S.C. § 55 2a. See 5 U.S.C. § 552a (note). The district court mistakenly placed great weight on this fact. The district court noted that, although section 7 was part of the Privacy Act that “was passed into law as Public L

aw 93-579,” the fa

ct that section 7 “

was never codifie

d, and appears only in the ‘Historical and Statutory Notes’ section of the United States Code,” made section 7 a mer e “historical f

ootnote to the Privac

y Act of 1974 [which] Congress has never reflected any intention of [codifying].” T he district court apparently believ ed that public laws h ave less “weight” as laws tha n laws which have been codi

fied. The rever

se is true: “the

Code cannot prevail

over the Statutes at Large when the two are inconsistent.” United States v. W elden, 3779

U.S. 95, 98 n.4, 84 S. Ct. 1082, 1085 n.4, 12 L. Ed. 2d 152 (1964) (internal quotations omitted ). The district court also stated that section 7 was deleted from the Privacy Act by the Senate Government Operations Comm ittee “before the law was codified into the official code.” The distric t court quotes Senate

Report 1183, but the q

uote demonstrates th

at the provision that w

as deleted from

the Act pertained

only to a business entity’s refusal to enter into a “business transaction or commerc ial relationship with an

individual because of

[his] refusal to

disclose or furnish [

his social security] number.” S. R EP . N O . 93-1183 (1974), reprinted in 1974 U.S.C.C.A .N. 6916, 6943. T hus, the court’s c

onclusion that section 7

of the Privacy Act had been deleted was error. The best proof of this is section 7's presence in the Statu tes at Large. See 88 Stat. at 2194; see also Welden, 377 U.S. at 98 n.4, 84 S. Ct. at 1085 n.4. We therefore conclude that the district court erred in finding that s ection 7 of the Privac y Act was “a dead letter.” 2. The district court ’s finding that the r emedial schem

e of section 3 forecloses a priva

te action for violat

ions of section 7

. In finding that sectio

n 7 does not provide for a private right of a ction, the district court reli

ed on the Ninth Circ

uit’s holding in Dittman v. Califo rnia , 191 F.3d 1020 (9 th Cir. 1999), that “‘[t]he civil remedy provisions of the statute do not10

apply against private i ndividuals, state agencies , private entities, or state and local officials.’”

191 F.3d at 1026 (quoti ng Unt v. Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir. 1985) (first emphasis added)). In Dittman , the Ninth Circui t relied on two case s which involved only section 3 of the Priv

acy Act. T

hus, when the Ninth

Circuit quoted Unt v. Aerospace Corp. above, the phrase, “the statute, ” referred to se ction 3 of the Privacy Act, not

section 7. Unt’s holding had no relevance to the facts of Dittman or to the present ca

se because in Unt, the plaintiff was trying to sue a nongovernment enti

ty for violations of section 3 of the Pr ivacy Act, w

hich pertains only to federal agencies

. Unt, 765 F.2d at 1447. In addition, Dittman relied on the Seven th Circuit’s holdin

g in Polchowski v. Gorris , 714 F.2d 749 (7 th Cir. 1983). Polchowski also had no relevanc e to the facts of Dittman because, again, Polchowski involved enforcem ent of section 3 of the Privacy A

ct, rather than se

ction 7. In Polchowski , the plaintiff sought to sue a state agency und

er §1983 for relea

sing criminal in

formation about

him. 714 F.2d at 750. The relea

se of the inform

ation would have viola

ted section 3 of the Privacy Act, but section 3 applies only to federal agencies. Thus, the court reasoned, “Congress, by limiting the scope [of section 3 to federal agencies] has provided unequivocal a

nd persuasive evidence that it intended to f oreclose private11

enforcement of [section 3] against state or local officials who make unwarr anted disclosures of statistical information.” Id . at 752 (internal quotations omitted). In other words, the r

ights created by

section 3 of the Priv

acy Act do not r

estrict the activities of state agencies. In St. Michael’s Conv

alescent Hospital. v. California, 643 F.2d 1369, 1373 (9 th Cir. 1981), on w

hich Dittman also relied, the pl aintiffs sought to sue a

state agency under se

ction 3 of the Privac

y Act. As in Polchowski , the plaintiffs sou ght to sue a stateagency for viol ating a section of the

