Will Biden administration prosecute Elon Musk for his $1m lottery?

EXPLAINER

Experts doubt that Musk will be prosecuted — even though he might be violating election laws.

Social media exploded this week with the news that billionaire entrepreneur Elon Musk will hold a $1m daily lottery for registered voters in battleground states who sign his petition supporting free speech and the Second Amendment.

Musk fans were elated. Critics said the giveaway could be illegal.

To qualify for the lottery, petition signers must be registered to vote in Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania or Wisconsin, the seven states widely viewed as battlegrounds in the 2024 presidential election. Musk’s America PAC (political action committee) said it had already given out the first two $1m cheques to Republican voters who had already cast their ballots by mail, media outlets reported.

“I think it’s something that law enforcement could take a look at,” Pennsylvania’s Democratic Governor Josh Shapiro said on October 20 on NBC’s Meet the Press programme.

Some election law experts, including Richard Hasen of the University of California, Los Angeles, said Musk’s gambit could run afoul of 52 USC 10307(c), a federal law that says whoever “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”.

The Campaign Legal Center, a nonpartisan group that advocates for voting rights and campaign finance oversight, released a statement, saying, “It is illegal to buy votes, it is illegal to buy voter registration, and the Department of Justice has the power to enforce these important laws through civil or criminal action.”

Although the Justice Department has the power to bring a criminal case, legal experts say it is highly unlikely Musk would be prosecuted, and certainly not before Election Day 2024.

The law’s enforcement could fall either to the Federal Election Commission or the Justice Department.

The FEC “can review whether there is a civil or criminal violation”, said Jerry H Goldfeder, senior counsel with law firm Cozen O’Connor. “Such a matter usually takes months and months, starting with an internal decision to open the matter, and then presenting Musk with an opportunity to respond.”

And that is a best-case scenario for timing. In reality, FEC enforcement has been hobbled for years because its members are split between political parties, making it hard to reach the majority required to pursue enforcement.

The Justice Department could act before waiting for an FEC referral, but this poses prosecution challenges, too, experts said. Deciding whether to launch a Justice Department prosecution is a slow process, Goldfeder said.

And Musk’s case would be unusual, without a track record of successful, similar prosecutions or a playbook for how to mount them.

History suggests that a case such as this would have a low likelihood of prosecution, said Stanley Brand, a longtime Washington, DC, lawyer in political cases who currently serves as a distinguished fellow at Penn State Law.

“The significant resources needed to bring such cases and their minimal deterrent effect has often dissuaded the [Justice] Department from using them,” Brand said.

Citing the pushback Special Counsel Jack Smith has faced in attempting to quickly bring cases to trial against former President Donald Trump, Brand said he doubts a prosecution of Musk “would pay a high percentage return to engage”.

Finally, prosecuting Musk would only be possible if Kamala Harris wins the presidential election and the attorney general she appoints decides to pursue it. If Trump wins, he almost certainly would appoint someone who does not bring the case against one of his closest allies.