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State laws on Selective Service registration and drivers' licenses

Since enforcement of the criminal penalties for knowing and wilful refusal to register with the Selective Service System (SSS) was abandoned in the late 1980s, and the Federal law that required men to register with the SSS to be eligible for Federal financial aid for higher education was “ended” in 2021, the SSS has depended on state laws in many states (although not California or some others) that require Selective Service registration for issuance of drivers’ licenses (or make it automatic as the default, with an option to opt out) to generate most of the registrations that the SSS receives.

Some states allow applicants for drivers’ license or state IDs to opt out of being registered with the SSS. But few people notice the fine print or choose to opt out, so the effect of these state laws on compliance is almost the same as that of mandatory state laws with no opt-out provision. And opting out can be dangerous, since checking the opt-out box on the driver’s license application form creates a record that you were notified that you were supposed to register, which is otherwise the hardest element for the government to prove in a criminal prosecution for knowing and willful failure or refusal to register.

Registration with the SSS is required for Federal jobs, naturalization as a U.S. citizen, and some other state programs, but these affect far fewer draft-age people than drivers’ licenses.

The importance of state laws linking draft registration to drivers’ licenses was confirmed by then SSS Director Don Benton in his first, closed-door meeting with the National Commission on Military, National, and Public Service (NCMNPS) in November 2017:

States that do not require registration to issue drivers’ licenses show significantly lower rates of registration. Those states include California, Pennsylvania, and Massachusetts. In California, for example, 56% of males are registered at the age of 18, going up to about 70% at the age of 19, and increasing thereafter but never approaching the 92% mark that is the country’s average.

In some states draft-age male applicants for drivers licenses are automatically registered with the SSS, like it or not. In some other states they are registered by default, unless they check a box on the drivers license application to opt out. In practice, so few people read the fine print or check the “opt out” box that the effect on registration numbers is essentially the same.

Some states effectively “pre-register” drivers’ license applicants as young as 15 years old with the SSS, by requiring them to agree, when they apply for a drivers’ license, that state drivers’ license issuing agency will forward their information to the SSS to register them when they reach age 18.

Since these laws vary from state to state, some young people may be able to avoid them — if they (and perhaps their families) plan ahead. Moving to another state that doesn’t require Selective Service registration to get a drivers license may seem like a big change, especially at age 17 or 18 — but so is being drafted. Some people have a choice of which state to declare as their residence (for example, either their parents’ home address or their college address, or either of their parents’ addresses). State of residence may have other implications, however, such as state income taxes and eligibility for in-state residence tuition at public colleges, so this is a choice to be made with care. These are issues to think about before you reach an age at which you are automatically registered by state driver licensing authorities.

The problems that dependence on state driver licensing laws for Selective Service registration compliance will cause for the attempt to expand draft registration to women were anticipated during closed-door meetings of the NCMNPS, although they went unmentioned in the public report of the NCMNPS.

Edward Allard — ex-Marine (1963-1973), Congressional spouse, and former Director of Operations for the Selective Service System, who was appointed to the NCMNPS by then House Minority Leader Nancy Pelosi, a California Democratic Congressional colleague of Allard’s wife — was the only member of the NCMNPS with any experience with the SSS. Allard stressed repeatedly to his fellow members of the NCMNPS that the SSS achieves what it considers to be high compliance with the requirement for men to register for the draft only by a combination of (1) avoiding calling attention to the significance of Selective Service registration or the connection between registration and the draft (“It’s just registration, not the draft”), and (2) a system of primarily “passive” registration that depends overwhelmingly on state laws that make registration with the SSS a requirement, or at least a default, for issuance of drivers’ licenses and state ID cards to men of draft age. Without the linkage of drivers licenses to Selective Service registration, Allard argued repeatedly, compliance with registration would decline rapidly to politically unacceptable levels.

