A bedrock principle of our representative government is that the wealthy should not be able to buy elections. To that end, our federal laws explicitly aim to reduce the influence of money on our elections because of the dangers posed by people purchasing, attempting to purchase, or appearing to purchase, electoral outcomes. A federal law dating back to 1925 criminalizes attempts to pay people to vote or not vote. This was one of the nation’s first comprehensive attempts to limit the influence of money on politics and elections and may have been a reaction to the Teapot Dome Scandal. This scandal involved the secretary of interior’s secret leasing of federal oil reserves to a company who apparently gave the secretary kickbacks in exchange for the lease. Decades later, another section of federal law extended that prohibition to attempts to pay people to register, or not register, to vote.
Our laws aim to reduce the influence of money on our elections because of the dangers posed by people purchasing electoral outcomes.
In his obvious effort to help former President Donald Trump get elected again, Elon Musk, the richest man in the world, may have just run afoul of federal law. To be clear, if Musk has run afoul of the law, it won’t be because of the $75 million he gave to his super PAC to support Trump. (Even if you think that counts as an attempt to buy an election, the law does not.) The problem is that Musk has created a lottery system of sorts for registered voters in swing states. He has pledged to give $1 million a day to a “randomly selected” registered voter who signed a petition supporting the First and Second amendments to the Constitution circulated by his super PAC, America PAC. As of Sunday, two $1 million winners had already been announced.
This scheme, which gives people a financial incentive to register to vote, either violates federal law or walks right up to the line. Multiple experts told NBC News that the petition scheme may be enough for Musk to be able to say that he isn’t paying people to register or to vote, but that it is legally questionable. On “Meet the Press” on Sunday, Pennsylvania Gov. Democrat Josh Shapiro called the lottery “deeply concerning” and suggested law enforcement could investigate it.
A Justice Department spokesperson confirmed to NBC News that the department has received a letter from former DOJ officials, many of them Republicans, calling for an investigation into whether what Musk is doing is illegal. But the department declined further comment and would not say if it is investigating.
Trump and his supporters have spent almost the last four years telling tales about nonexistent voter fraud and changing state laws based on the lie that the 2020 presidential election was stolen. Systemic voter fraud, despite what some politicians may say, is not something that exists here, especially not to the extent that it could affect elections. (Although, to be clear, false claims of voter fraud, made by Trump and his supporters, might sow enough chaos and confusion to actually affect an election. That, after all, seems to be the whole point.)
But if there is a type of election-meddling worth worrying about, Musk’s plan shows us what it looks like.
Let’s be honest. We know what Musk is trying to accomplish, because he’s been explicit about it. He wants people to vote, and vote for Trump. In fact, he announced his lottery plan from the stage where he was campaigning on behalf of Trump. He isn’t staging a lottery for everybody He isn’t even staging a lottery for all voters. Instead, he is creating a lottery exclusively for voters in swing states, i.e., those voters who live in states that could go either for Vice President Kamala Harris or Trump and effectively will determine the outcome of this election.
We know what Musk is trying to accomplish, because he’s been explicit about it. He wants people to vote for Trump.
So is Musk violating federal law? It depends. If he’s giving people, who may already be registered to vote, a monetary incentive to sign a petition supporting the First and Second amendments, then that may be legal. If, on the other hand, Musk is giving people a monetary incentive to register to vote, that is not. A federal judge looking at this question might take note of the fact that, again, Musk has only created this lottery system for registered voters in swing states. In addition, the program was announced shortly before registration deadlines in some of those states.
For example, Monday was the deadline to register to vote in Pennsylvania and Michigan. The contest’s rules appear to say that it wouldn’t accept any new entrants after Monday, but would keep naming a new $1 million prize winner each day. The Voting Rights Act of 1965, one of this nation’s landmark pieces of civil rights legislation, explicitly prohibited people from paying others to vote or register to vote. It is no coincidence that this prohibition was bundled in with other important protections for voters — like prohibiting race-based discrimination against voters — because allowing people to pay for votes and registration would undercut the anti-discrimination aspects of the VRA. While not the same, laws that outlaw paying for votes, and legal cases that outlaw forcing people to pay in order to vote, both acknowledge the fundamental truth that money has no place in an individual’s ability to vote. Poll taxes, which required people to pay a tax to go to the polls, were a particularly pernicious way to disenfranchise voters, particularly Black and low-income voters. Payments made to incentivize people to vote or register to vote, is corruption plain and simple. The decision about whether to vote should be a decision made free of monetary incentives. Federal law recognizes this. It’s not apparent that Musk does. Again, the irony is that we hear a lot (and I mean a lot) from Trump and his surrogates accusing their political adversaries of voter fraud that simply does not exist. And that understandably makes people scared and shakes their confidence in our elections. But as Trump and company continue to insist that voting is tainted with fraud, the richest man on Earth, who happens to support their candidate, has emerged as a far more likely threat.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