Privacy Act

which applies only to federal agencies. Thus, the Nint h Circuit dismissed pl aintiffs’ claims. St. Michael’s , 643 F.2d at 1372. In summary, Unt, Polchowski, and St. Michael’s , all relied upon by the Ninth Circuit in Dittman , were d isti ngui shab le fro m Dittman and did not support the Ninth Circuit’s ho lding in that case. Dittman failed to recogniz e that the remedial sche

me of section 3 a

pplies only to sect

ion 3 and has no bearing o n section 7. Thus, t

he remedial sc

heme of sectio

n 3 provides no basis for concluding that Congre ss intended to preclude private reme

dies under § 1983 for violations of section 7.

Therefore, w

e conclude that the di strict court erre d in finding that the rem

edial scheme o f section 3 of the Pr ivacy Act pre

cluded a private right of ac

tion via § 1983 for viola

tions of section 7 of the

Privacy Act

.12

3. The district court ’s finding that the T ax Reform Ac

t of 1976 limited t

he scope of the Privacy Act

. The district court also found that the Tax Reform Act of 1976, which amended the Soc

ial Security A

ct, authorized the

states to use ssns for

voting. The court’s finding w

as due in large part

to its reliance on

Stoianoff v. Commissioner of Motor Vehicles , 107 F. Supp. 2d 439, 44 2 (S.D.N.Y. 2000), aff’d , 12 Fed. Appx. 33 (2nd Cir. 200 1). However, Stoianoff and the district cour

t mistakenly relied on Comm

ittee language whic

h was much broa

der than the very

narrow language of the fina l version of the Tax Refo rm Act passed into law. See Stoianoff, 107 F. Supp. at 442.The final version a uthorizes States to use ssns only “in the adm

inistration of any

tax, general public

assistance, drive

r’s license, or motor vehicle registration.” 42 U.S.C. § 405(c)(2)(C)(i) (2003). Thus, the district court erred in conc

luding that the scope of

the Privacy A

ct had been limi

ted by the Tax Reform A

ct. 4. The Privacy A

ct and §1983

. In Gonzaga University v. Doe, 536 U.S. 273, 283- 84, 122 S. Ct. 2268, 2276, 153 L. Ed. 2d 309 (2002), the Supreme Court noted that the inquiry into whether a statute contains an im

plied right of action and the inquiry int o whether the statut

e creates rights enf

orceable under § 1983 “overlap” in th at both inquiries m

ust begin13

with the question of w

hether “Congre ss intended to create a fe deral right .” 536 U.S. at 283, 122 S. Ct. at 2275. Here, we ask only w hether the Privacy Act creates rights enforceable

under § 1983 because th is is the issue Appell

ants raise on appeal. Section 1983 provides a private right of action whenever an individual has been deprived of any

constitutional or stat

utory federal

right under color of state law. See 42 U.S.C. § 1983; see also Maine v. Thiboutot , 448 U.S. 1, 4,

100 S. Ct. 2502, 2504, 65 L. E

d. 2d 555 (1980). In Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997), the Supreme Court noted that they had “traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right”: First, Congress m

ust have intended that the provision in question benefit the plaintif

f. Second, the pl

aintiff must de

monstrate that

the right assertedly

protected by the

statute is not so vague a

nd amorphous that its enfo rcement would strain judici al competence. Third, the statute

must unambi

guously impose

a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couc

hed in mandatory

, rather than pre

catory, term

s.4 In Blessing , the Supreme Court found that Title

IV-D could no

t be enforced by

individuals under § 1983. The Court noted that Titl e IV-D’s “r

equirement that a

State operate its child support program in ‘substantial compliance’ with Title IV-D” was a “yardstick for the Secretary to measure the systemwi

de performa

nce of a State’s Title IV-D program” and thus did not confer a r ight or

“ individual

entitlement to services” on “individual children and custodial parents.” 520 U.S. at 343, 117 S. Ct. at 1361. 14 520 U.S. at 340-41, 117 S. Ct. at 1359 (internal citations and quotations omitted). 4 However, in Gonzaga , the Court pointed ou t that some cour

ts had misunderst

ood the first factor of Blessing to permit a conf

erred “ benefit

” rather than “

anything short of an unamb

iguously conferr

ed right to support a cause of action brought under § 1983[,] .. . [which] pr ovides a remedy

only for the depr

ivation of ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United States.” 536 U.S. at 282-8 3, 122 S. Ct. at 2275 (emphasi s added). Thus, before we analyze the application of the Blessing factors to the Privacy Act,

in keeping with Gonzaga , we must first ask whether Congress created an “unambiguously conferred right” in section 7 of the Privacy Act.536 U.S. at 283, 122 S. Ct. at

