Elon Musk’s voter registration lottery system is half-too-cute and probably illegal. It also illustrates why electoral law violations often go unpunished.
Musk announced last weekend that he would grant $1 million per day until the election to a random registered voter in Pennsylvania who signs a petition professing support for the 1st and 2nd Amendments. He has already distributed the first checks and expanded the drawing to signatories in other key electoral battlegrounds, namely Georgia, Nevada, Arizona, Michigan, Wisconsin and North Carolina.
Now, why would the richest man in the world concoct such a strangely designed gambling game and dangle instant millionaire status to registered voters? Is he so gratified by the declarations of support for the first fifth of the Bill of Rights – but only in swing states and only until the election?
Musk’s game is clearly to collect new voters for Donald Trump. Trump’s campaign and that of Kamala Harris are spending millions of dollars daily in their desperate efforts to persuade and motivate voters who could tip the seemingly deadlocked race. Musk believes he has found a new and clever way to use his own wealth to appeal more directly to voters.
That may be the case, but its method of creation also appears to be illegal. The problem is, he might just get away with it.
Federal law makes it a crime to pay someone to register to vote, codifying the fundamental principle that people should exercise the right to vote based on their free will rather than a candidate’s purchasing power or an interest group. The law arose in part from organized efforts to pay eligible voters to register.
Musk’s clumsy plan is designed to incentivize new voter registrations likely to vote for Trump while appearing to follow the law. Indeed, he seems likely to appeal to the type of coveted potential voter from a swing state who may not have registered or consistently voted in previous elections. All they have to do to try to get a life-changing payment is sign up – which federal and state laws rightly make very simple – and sign Musk’s bogus petition .
This incentive does not guarantee that signers will vote – or that they will vote for Trump – and may already be registered. But that shouldn’t obscure the obvious results of the lottery.
First, it provides something valuable to everyone who plays, even if all but one participant leaves empty-handed. This is why lottery tickets are not free: the chance to win a million has a small value and is often considered more valuable than it really is.
Second, it induces new voter registrations – imperfectly, of course, but perhaps as effectively, or even more effectively, than, say, a registration drive in a supermarket. What if some signatories were already registered or unable to vote? Musk and Trump don’t care about these people or whether they go home with checks. What matters is that in doing so, unregistered people have registered. And while it’s conceivable that the contest will produce a few previously unregistered Harris voters, people who register and sign the petition are more likely to vote for the former president.
The Justice Department reportedly sent a letter to Musk’s super PAC, which administers the program, informing it that it may be illegal. Most law-abiding campaigns would be alarmed by such a shot. Trump and Musk, however, are more likely to laugh about it.
They may have time and circumstances on their side. In practice, it is often difficult to stop violations of electoral law in the limited time remaining before voting ends, after which it is effectively too late.
Obstacles to law enforcement here are typical of electoral issues. For starters, even though every voter in the state (or every Harris voter) is arguably harmed by the scheme to manipulate the electorate, it would be difficult to find anyone to file a complaint against Musk. The Supreme Court held that a “generalized grievance” that applies equally to all voters cannot confer the necessary legal standing.
The Justice Department could sue Musk’s PAC and seek an injunction ordering it to cease any illegal behavior. And it is possible. But the ministry’s letter was sent a few days ago without public comment, and its warning that the lottery could be illegal is unlikely to petrify violators such as Musk and Trump. And it is well known that the department is usually reluctant to do anything that could be perceived as interfering with an election.
Even if the department were to obtain an injunction, there would be no way to undo the new potential Trump voter registrations that Musk has already stitched together. The same would be true if the department launched federal criminal charges against the PAC, the prospects for which are remote for this and other reasons.
This turns out to be a common feature of election law. Remember the famous butterfly ballot that inadvertently diverted more than 2,000 Floridian votes from Al Gore to Pat Buchanan in 2000, more than enough to change the outcome in favor of George W. Bush? When it became clear that so many voters had been misled, there was nothing more that could be done.
With the upcoming election shaping up to be even closer in the polls than the last two, the parties and the country have reason to obsess over the dozens, if not hundreds, of votes in swing states that will determine the next president . But elections are inevitably imperfect. In the absence of extraordinary vigilance, and in many cases despite it, the elections could give rise to bizarre events, or even the fruits of a probably criminal scheme.
Harry Litman is the host of the “Talking the Federal Government” Podcast and the “Talking San Diego » speaker series. @harrylitman