Is it wrong to offer people who are registered to vote and sign a petition at a Musk rally the chance to a cool mil? Election law prof Rick Hasen says you bet it is.

Hugo Lowell: “Elon Musk says on stage at a town hall that America PAC will be awarding $1 million every day until the election to a registered Pennsylvania voter who has signed his petition. Musk awarded the first $1 million this evening to someone at the town hall, bringing the guy onto the stage and handing him a jumbo check, lotto-style. Musk is essentially incentivizing likely Trump voters in PA to register to vote: Petition is to support for 1A and 2A, so basically R voters. But they also have to be registered to vote, so if they weren’t already, they would do it now.”

If the lottery requires that people attending a Musk rally be registered beforehand, then it’s hard to argue that the million dollars incentivized them. After all, you can’t incentivize someone post hoc. Million or not, they were already registered.

But then, for attendees in the future, the possibility of winning $1 million could certainly incentivize them to register before attending and signing the petition. Of course, it’s highly likely they were already registered if they were attending political rallies anyway, regardless of the lottery, but there can always be some who registered, signed and attended because of the chance of winning money.

Is that against the law? Hasen says yes.

Though maybe some of the other things Musk was doing were of murky legality, this one is clearly illegal. See 52 U.S.C. 10307(c):

Whoever knowingly or willfully gives false information as to his name, address or period of residence in the voting district for the purpose of establishing his eligibility to register or vote, or conspires with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both…” (Emphasis added.)

The key part of the statute is the “offers to pay” for “registration to vote.” Registering to vote doesn’t assure any payment, but is a necessary condition of Musk’s offer that creates the possibility of payment provided the petition signer is registered. No, it doesn’t require that they actually vote, or that they vote for any particular candidate. You can sign a petition for the loot and then vote any way you please. No one can stop you. But that’s not what the law prohibits.

See also the DOJ Election Crimes Manual at 44: “The bribe may be anything having monetary value, including cash, liquor, lottery chances, and welfare benefits such as food stamps. Garcia, 719 F.2d at 102. However, offering free rides to the polls or providing employees paid leave while they vote are not prohibited. United States v. Lewin, 467 F.2d 1132, 1136 (7th Cir. 1972). Such things are given to make it easier for people to vote, not to induce them to do so. This distinction is important. For an offer or a payment to violate Section 10307(c), it must have been intended to induce or reward the voter for engaging in one or more acts necessary to cast a ballot.…

The Department of Justice manual isn’t law, of course. It provides guidance to government lawyers as to departmental interpretation and policy. But it is enlightening, both as to what the government deems a crime and what the government will prosecute. Curiously, the portion emphasized by Hasen deals with specific intent, that it be to “induce or reward the voter for engaging in one of more acts necessary to cast a ballot. Musk’s purpose seems directed at getting his petition signed rather than getting eligible voters registered. The former is his intent, while the latter is a condition of winning the lottery.

Then again, if the purpose was solely to get the petition signed and voter registration was not an additional purpose, why make it a condition precedent to winning the lottery? Musk’s putative goal is getting one million signatures on his petition, for which he upped the payment from $47 to $100 in Pennsylvania, does it matter whether the signers are registered to vote? Are unregistered signers (assuming it’s otherwise legitimate) any less American and worthy of expressing their position than registered signers?

While the tack taken by Musk doesn’t fall as cleanly within the parameters of 52 U.S.C. 10307(c) as Hasen assumes, and his arguments, to the extent you can call them arguments, are sloppy and assumptive, Hasen is probably right. The first million dollar winner had to already be registered to win, but attendees of future events will be incentivized to register in order to sign the petition and become eligible to win a mil.

Since registration is an act necessary to cast a ballot, and since it was specifically intended or would not be a specific condition for winning, and since Musk is offering a “lottery chance” for doing so, his million dollar baby crosses the line into an election law crime. Whether the Attorney General or United States Attorney will act upon it is another matter.

And it bears noting that for a campaign that’s desperately trying to manufacture in advance a claim of election fraud to soothe Trump’s humiliation from being an even bigger loser than last election, maybe having Trump’s proxy engaging in election law crimes isn’t the move. Then again, in the scheme of stuff Trump does, or is done on his behalf, this may be one of the least unseemly things. Anybody need gold sneakers or an NFT with Trump’s head on a fit person’s body?