2275; see also Blessing , 520 U.S. at 340, 117 S. Ct. at 1359 (“In order to seek redress through § 1983, . . . a plaintiff must assert the violation of a federal right , not merely

a violation of feder

al law .”). The relevant port

ion of section 7 states , “It shall be unlawful for any Federal, State

or local governm

ent agency to den

y to any indivi

dual any right, benefit, or privil

ege provided by la

w because of such in

dividual's refusal to15

disclose his social se

curity account number.” 88 S tat. at 2194. W

e agree with the Government tha

t this language, aim

ed at the denial of r

ights to individuals, is analogous to language c

ited by the Supre

me Court in Gonzaga as “explicit ‘ rightor duty-creating language’”: Title VI provides : “

No person in the United State s shall . . . be subjected to discr

imination under a

ny program or activity receiving Federal financial assistance” on the basis of race, color, or national origin. 78 Stat. 252, 42 U.S.C. § 2000d (1994 ed.) (emphasis added). Title IX provides : “

No person in the United State s shall , on the basis of sex . . . be subj ected to discrim ination under any

education program or ac

tivity receivin

g Federal financi

al assistance.” 8 6 Stat. 373, 20 U.S.C. § 1681(a) (emp hasis added). W

here a statute does not include this sort of explicit “right- or du ty-creating language” we rarely impute to Congress an i ntent to create a priv ate right of action. 536 U.S. at 284 n. 3, 122 S. Ct. at 22 76 n.3. In contrast , the relevant lan

guage of the Family

Educational Rights a

nd Privacy Ac

t of 1974 (“FER

PA”), which the Gonzaga Court held not to create personal rights e nforceable under § 1983 provides:16

No funds shall be m

ade available under

any applicable program to any educational

agency or instit

ution which has a polic

y or practice of permitting the r

elease of educati

on records (or per

sonally identifia

ble information contained therein . . .) of students without the written consent of their par

ents to any individu

al, agency,

or organization. 536 U.S. at 278-79 , 122 S. Ct. at 227 3 (quoting 20 U.S.C . § 1232g(b)(1)). The Court explained: Unlike the individuall

y focused term

inology of Title s VI and IX (“ no person shall be subje

cted to discrim

ination”), FERP

A’s provisions speak only to the S ecretary of Education, direc ting that “[n] o funds shall be made a

vailable” to any

“educational a

gency or instituti

on” which has a prohibit ed “policy or practice.” 20 U.S.C. § 12 32g(b)(1). This focus is two steps removed from the interests of individual students and parents a

nd clearly does not confer the sort of

“ individual

entitlement” that is enfo rceable under § 1983

. Id. , 536 U.S. at 287 , 122 S. Ct. at 227 7 (quoting Blessing , 520 U.S. at 343 , 117 S.Ct. at 1353). Admittedly

, the language of se

ction 7 falls som

ewhere in between the language of Titles VI and IX and that of FERPA. T

he subject of the r

elevant5 Inaddition, unlike the Privacy Act, the Gonzaga court held that FE RPA is essentially “spendinglegislation,” which rarely “confer[s] enforceable rights.” Gonzaga, 536 U.S. at 279, 122 S. Ct. at 2273. 17 clauses of Titles V