During a closed-door debriefing after the April 2019 NCMNPS public hearings at which both former Director of the Selective Service System Bernard Rostker and I testified that noncompliance has rendered the current Selective Service registration database useless for an actual draft, Allard pointed out the problem that dependence on state laws will pose for any attempt to expand the obligation to register to women:

Dr. Rough [NCMNPS Director of Research] asked the Commission for reactions on whether the secondary registration processes such as using state motor vehicles registration are worth keeping or reviewing. Mr. Allard said he completely disagreed with Mr. Benton about state drivers’ license legislation. He said only a handful of states have laws that are gender neutral and it will be a challenging process to change those laws if registration is required of all Americans [regardless of gender]. Many of those laws, he noted, have been in place for a long time and any changes to them could yield entirely different results.

In other words, hawkish (but also sexist) state legislators who were happy to use their state driver licensing laws to pressure or coerce young men to register for a possible draft may not be so willing to amend those laws to induce young women to register.

The same concern had been raised during a field visit by members of the NCMNPS to the SSS Data Management Center (Great Lakes, IL) in June 2018. One staff member at the Data Management Center “was concerned that… the state DMVs [might] refuse to share information — whether because their state laws are not changed to include women, or they choose not to participate [in data sharing with the SSS] following an expansion of the registration pool” to include women.

Given the dependence of such limited compliance as the SSS now obtains on these state laws, this means that Congress doesn’t actually have the power to expand draft registration to women without active collaboration by state governments. Even after Congress votes to expand registration to women, states will be able to effectively opt out for their residents by refusing to expand their state drivers license linkage laws to women, or by repealing them entirely.

Congressional action on women and draft registration will trigger dozens of divisive state legislative debates (and possibly also state-by-state litigation) that will inevitably go on for years. Each state will have to repeat the same debate that Congress has just gone through as to whether draft registration should be expanded to women or ended entirely.

State-by-state legislative activity will continue in parallel with the ongoing Congressional debate over whether to end draft registration or try to expand it to women. These debates about use of state laws to get young people to register for the draft are not a mere footnote to the Congressional debate about Federal law: If states won’t use their drivers’ license laws to pressure young people to register, the Federal government — which abandoned enforcement of the criminal penalties for refusal to register with Selective Service decades ago — has no “plan B” for enforcement of registration. Monitoring and opposing proposals in their state legislatures for new or expanded linkages between drivers’ licenses and draft registration, and working to repeal existing state laws related to Selective Service to preempt any attempt to expand them, should be a priority for opponents of the draft and draft registration.

These state laws will remain on the books, and would continue to penalize residents of many states who had previously failed or refused to register for the draft, even if the Federal law requiring draft registration is repealed — unless the bill to end draft registration explicitly “preempts” (overrides and nullifies) these state laws. One of the most important provisions of the Selective Service Repeal Act is such a provision preempting all state sanctions for nonregistration.

States fall into three categories with respect to their laws (if any) related to Selective Service registration. Opponents of the draft will face different challenges in each of these groups of states:

  1. No state law linking drivers licenses to Selective Service registration: These states include California, Oregon, Massachusetts, Pennsylvania, New Jersey, and several other less populous states. Getting each of these states — especially California — to pass a law linking drivers licenses to Selective Service registration has been a high priority for many years for the SSS, which has a nationally-coordinated program of state-level lobbying carried out through through its state directors, draft board members, and other volunteers and boosters. (This plan was revised in April 2021 to downplay the role of SSS staff in direct lobbying. I suspect that the SSS may have realized that some of its activities under the previous version of this lobbying plan might have been found to violate the Hatch Act, which generally prohibits lobbying by Federal employees.) In response to a FOIA request in February 2022, the SSS identified this law enacted in North Dakota in 2019 as the SSS template or model for state legislation to link drivers’ licenses to registration with the SSS. The SSS will undoubtedly keep trying to get each of these states, especially the most populous ones, to pass such laws. But proponents of this state legislation like this may face additional opposition from those who aren’t opposed to plans and preparations for drafting men, but who don’t want women included in those plans.
    In Massachusetts, for examples, multiple proposals to link drivers’ licenses to Selective Service registration were introduced as standalone bills and as amendments to other bills in the state legislature in 2022, despite the fact that Massachusetts state law enacted in 1970 and never repealed or superceded opposes any draft of Massachusetts residents for undeclared foreign wars. (Under that law, the state sued the Federal government to stop the deployment of Massachusetts draftees and enlistees in the undeclared war in Indochina. But the U.S. Supreme Court, over a dissent by Justice William O. Douglas, refused to hear the case.
  2. State law related to Selective Service applicable only to men: If Federal law (the Military Selective Service Act) is changed to apply equally to men and women, state laws imposing obligations related to Selective Service on men but not women, such as current laws applicable to “any male applicant” for a driver’s license, will be vulnerable to being overturned on equal protection grounds. State legislatures may prefer to do nothing unless forced to do so, so it may be necessary to challenge each of these laws in court, state by state, to overturn these laws and force state legislators to choose whether to amend them to apply equally to women, or to allow them to remain void. The SSS and its supporters probably won’t wait, but will seek to preempt the possibility of having any of these laws overturned in court by proposing state legislation to amend them to apply equally to women. “If legislation passes that women need to register for the Selective Service, this box will need to be adjusted and written as gender neutral. ‘We may be calling on The American Legion in states to help with this,’” according to a speech to the 2021 American Legion convention by Denise Rohan, Wisconsin state Director of the Selective Service System and former National Commander of the American Legion.
  3. State law related to Selective Service applicable equally to women and men: Even though the laws in these states use non-gendered language(“any person subject to the MSSA” rather than “any male person subject to the MSSA”), the fact that only men and not women have been subject to the Federal requirement to register with the SSS has meant that, in effect, these state laws applied only to men. State legislators who don’t want draft registration expanded to women may seek to repeal these state laws, joined in that effort by those who don’t want state laws used to pressure anyone to register for the draft.

Bills related to Selective Service are likely to be introduced in legislatures in states in each of these categories in 2022,
as Congress considers proposals to expand draft registration to women or to end it entirely, for different reasons as outlined above. The success or failure of these state legislative proposals could determine the success or failure of the attempt to expand draft registration to women, and of the entire Selective Service registration program.

Opponents of draft registration and its expansion to women should monitor proposals (search the titles and/or text of bills for “Selective Service”) and start looking for champions and allies in their state legislature.

Below are some pending proposals that have been brought to our attention. Please let us know if you are aware of others, or would like to take on maintenance of this list or coordination of state-level lobbying on this issue. Monitoring legislative activity in fifty states and five U.S. territories is beyond our capacity, but would be an excellent project for a volunteer, law student, scholar/activist, or intern.

  • Directories of current state laws related to Selective Service (not necessarily complete, accurate, or up to date):
  • Pending proposals for new or changed state legislation related to Selective Service (let us know if you know of others):
    • Proposals for state laws to require SSS registration for drivers’ licenses (in states that currently have no such laws):
      • Massachusetts H. 4263 / S. 2585: Revised version introduced 22 November 2021 would automatically register all applicants for Massachusetts driver’s licenses or state ID cards ages 18-26 (men and women) with the Selective Service System by default, unless they opt out on their application. (Note that a Massachusetts state law enacted in 1970 and never repealed provides that no resident of Massachusetts inducted into or serving in the armed forces shall be required to serve abroad in an armed conflict that has not been declared as a war by Congress.)
      • New Jersey A858 / S1552: Would automatically register all male applicants for New Jersey driver’s licenses, learner’s permits, or state ID cards ages 18-26 with the Selective Service System.
    • Proposals to change gendered language (e.g. “any male person”) to nongendered language (e.g. “any person”) in laws linking Selective Service registration to drivers’ licenses, so that those state laws will apply to women as well as men if Federal law is changed to require women as well as men to register with the Selective Service System:
    • Proposals to impose new eligibility requirements based on Selective Service registration for state programs other than drivers’ licenses:
      • Hawaii SB2364: Would impose new lifetime requirement for registration with the Selective Service System for enrollment in state colleges or universities, state financial aid for higher education, or state jobs.
      • Massachusetts H. 1352 / S. 825: Would impose new requirement for registration with the Selective Service System for for in-state tuition at state colleges and universities.
    • State bills to repeal current requirements to register with the Selective Service System to be eligible for state higher education programs, to align with the change in Federal law made by Congress in 2020 as part of the FAFSA Simplification Act:

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This page most recently modified 16 March 2022. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.