Big money has always been a part of elections. So is Elon Musk's 'lottery' illegal?
WASHINGTON ? Elon Musk, the world's richest man, abruptly stopped handing out $1 million checks to swing state voters in a controversial "lottery" on Wednesday, the same day news broke that the Justice Department warned him they might be illegal.
Musk's America PAC didn't immediately explain the missing award after promising to award $1 million a day until Election Day on Nov. 5 to a different random voter who has signed his online petition.
But legal experts said Thursday it might be because the “lottery” by Musk’s super PAC could violate federal election law barring financial incentives – especially cash – to get people to register to vote.
Other legal experts, however, say the law, and the interpretation of it, leave the tech billionaire some legal wiggle room.
What makes this illegal or not?
The tech billionaire made the million-dollar promise last Saturday, and awarded the first prize at a PAC event in Pennsylvania supporting former President Donald Trump. That raised immediate questions about the legality of the payments.
UCLA professor Richard Hasen, an expert in election law, said in his Election Law Blog that the Musk payments are "clearly illegal" based on several applicable statutes and the Justice Department's Election Crimes Manual.
Hasen cited a section of federal elections law that makes it illegal for anyone who "pays or offers to pay or accepts payment either for registration to vote or for voting," punishable by $10,000 and imprisonment of "not more than five years."
The DOJ Election Crimes Manual says a bribe in the context of election and voting purposes "may be anything having monetary value, including cash, liquor, lottery chances, and welfare benefits such as food stamps."
To be illegal, the DOJ says an offer or payment must be intended "to induce or reward the voter" for engaging in one or more acts necessary to cast a ballot.
It doesn't bar offering or giving things with monetary value, such as a ride to the polls or time off from work, to help people "who have already made up their minds to vote to do so."
What does Elon Musk say?
Musk has defended what he said are random giveaways in a post on X, saying those eligible for the $1 million prizes "do not need to register as Republicans or vote in the Nov. 5 election."
“Our goal is to get 1 million registered voters in swing states to sign in support of the Constitution, especially freedom of speech and the right to bear arms,” his post said.
It also provided links to online voter registration forms in the swing states of Pennsylvania, Georgia, Nevada, Arizona, Michigan, Wisconsin and North Carolina.
So far, Musk has not publicly addressed the potential legal problem he may face by only opening the lottery to registered voters.
And, while he hasn't commented much publicly, it's likely Musk consulted with lawyers before announcing the lucrative giveaway at an Oct. 19 Trump rally.
'A reasonable judge could absolutely conclude' it's illegal
Jessica Levinson, a professor at Loyola Law School who teaches election and constitutional law, said it depends not only on what Musk specifically is doing but more importantly on how a judge ? and the Justice Department ? might interpret what he is doing based on legal precedent.
"I think the short version is that a reasonable judge could absolutely conclude that this is illegal, that it flies in the face of the federal law that says you don't get to pay anyone to register to vote or not to register to vote," Levinson told USA TODAY.
"And it's not just the lottery system," she added. "It's who it is targeted to ? it's not just everybody in America. It's just registered voters, just in swing states. And it was announced shortly before the election deadline in many of those states."
The Musk PAC’s online petition offering the money says that those eligible must pledge to support the Second Amendment, political shorthand for opposition to gun control measures, and a subject that's popular with Republican-leaning voters.
'The answer is not clear' whether Musk is breaking laws
Others say the law isn't so clear.
“There is a history of vote buying in the United States where political organizations and groups paid or rewarded people to vote in elections," said Kim Wyman, a former Washington secretary of state and an expert on U.S. election law. "To curtail that practice, state and federal laws exist to make this practice illegal. The legal question is whether Elon Musk’s million-dollar giveaways violates existing law.”
"The answer is not clear," she said. "The million-dollar giveaways come very close to vote buying but may not reach the legal standard because voters don’t have to actually vote in exchange for the payment."
There is also the important question of whether this activity would be protected as free speech under the First Amendment, Wyman said.
Why just a warning?
In recent days, the Justice Department sent Musk's pro-Trump PAC a letter warning that the handouts may violate U.S. law barring payments to sway votes, media outlets reported Wednesday.
The Justice Department declined to comment. Musk did not respond to a request for comment sent to him on X, his social media platform, formerly known as Twitter.
But Levinson said it's very possible that the Justice Department is still investigating, and might consider petitioning a judge for a temporary injunction to stop Musk payments while authorities determine if they are legal.
"It seems to be that it would be well within the discretion of a judge to say, 'I think you're violating federal law and stop,'" Levinson said.
Given his wealth, his armada of lawyers and his zeal for electing Trump, Musk conceivably could keep making the payments and risk a relatively insignificant fine and the threat of a judge holding him in contempt of court.
"Then it's a question of whether the threat of a judge saying, 'I'll put you in jail for contempt of court' is enough to get him to stop," said Levinson. "At this point, it's possible that the Department of Justice investigation is enough to get him to stop."
This article originally appeared on USA TODAY: Is it legal for Elon Musk to pay $1m daily to voters to elect Trump?