I and IX is “pe

rson,” whereas the subject of the r elevant clause of the Privacy Act is “it.” In other wo rds, if the Privacy Act were worded , “No individual may

be denied any ri

ght, benefit, or pr

ivilege provided by

law by any Federal, State

or local governm

ent agency beca

use of such individual’ s refusal to disclose his social security account number,” the language would be more precisely analogous to that of Titles VI and IX. Nonetheless, the Privacy Act clearly confers a legal right on individuals : the right to refuse to disclose his or her ssn without suffering the loss “of any right, benefit, or privilege provided by law.” 88 Stat. at 2194. T

hus, we conclude th

at Congress creat

ed an “unam

biguously conferred right” in s ection 7 of the Privac y Act. Gonzaga , 536 U.S. at 283, 122 S. Ct. at 2275. 5 As for the factors of Blessing , the language of section 7 is clearly intended to benefit individuals,

as discussed above; is

specific rather than amorphous; a nd is clearly mandatory. To rea d the statute is to see that it easily meets the three criteria of Blessing . First, because we have already

concluded that Congre ss created an “unambiguously confe rred right” in sectio n 7 of the Privacy Act, we necessarily conclude th at the language is i ntended to benefit individuals.18

Secondly, the prohibitions of the sta tute are clear a

nd specific: no “

Federal, State or local governm

ent agency [m

ay] deny . . . any indi

vidual any right,

benefit, or privilege provided by

law because of suc

h individual's refusa

l to disclose his social security

account number.” 88 Stat. at 2194 . Finally, th e language, “

It shall be unlawful” is mandatory rather than precatory. T hese words indicate a clear prohibition of specific behavior by Federal, State or local government rather than an “aspirational” goal or “yardstick.” See Blessing , 520 U.S. at 343, 177 S. Ct. at 1361. However, “Even if a plaintiff demonstrates that a feder al statute creates an individual right, ther

e is only a rebutt

able presumptio

n that the right is enf

orceable under § 1983.” Blessing , 520 U.S. at 341 , 117 S. Ct. at 136 0. To establish tha t the presumption cann

ot be rebutted, cour

ts must look to whe

ther Congress intende

d to “foreclose[ ] a remedy

under § 1983” either “

expressly, by

forbidding recourse

to § 1983 in the statute itse

lf, or implie

dly, by cre

ating a compre

hensive enforcem

ent scheme that is incompatible with individual enforcement under § 1983.” Id. As the text dem

onstrates, Congre ss did not explicitly foreclose an acti

on under § 1983. Th us, the relevan t quest ion is w hether Congre ss did so “impli edly, by creating a comprehensive e nforcement sc

heme that is incompatible with individual enforcement.” Id . Again, to read the statu te is to answer the que stion.19

Section 7 contains no enforcement scheme at all. And, as we have explained above, although section 3 of the Privacy Act contains a comprehensive remedial scheme, sec

tion 3 specifically

states that its rem

edial scheme a

pplies only

to section 3. Thus, t

he presumption th

at the rights confer

red by section 7 of

the Privacy Act may be vindi cated via a suit under

§ 1983 stands, and we hold that the rights conferred by

section 7 may

be enforced under § 1983. B. If the Privacy

Act allows for a

private right of ac

tion, whether Cong

ress exceeded its authority in enacting the Privacy Act, rendering the Privacy Ac t unconstitutional

. Cox argues that if Appellants may sue a State for violation of the Privacy Act via § 1983, then Co ngress exceeded its authority in passing the Privacy Act. Cox argues that the only possible source of authority for the Privacy Act was Congress’s Commerce Clause power. T he Government argues, however, that Congress’s right to establish the use of ssns arises from the “general welfare clause,” which a

uthorizes Congress t

o spend money

for the general w

elfare. This power is “quite expansive.” Buckley v. Val eo, 424 U.S. 1, 90,

96 S. Ct. 612, 668, 46 L. Ed. 2d 659 (19 76). In addition, t he Government

argues, the Nec essary and Proper Clause “authorizes Congress . . . to adopt measures that bear a ra tional connection to any of its enumerated powers.” United States v. E dgar , 304 F.3d6 Cox states that “[t]he registration card set forth in Section 34-609 [now O.C.G.A. § 21-2- 219] contained a blank for the individual’s social security number ‘(I f know n at the time of application)’” and that the Form was not changed to delete the phrase “if known at the time of the 20 1320, 1326 (11 th Cir.), cert. denied , 123 S. Ct. 679, 154 L. Ed. 2d 5 77 (2002). Thus, the Governm

