On Thursday morning, a judge in Pennsylvania declined to put a stop to the Great Elon Musk Giveaway currently happening in seven American states that are particularly crucial in next week’s national elections. Every day between now and the vote, the zillionaire rocketeer, an unabashed backer of Donald Trump, is giving away million-dollar prizes through his America PAC campaign organization to randomly chosen Americans who sign a petition supporting the First (free speech) and Second (bear arms) Amendments to the United States Constitution. The offer is restricted to registered voters in the states of Arizona, Georgia, Michigan, Nevada, North Carolina, Wisconsin and Pennsylvania, which is looking especially pivotal to Republican (and Democratic) hopes in the Electoral College calculus.
Under American federal statute, it is unquestionably illegal to offer anyone a payment “either for registration to vote or for voting,” with a prescribed penalty of up to $10,000 in fines or five years in prison. What nobody knows for sure is whether Musk’s lottery runs afoul of this. Relevant election law experts are divided on whether a judge would decide that Musk is paying people to sign a petition, which would be fine, or paying people to register to vote, which might land him in the pen. One might naively assume that an issue such as this had been litigated at some point in the long history of the republic, spattered as it is with clever giga-rich men seeking to exert political influence — but one would, apparently, be wrong.
The truth, as a piece by Politifact’s Louis Jacobson acknowledges, is that Musk probably isn’t in any danger before the election. It might be one thing if there was a black-letter case law precedent, but in this case, which involves an acknowledged grey area, Musk would have to be pursued after the offence by the Department of Justice, which is slow-moving and leery of intervening in elections, or the Federal Election Commission, which is equally sluggish and hobbled by political division. (Of course, if Trump wins, an ordinary DOJ prosecution becomes all the more improbable.) Musk, with typical tech-disrupter logic, has found an exploitable gap in the armour of U.S. election law.
His lottery, of course, doesn’t require anyone to be a Republican or vote Republican, and there is no earthly reason Democrats in divided states can’t sign his petition, collect any lottery winnings and go vote for proudly for Kamala Harris. And the whole exercise, after all, might turn off more potential Republican voters than it attracts. Liberal academics are contending that the petition is a mere piece of paper intended to provide legal cover, and that what Musk is really paying for is new voter registrations among gun- and free-speech-lovers. In that light, the fact that the lottery is only being held in swing states might be a point against Musk if the issue is properly litigated.
On the other hand, in swing-state politics (and everywhere else in the democratic world), money changes hands all the time for voter information, and the lottery entrants are giving America PAC their names and email addresses. If Musk can argue that he is collecting voter data with outreach in future U.S. elections in mind, rather than just blatantly paying to encourage voter registrations in 2024, the case against him becomes that much weaker both logically and ethically.