Elon Musk, the billionaire entrepreneur and campaign surrogate for former President Donald Trump, recently announced a plan to give away $1 million each day until November 5 to a randomly chosen person who’s signed a petition from his political action committee.
To win the money, the signee must be a registered swing state voter — and that criterion has raised concerns that Musk may be in violation of a federal law that makes it illegal to pay people (or offer them an incentive) to either register to vote or cast a ballot.
“I think there’s a strong argument that there’s potential criminal liability here, so at the very least [the Department of Justice] should be investigating and should be warning people not to be doing this,” Richard Hasen, director of the safeguarding Democracy Project at UCLA Law School, told Vox.
The program works like this: Registered voters in Arizona, Pennsylvania, North Carolina, Georgia, Michigan, Nevada, or Wisconsin — all swing states that could go for either Vice President Kamala Harris or Trump come election day — can sign the petition, which claims to be a “Petition in Favor of Free Speech and the Right to Bear Arms” until Monday, October 21, which happens to be the voter registration deadline in Pennsylvania.
The petition is being circulated by Musk’s America PAC, which has taken over much of Trump’s ground operation in key swing states. Musk has made Pennsylvania a particular focus of his personal outreach, hosting events there, including one on Sunday where he handed a woman in a Trump-Vance shirt a giant $1 million check.
Though the petition does not require signers to be registered Republicans, the focus on the First and Second Amendments appeals to potential Trump voters who fear Democrats will take away their gun rights and who subscribe to Musk’s idea of “free speech.” The net effect, then, is that Musk is promising $1 million a day to a program aimed at getting pro-Trump voters registered in swing states.
Because his contest is only open to registered voters, there may be a case for it to be understood as an illegal financial incentive to get people to register to vote. One issue Musk faces, said David Becker, executive director of the nonpartisan Center for Election Innovation & Research, is that what constitutes payment for voting-related activity has been broadly interpreted in the past.
“This could involve anything of value,” Becker said. The law “has been applied to things like Ben & Jerry’s offering everyone who has an ‘I Voted’ sticker an ice cream cone on Election Day. They received a cease-and-desist letter and changed [the promotion to give] everyone a free ice cream cone on Election Day.”
There is some ambiguity in Musk’s promotion, compared to what Ben & Jerry’s offered, however. The uncertainty arises from the fact that Musk’s PAC is asking people to sign a petition for the chance to win $1 million, not explicitly rewarding them for registering to vote.
Daniel Weiner, director of the Brennan Center’s Elections & Government Program, told Vox that the issue at hand really comes down to whether entering a specific group of people in a lottery if they sign a petition counts as paying people to register to vote.
“There’s certainly an argument that it is, [but] I think it’s hard to know for sure how to predict how this would play out in court,” Weiner said.
Democratic Pennsylvania Gov. Josh Shapiro called the contest “concerning,” and said it was “something that law enforcement could take a look at” in an appearance on NBC’s Meet the Press on Sunday. Thus far, the federal government hasn’t announced any investigation into the contest.
If indeed the Justice Department decided to pursue Musk, it would first send a cease-and-desist letter — just like the one Ben & Jerry’s received back in 2008. From there, he would have to decide how to respond; the penalty for breaking the law is $10,000 or a maximum of five years in prison.
But even if the DOJ decides to go after Musk for this — and there is no guarantee that it will — the issue likely won’t be resolved before November 5, in part to avoid any perception on the part of the federal government that the DOJ is meddling in the election.
“There are important norms around initiating investigations and legal proceedings in the run-up to an election. Otherwise, they can potentially launch an investigation after the election, and whether they will is something that’s difficult to predict,” Weiner said. “I think that this is something whose legality will not be resolved before the election.”