ent argues, becau

se Congress had the a

uthority to author

ize the creation of ssns, Congress has the authority to “safeguard[] the proper use of social security num

bers by prohibitin

g federal, state , and local governm ents from conditioning an individua l’s legal rights on disclosure of his soci al security number.” We agree with the Governm ent and hold that Congress did not exceed its authority in pa

ssing the Privacy

Act. C. Whether Georg

ia qualifies for the

“grandfather

” exception of secti

on 7(a)(2)(B) of the Privacy Act

. Section 7(a)(2) of the Privacy Act makes an exception for agencies which “maintain [ed] a syste

m of records in

existence and opera

ting before January

1, 1975,” but only “

if such disclosure w

as required under st

atute or regulation adopted [before Ja

nuary 1, 1975] to verify the id entity of an indivi

dual.” 88 Stat. at 2194. Thus, to qualify for the grandfathe

r exception, Geor

gia must show tha

t it meets two criteria: (1) that it maintained a system of records operating before January 1, 19 75; and (2 ) that the s ystem required the disclo sure of an i ndividu al’s ssn to verify the

identity of that i

ndividual. 6application,” until 1995. Thus, before 1975, the ssn was not required, it was only required “if known

at t he time of the application.” Cox’s acknowledgment may warrant summary judgment fo r Appellants

because it woul d indicate that G eorgia cannot meet the second r

equirement. None

theless, we r emand this issue to the district court because further fact-finding may be necessary an

d i n deferenceto “the genera

l rule. . . that a federal appellate court does not consider an issue not passed uponbelow.” Iraola & CIA, SA v. Kimberly-Clark Corp. , 325 F.3d 1274, 1284-85 (11th Cir. 2003) (internal quotation omitted).

21 Because we hold tha

t the rights conferr

ed by the Privac

y Act may

be vindicated via a priv

ate right of action u

nder § 1983, we rem

and the issue of whether Georgia

qualifies for the “

grandfather” exc eption of the Privac y Act to the district court to address in the first instance. D. Whether Georgia’s voter registration forms comply with the notice requirements of section 7(b) of the Privacy Act

. Appellants argue th

at Georgia’s V

oter Registration F orm fails to com ply with the notificati

on requirement

s of section 7(b) of t

he Privacy Ac

t because the Form does not inf

orm voters under

what authority

the demand for

their ssns is made. Secon

dly, Appellant

s argue that the For

m promises

confidentiality

and “internal” use

only. Cox adm

its that state law a

llows the ssns to be disc

losed to other Georgia state ag encies if requested b y those agencies. However, Cox not

es that the Form

has been modifie

d to contain citations t

o O.C.G.A. §§ 21-2-219 and 21 -2-220 as statuto ry authority for requiring t he ssns. Cox also states that t

he other modifi

cation to the card is

that it will now expl

ain22

that “internal

use only” “m

eans to identify

and verify the i

dentity of voter

s.” If it is true that other sta

te agencies in Geor

gia will have acce ss to Georgia voters ’ ssns, this modification would seem insufficient to bring the Form into compliance with section 7(b) of

the Privacy A

ct. The district

court did not reach t

his issue because it found that

the Privacy A

ct could not be enforced by a private r ight of action. Thus, w

e remand this is sue to the district co urt to consider in the first instance. E. Whether the distr

ict court erred in holding that section 1971 o f the Voting Rights Act m

ay not be enforced by a private r ight of action under § 1 983

. Appellants also cont

end that Georgia’ s requirement that voters supply

their ssns in order to vote violates 42 U.S.C.§ 1971(a)(2)(B) of the Voting Rights Ac

t, which forbids the pr

actice of disqualif

ying potential vote

rs for their failu

re to provide informa

tion irrelevant to de

termining their

eligibility to vote . This provision was intended to address the practice of requiring unnecessary information for

voter registration with the intent that s uch requireme

nts would increase the num

ber of errors or om

issions on the applicati

on forms, thus providing an excu se to disqualify poten tial voters. See Condon v. Reno, 913 F. Supp. 946, 949-50 (D .S.C. 1995). F or example, o ne “such tactic [] [was to]23

