Musk's $1,000,000 Voting Lottery Illegal?

- All this political advertising never made any sense. Why pay for ads when. you can just pay people directly to vote for you? It's brilliant. Cut out the middleman. Why didn't I think of that? I mean, granted, it does seem like buying. votes should be illegal. (police sirens wailing) Yeah, well it turns out that it is. It is very illegal. But nonetheless, Elon Musk is making it rain for Donald Trump. First he gave the campaign. $75 million through a new PAC, but that just wasn't enough. Musk has recently announced some, shall we say, incentives to get people to, vote for Trump in swing states. And Musk has announced that every day between now and election day, he will give $1 million to a registered voter, chosen at random, who signed one of his petitions. - We are going to be, awarding a million dollars (audience gasps) randomly to people who have signed, signed the petition, every day from now until the election. - Doesn't that sound a little bit like a, I don't know, bribe? Well, today we're gonna talk, about whether Musk's actions constitute a criminal offense, the sentence that he, could face if convicted, and whether federal law enforcement will intervene before the election. Because in his seemingly endless quest to be a poorly written James Bond villain, Elon Musk has inserted himself into the 2024 presidential. election in a big way. He took the @america Twitter handle away from its user and gave it to himself. He spent $75 million to launch an organization, called the America PAC to support Donald Trump's, presidential campaign. And he appeared at a Trump rally where he jumped up and down like a teenager, at a Chappell Roan concert. (people cheering) - Is the only reason we can now send American astronauts into space. Come here, take over Elon. Yes, take over. - And now Elon has temporarily, moved to Pennsylvania and declared in a very sincere way that he's a fan of both the. Steelers and the Eagles, making him exactly one of one. But Musk's America PAC is running Trump's Get. Out the Vote campaign. And one of the key initiatives is incentivizing people to sign a petition, pledging their "Support for the, First and Second amendments" by offering cash rewards, exclusively to residents of swing states. The petition states, "The First and Second Amendments guarantee freedom of speech and the right to bear arms. By signing below, I am pledging my support for the First and Second Amendments." Now, usually a petition is meant to demonstrate public support for some proposition like. the right to bear arms. But this petition seems to have very little value in demonstrating anything. And as a group of Republican attorneys and public officials have observed, "Critically, America PAC has not made the names or numbers of petition signers public, so the petition provides no demonstration in public support for even that statement." But the rewards include $47 for each registered voter in a swing state that a petitioner recruits to sign, or $100 if the voter is from Pennsylvania. And in his tweet announcing the offer, Musk proclaimed it was easy money. And a few days later he upped the ante. Musk awarded a random Pennsylvania petition signer a $1 million prize on, October 19th, 20th, and 21st. And he says he's gonna be giving random $1 million prices to other people who are registered to vote in any of these seven swing states from now through election, day November 5th. Now, the cash offers in Pennsylvania are only available for petition signatures, submitted by October 21st, because that's the voter registration deadline in the Commonwealth. And since only registered. voters can claim the prizes, the offer basically incentivizes people to register by offering $100 and maybe even more just, for registering to vote and filling out an online petition. This creates a financial motive for people to register before the deadline. And the obvious question here is whether this scheme violates any election laws. Is Elon doing anything illegal? And the answer is, yeah, it's, probably illegal vote buying. Now America has a long history of giving people freebies in exchange for votes. In our video on things, that used to be illegal, we talked about how the founding fathers used to give voters free drinks. In fact, 24-year-old George Washington failed to win a seat in the Virginia House of Burgesses after he decided against. treating voters to booze. Three years later, Washington ran again. And this time he showed up with 144 gallons of alcoholic drinks. - Let's, (loud burp) let's do this. - And it was a success. He paid a half gallon of liquor or wine for every vote that he won. Now, eventually Americans decided. it was wrong to buy votes, especially with alcohol. I mean, sure money is speech, but it's not that speech and it should be obvious, but the practice undermines, the integrity of elections by coercing or incentivizing voters to cast their ballots for specific candidates or party, rather than voting based on their real preferences. And vote buying is the practice of offering money, goods or, services to people in exchange for their vote in an election. And in the United States, several federal laws address giving something of value in exchange for voting or registering to vote. 18 U.S.C. 597 makes it a federal crime to pay, offer or promise any money or benefit in exchange for voting or withholding a vote for a specific candidate, in a federal election. And there's also 52 U.S.C. 10307, which states quote, "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." So as you can see, this section of the Voting Rights Act makes it illegal for any person to pay or offer to pay anyone for voting or registering to vote. And according to the. Department of Justice, this kind of scheme