disqualify[] an applicant who fa iled to list the exact

number of m

onths and days in his age.” Id. Section 1971(c), t

he provision authorizi

ng the Attorney General to sue to enforce § 1971, wa

s added to the statute b

y the Civil Rights

Act of 1957. The district court found t

hat Congress intended

§ 1971(c) to forecl

ose the possibility

of a private right of a

ction under § 1983. T

he district court re

lied on the Sixth Circuit’s holding i

n McKay v. Thomps

on , 226 F.3d 752, 756 (6 th Cir. 2000), that § 1971 is only enforceab le by the Attorney General. In McKay , the Sixth Circuit relied entirely

on Willing v. Lake

Orion Community Schools Board of Trustees , 924 F. Supp. 815, 820 (E.D. Mich. 1996), which in turn relie

d entirely on Good v. Roy, 459 F.Supp. 403, 405 -06 (D. Kan. 1978). Thus, the e

xtent of the analy

sis relied on by th

e Sixth Circuit is the follo wing f

rom Good : “Furtherm

ore, subsection (c

) provides for enfor

cement of the statute by the

Attorney Gen

eral with no me

ntion of enforcem

ent by private persons. . . . [

T]he unambi

guous language of Sec

tion 1971 will not perm

it us to imply a priv

ate right of action. ” 459 F.Supp. at 405 -406. However, in Allen v. State B oard of Elections , 393 U.S. 544, 89 S. Ct. 817, 22 L. Ed. 2d 1 (1969), and Morse v. Republic an Party of Virginia , 517 U.S. 186, 116 S. Ct. 1186, 134 L. Ed. 2d 347 (1996) (plurality opinion), the Supreme Court7 The Supreme Court held that the languag e o f the Rivers and Harbors Act did not show

congressionalintent to “confer federal right

s upon [a particula

r class of] benef

ic iaries,” b ut was instead merely “a general proscription of cer tain activities”). California v. Sierra Club , 451 U.S. at 294, 101 S. Ct. at 1779. 24 found that other sect

ions of the Voting Righ

ts Act, 42 U.S. C. §§ 1973c and 1973h, respectively,

could be enforced by

a private right of a

ction, even though those sections also provide f

or enforceme

nt by the Attorne

y General. In Allen , which dealt wit

h the provision of the V

oting Rights Act requ

iring judicial scrutiny of alterations of voting qualifications or procedures, the Court reasoned that the goa

ls of the statute we

re much mo

re likely to be r

eached if private citizens w

ere not “requi

red to depend solely

on litigation instituted

at the discretion of the A

ttorney Gener

al.” 393 U.S. at 556, 89 S. Ct. a t 827. Thus, the Allen Court found that the po ssibility of enfo rcement by

the Attorney G

eneral did not preclude enforcement by pr ivate citizens, 393 U.S. at 556-57, 89 S. Ct. at 827, which i s contr ary to th e concl usion reached by Good and relied on by t

he Sixth Circuit. See also Sierra Club v. Andrus, 610 F.2d 581, 589 n.12 (9th Cir. 1979) (following

Allen , the court noted tha t a provision in the Rive

rs and Harbors Ac

t of 1899 expressly pro

viding for enforcem

ent by the Attor

ney General “ [did] not necessarily preclude a pri vate right of action ”), rev’d sub nomon other grounds, California v. Sierra C

lub , 451 U.S. 287, 101 S.Ct. 1775 (1981). 78 In Bonner v. City of Pri chard , 661 F.2d 1206 (11th Cir. 1981) (en ban c), the Eleventh Circuit Court of Appeals a

dopted as bindin

g p recedent the de

cisions of the for

mer Fifth Circuit issued before October 1, 1981.

25 Furthermore , the provision giving th e Attorney Ge

neral the right to br

ing a civil suit under § 1971 w as not added to § 1971 until 1957. Therefore , from the enactment of § 1983 in 1871 until 1957, pla intiffs could and did e

nforce the provisions of § 1 971 under § 1983

. See, e.g. , Smith v. Allwrigh t , 321 U.S. 649, 64 S. Ct. 757, 88 L.