doesn't need to be successful to be illegal. "Section 10307(c) applies. as long as a pattern of vote-buying exposes a federal election to potential corruption, even though it cannot be shown that the threat materialized." This means we don't have. to wait for the election to figure out if Musk's actions swayed voters before deeming it illegal. And the DOJ says that, "The statute rests on the premise that potential voters. can choose not to vote, that those who choose to vote have a right not to have the voting process, diluted with ballots that have been procured through bribery, and that the selection, of the nation's leaders should not degenerate into a spending contest with the victor being the candidate who can pay the most voters." But most vote buying is not as simple as giving cash for votes, although that has happened before. For example, in 1996, the candidate running for. sheriff and commissioner of Dodge County, Georgia engaged in so much open vote buying that the magistrate called the atmosphere, "A successful flea market." The open bidding for. votes was like an auction where both sides, "Paid. the voter $20 to $40 after the voter cast his or her absentee ballot. Sometimes the cash payment occurred in the courthouse bathroom." But Musk's scheme is slightly less crass. Now the courts interpret 10307(c) to include almost anything of value. For example in US versus Garcia, the Duval County welfare director was accused of a vote buying scheme. She was responsible for issuing vouchers for food, clothing, prescriptions, and medical services, to indigent persons in. need of welfare assistance. And the government charged Garcia, and three other people, with giving welfare food vouchers to people in return for their promises to vote absentee for a certain local candidate in the Democratic primary election. And the 11th Circuit, upheld their convictions and found that the term, payment was broad enough to include any other item of. value such as welfare benefits. Now, whether the item is something of value depends on, "The perspective of the, voter receiving the item and not the person offering it." And not everything of. value violates the law. "Free rides to the polls or providing employees paid leave while they, vote are not prohibited." But what's the difference between a payment or welfare voucher and a ride? Well, the ride makes it, easier to get to the polls, but it doesn't influence the individuals who have already decided to vote to actually cast their ballots. And this statute doesn't, require proof that a voter was paid to support a specific candidate. Offering something of value to get someone to vote or register to vote falls under its scope. For example, in 2008, Ben & Jerry's initially offered free ice cream on election day to anyone wearing an I Voted sticker, but later adjusted the

promotion to allow any sticker due to concerns about Section 10307 (c). As the company now acknowledges, "It turns out that giving. away freebies as incentives for voting is not super legal. So we had to modify the offer, free scoops for anyone who had a sticker on voting related or otherwise." A bunch of freaking killjoys. Now, obviously if you're illegally buying votes, you'll want a good lawyer, but if you want a great lawyer, my law firm, the Eagle Team can help. If you've gotten in a car crash, suffered a data breach, especially if you've got one of those data breach letters saying that tour information, might have been leaked or dealing with a worker's comp or social security issue, we can represent you or help find you the right attorney. Because it's so important to, talk to a lawyer right away so you can get the best representation and find out what your options are. So just click on the, link in the description or call the phone number on screen for a free consultation with my team. Because you don't just need a legal team, you need the Eagle Team. So click below. But the DOJ manual specifically references lottery chances as something of value. We checked and it doesn't seem like there's case law specifically on the point about lotteries as vote bribing schemes, but the DOJ's interpretation carry a significant weight. Now to figure out whether any of Musk's, activities are illegal, we have to look at each offer. And Elon's first gambit was offering voters in Pennsylvania the opportunity to see him give a speech, as long as they signed the petition and already voted in the election. Now this seems like a pretty. clear offer of payment, which again means anything. of value for voting, and it seems like this would violate section 597 in the same way that the Ben & Jerry's offer did. But the first monetary offer was to pay registered voters $47 if they got another, person to sign a petition. But the statute doesn't bar, someone from paying others to do campaign work. And in other case that involved the Garcia, Welfare Vote Buying scheme, some of the defendants argued, that they were paid cash to do campaign work, like handing out posters, but the Fifth Circuit Court of Appeals upheld several convictions saying the jury had enough evidence that people were actually. given $30 to vote, not to do other activities for the candidates. And Elon's PAC is hiring people. If you click on the, @america PAC Twitter page, you can apply for canvassing jobs in swing states, and that's perfectly legal. However, the statute. specifically prohibits payments "For registration to vote." And the Justice Department says that, "Section 10307(c) does, not apply to payments made to signature gatherers for voter registration such individuals may obtain." However, such payments become, actionable under 10307(c), if they're shared with a person being registered. Now, to appear on ballot, candidates often need to, collect a certain number of