Ed. 987 (1944); Chapman v. King , 154 F.2d 460 (5 th Cir. 1946); 8 Brown v. Baskin , 78 F.Supp. 933 (D.S.C. 1948 ). In House Report 291, in which the House Judiciary Committee

recomme nded passage of the pr

ovision giving the Attor

ney General t

he right to enforce the Voting

Rights Act, the Co

mmittee f irst stated that the b

ill’s purpose was “to provide means of further securing and protec

ting the civil rights of persons within the jurisdiction of the United States.” H.R. R EP . N O . 85-291 (1957), reprinted in 1957 U.S.C.C. A.N. 1966, 1966 ( emphasis added) . The Committee

also noted that “ [s]ection 1983 . .. has been used [by individuals] to enforce . . . section 1971.” H.R. R EP . N O . 85-291, reprinted in 1957 U.S.C.C.A.N. at 1977. Nothing in the

Report suggests that t

he Committ

ee intended the26

provision granting the A

ttorney Gener

al authority to br

ing suit to foreclose the continued use of §1983 by individuals. In fac

t, the Comm

ittee noted: Th[e] right to vote . . . is . . . the foundation of our representative form of Government. It is the sole m eans by which the

principle of consent of the governed as the source of governmental authority is made a living thing. Depriv

ation of the right to vot

e is the first step on the road to tyranny

and dictatorship. .

. . [T]he sove

reign . . . m

ust preserve this funda

mental and basic

right against any

and all unlawful interference. That the proposal of this section does that v

ery thing is clear. H.R. R EP . N O . 85-291, reprinted in 1957 U.S.C.C. A.N. at 1977. T his language demonstrates an intense focus on protecting the right to vote and does not support the conclusion that Con

gress meant m

erely to substitut

e one form of pr

otection for another. We ag

ree with Appella

nts that it is highly

unlikely that in “

enacting civil rights legislation for

the first time

since the Reconstru

ction era [Congres s] would simultaneously withdraw exi sting protection ” from § 1971. Furthermore , in Morse , dealing with the provision of Voting Rights Act prohibiting the use of a

poll tax, the Supre

me Court found th

at a private right of action had not been fo

reclosed even though t

he enforceme

nt scheme of the

Voting27

Rights provision at issue

gave the Attorney

General the right

to sue for violations and was more c

omplete than tha

t of § 1971. See Morse , 517 U.S. at 193, 116 S. Ct. at 1192-93. Appellants also point out that in 1957, in wha t is now § 1971(d), Co

ngress removed procedural roadblocks to suits under § 1971 by specifying that there was no requirement that a party exhaust judicial or administrative rem edies before bringing suit. Appel

lants argue that this language could not have applied to the Attorney Gen

eral and thus was m

eant to “rem

ove[] roadblocks f

or the previously authorized private rights of action under § 1971.” We agree. We conclude that neither § 1971's provi sion for enforcem ent by the Attorney Gen

eral nor Congress’ s failure to provide for a private right of action expressly in § 1971 require the conclusion that Co

ngress did not intend suc h a right to ex ist. Thus, we hold that the distri ct court err ed by findin g that Con gress’s provision for enforcement by the Attorney General in § 1971(c) precluded continued enforcement o f § 1971 by a private righ t of action under § 1 983. The district court ’s finding was dispositive on the issue of w hether the rights guaranteed by

the Voting Rights Ac

t may be enf

orced by a priva

te right of action under § 198 3. Blessing , 520 U.S. at 341, 117 S. Ct. at 1360 (noting that even if a statute cr

eates an individual r

ight, there is still no private right of a ction28

if Congress intended to “foreclose [] a reme dy under § 1983 . .. by creating a comprehensive enforcement scheme that is incom patible with individual enforcement under § 1983”). Thu s, the district cour

t did not need to determ

ine whether § 1971 created enforceable individual rights. Because we conclude that the district court’s finding that § 1971's provision for enforcement by the Attorney General preclude

d private enforcem

ent was error, we must apply the Gonzaga/Blessing

analysis to § 1971 to

determine wh

ether the statue cr

eates rights enforceable by

individuals under § 1983. As discussed above, under Gonzaga , we must fir st ask whether the s

tatute contains “explicit right- or duty-creating language.” 536 U.S. at 284 n.3, 122 S. Ct. at 2276 n.3 (inte

rnal quotations om

itted); see also Alexander v. Sandov al , 532 U.S. 275, 286-89, 121 S. Ct. 1511, 1519-21, 149 L. Ed. 2d 517 (2001) (noting that whether or not a sta

tute creates an im

plied private right of

action depends on Congress’s intent, whi ch must be determined by lookin g first to the text it self). Section 1971 states,

“No person ac

ting under color of la

w shall . . . den

y the right of any individual t

o vote in any elec

tion because of an [i

mmateria l] error or omission on any record or paper relating to any application, registration, or other act requisite to voti

ng . . . .” 42 U. S.C. § 1971(a)( 2)(B). This lan

guage is clearly analogous to the right- creating language c ited by the Supre

me Court in Gonzaga ,29

536 U.S. at 284 n. 3, 122 S. Ct. at 22 76 n.3, discussed abo ve. The subject

of the sentence is the person acting under color of state law, but t he focus of the text i s nonetheless the p rotection of each ind ividual’s right to v ote. Next, as requir ed by Blessing , the statute clearly provides rights which are specific and not amorphous. The statute protects an individual’s right to vote; specif ically, t he stat ute for bids a p erson a cting u nder co lor of l aw to di squali fy a potential voter beca

use of his or her fai

lure to provide unnece ssary inform ation on a voting applicat ion. Finally, the la

nguage of the statute

is mandatory

rather than preca

tory: “ No person acting under color o f law shall

. . . deny the right of any individual to vote . . . .” 42 U.S.C. § 1971(a)(2)(B) (em phasis added). Thus, we hold that the provisions of section 1971 of the Voting Rights Act may be enf

orced by a priva

te right of action unde

r § 1983. F. Whether the disc

losure of his or her s sn is “mate rial” in determ

ining whether a person is

qualified to vote unde

r Georgia law f

or purposes of the Vo

ting Rights Act

. Section 1971(a)(2) (B) of the Voting R ights Act is often re

ferred to as “

the materiality provision,” and, as discussed above, requires that no person be denied the right to vote “

because of an err

or or omission on a

ny record or pa

per relating30

to any applicati

on, registration,

or other act requis

ite 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.” 42 U.S.C. § 1971(a)(2)(B). Cox argues that because Georgia’ s Voter Registrat ion Form requir

es that potential vote

rs supply their ssns, they

are not “qualif

ied under State law

to vote” unless they

have supplied their ssns and t

hus filled out the Form

. However, A

ppellants point out that ac cordin g to the Form and O .C.G.A. § 2 1-2-21 6, the o nly qualifications for voting in Georgia are U.S. Citizenship, Georgia residency, being at least eighteen years of age, not having been adjudged incompetent, and not having been convicted of a felony. O.C.G.A. § 21-2-216 (1998). Because the district court found that section 1971 of the Voting Rights Act did not provide for a pr

ivate right of actio

n, the court did not r

each the issue of whether the disclos

ure of a person’s

ssn is “mat

erial” in determ

ining whether he or she is qualified to vote under Georgi a law for purposes of § 1 971. Thus, we remand this issue to the district court to address in the first instance. V. CONCLUSION A. Priva cy Act C laims31

In summar

y, we hold that

the rights conferr

ed by the Privac

y Act may

be vindicated by a pr

ivate suit under § 1983.We also hold that Congress did not exceed its authorit y in enacting the Privacy Act. We remand to the district court the issues of whethe

r Georgia qualifi

es for the “grandfather” exception of section 7(a)(2)(B) of the Privacy Act and whether Georgia’s Vote

r Registration For

m complies

with the notice req

uirements of section 7(b) of the P

rivacy Act. B. Votin g Righ ts Act Claims We hold that the dis

trict court erre

d in finding that sectio

n 1971 of the Voting Rights Act doe s not provide for enfo rcement by

a private right of a

ction under § 1983. We remand to the district court the issue of whether the disclosure of a potential voter’ s ssn is “ma terial” in determ

ining whether he or s

he is qualified to vote under

Georgia law for

purposes of section 197 1 of the Voting Rights Act. REVERSED and REMANDED.