signatures from registered voters. And when someone approaches you at Target and asks you to add your signature, that's totally legal, even if that person is. being paid to do the work. But it becomes illegal if they pay you for signing your name. And while Musk could argue. that the $47 payments are for campaign work, that interpretation's pretty weak, because of the voter, registration requirement. Restricting the payments to registered swing state voters suggest the intent was to pay people to register. And it really had nothing at, all to do with the petition. Although those who signed the. petition certainly gave Musk valuable data for a big mailing list. And later, he raised the amount to $100 specifically, for Pennsylvania voters. That runs into the same. problem as the $47. The petition supporting the First and Second. Amendments is meaningless, but it's pretty obvious why they did this. Someone who supports the Second Amendment so much they're willing to, sign a petition of support for it is probably going, to vote for Donald Trump. So they're clearly counting, on the selection bias here and the money is being. provided specifically for registered voters who reach out to other registered voters. An election law expert and. UCLA law professor, Rick Hasen, who's usually a very sober. voice on election law says, "Though some of the other things Musk was doing were of murky legality, this. one is clearly illegal." But wait, there's more. You might recall that Elon. also offered a lottery. "All you need to do is sign the @america petition in support of constitutional rights to free speech and bear arms to have a daily chance. of winning $1 million. You can be from any or no political party and you don't even have to vote. Now, we recently talked about the legality of some of Mr. Beast's old lotteries. Lotteries are distinct from sweepstakes, which are legal. Sweepstakes are games where a person has chosen randomly to win a prize and sweepstakes participants do not need to give consideration to enter. And a raffle is, "An activity in which people buy tickets with different numbers, some of which are later, chosen to win prizes that is organized in order to make money for a good social purpose." And in fact, Kamala Harris is actually holding a sweepstakes right now. "We're inviting one lucky supporter and a friend to our Get Out the Vote concert." And although you can donate to enter the sweepstakes, you don't have to pay anything at all. If you click on the link. and enter your email, you can enter without contributing. But Elon's offer, on the other hand, is clearly an illegal lottery. A lottery becomes illegal if, it involves three key elements, one consideration, two, chance, and three a prize. Now consideration refers to a payment or something of value. given to enter the lottery. Chance means the outcome is, based on luck rather than skill. And a prize is a reward. given to the winner. And if all three elements are present, the lottery is generally illegal unless it's specifically authorized by state law such as a state run lottery. And the DOJ says that a lottery, should be considered a thing of monetary value that, constitutes vote buying in violation of Section 10307(c). And it looks like it also. violates state law as well. Musk's $1 million Lottery. also violates 18 Pennsylvania Crimes and Offenses Code Section 5512, which defines and prohibits illegal lotteries in Pennsylvania. In fact, Pennsylvania Governor Josh Shapiro called the scheme concerning and said law enforcement, should look at it. - So you think it might not be legal, yes or no? - I think it's something that law enforcement could take a look at. I'm not the Attorney General. anymore of Pennsylvania. I'm the governor. But it does raise some serious questions. - That's probably because in Pennsylvania, vote buying is also prohibited by state law under 25 Pennsylvania. statute, section 3539, which specifically addresses bribery in elections, and says, "Any person who shall directly or indirectly give or promise to offer to give any gift or reward in money goods or other valuable thing, to any person with intent to induce him to vote, or refrain from voting for any particular. candidate or candidates, or who shall directly or indirectly procure for or offer or promise to procure for such person any such gift reward with the intent aforesaid, shall be sentenced to pay a fine not exceeding $15,000 or to undergo an imprisonment. of not more than seven years, or both, in the discretion of the court". That law has a pretty broad definition of what something of value is, a gift or offer to give money, goods or other valuable things. It also prohibits voters, from accepting such offers. That means a person who. accepts payments from Musk could be prosecuted for violating the state and federal laws. And that's exactly what happened in the companion case to Garcia. The people who accepted the $30 cash payments and the welfare vouchers

were actually prosecuted for participating in the scheme. So if you're one of Elon's, $1 million winners, beware. Now, Musk can argue that a lot of the petition signers, were already registered. He stated that the lottery, is just about the petition. "You don't have to vote, just sign a petition saying you support the Constitution." That's probably his best defense, saying it was more about harvesting email and contact information for these people than. it was about actually getting people to vote. But the lottery isn't restricted to people who are already registered. You can sign the petition, but you're not entered to win a million dollars, unless you register by the deadline in swing states. And the goal is to get more people registered. And in some ways this is uncharted water. There isn't a case directly. on point that deals with this sort of indirect, but clearly intended to be directly related to registration or voting kind of case. And it could be a strong counter argument that neither Musk's payments or the lottery are payments to directly register to vote. If we treat Musk's words credulously, then all he's doing is. giving people little cash to sign a petition, supporting the Constitution, and probably building a donor list. And that's definitely legal. But if Musk took the information about the voters who signed the petition, then offered them something, of value to vote for Trump, that would probably be illegal. But he would obviously argue, that's not what happened here. So for a court to conclude that Musk violated these. state or federal statutes, the court would have to say that the monetary incentive, is not about the petition. That the petition was just a ruse for the real plan, which was to give people cash payments and a shot at a million bucks to induce people to register to vote. And that indirectness definitely, makes it a less clear case of campaign fraud and possibly an edge case. But as we've discussed, there's evidence against. this interpretation as well. The government could say that Musk and created the payments. for voters who registered, and the program was announced right before the registration deadlines. So we can infer that he was paying people to register. But on the other side, Musk would simply say it's too indirect to violate the law. He didn't pay them to register to vote. He paid people to sign a petition, and the only ones he paid, happened to be registered voters. So there's no way the payment could induce registration, let alone voting. And then making things even more surreal, Cards Against Humanity, which is suing Musk over Tesla destroying its land, made a similar offer in response to Musk. The company's offering a $100 to people who did not vote in 2020 but will vote in 2024. They announced this on. Twitter of all places. They said, "Stop masturbating, and listen up America. If you didn't vote in 2020, Cards Against Humanity, will pay you to apologize, make a voting plan and publicly post hashtag. Donald Trump is a human toilet, up to $100 if you live in a swing state and lean blue." And they're asking people in swing states to check their voter registration and make a plan to vote. And that seems to be similar if a more periodical version, of what Musk is doing. And they can also make the same arguments. They aren't paying someone to vote or to register. They're just asking people to make plans to vote. They say, quote, "It's a crazy legal loophole that we can just start a Super PAC, buy the personal voting records of every American on the internet and then pay blue leaning non-voters to apologize and make a voting plan. This whole thing should probably be illegal." Well, Cards Against Humanity, maybe it is. So if convicted, Musk faces up to five years in prison for the federal offense alone. But as Spencer Di Scala has explained, the amount of time a person gets for violating federal law depends on federal sentencing guidelines. And under those guidelines, paying people to register or vote, carries a base offense level of 12. And soliciting or accepting payment has a base level offense of six. But offering or making payments, as Musk did, increases the base offense level to 12. And Musk could also face a four level increase because he was a organizer or leader of a criminal activity involving five or more participants. So if he was convicted at trial, he'd likely face sentencing based on an offense level of 16, or 14 if he pled guilty. So maybe a sentence of two years. But the question is whether the DOJ or the state prosecutors in Pennsylvania will act on this. The Department of Justice is unlikely to do anything about this, until after the election. The DOJ has a policy which, discourages federal prosecutors from taking overt investigative or prosecutorial actions, related to candidates or elections within 60, days of a general election. The goal that policy, is to avoid influencing or appearing to influence the outcome of an election. But this policy is not, a formal rule or law, but rather a practice based on DOJ traditions and internal memoranda, such as the 2012 memo issued by then Attorney General Eric Holder. The 60 day window is meant to prevent any political, impact on public opinion where news of an investigation, could unfairly sway voters. This policy isn't absolute. The DOJ retains discretion to take action if a, situation is deemed critical or urgent enough to warrant it, regardless of the timing. And a group of Republicans. who served in government wrote a letter to Attorney General Merrick Garland urging him to act. They write that, "We are aware of nothing like this in modern political history. Law enforcement agencies are appropriately reluctant to take actions shortly before elections that could affect how people vote. But serious questions arising under laws that directly regulate the voting process, must be an exception. Otherwise, individuals may act with impunity with consequences, if any, coming only long after the damage is already done." Now, if Musk does end up going to jail, he'll probably want a really good meal, especially if it help him slim down, because he's been looking, a little portly lately. And he'd probably love today's sponsor, Factor, because Factor makes meeting, your nutrition goals easier than ever by delivering. fresh, never frozen, dietician approved meals right to your doorstep. And the meals are completely ready to eat in just two minutes. You can eliminate the hours it would take to shop, meal prep, and cook, so you can spend your day doing the things that you actually want to do. 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