Government

Musk Sued By PA District Attorney For Running Illegal Election Lottery

But what if we call the winners subcontractors? Is that cool?

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Billionaire Elon Musk at Paris Viva Tech Fair

(Photo by Nathan Laine/Bloomberg via Getty Images)

The question of whether Elon Musk’s voter registration lottery violates federal law appears to be very much up in the air. But as a matter of Pennsylvania state law, the answer appears to be yes … probably.

Two weeks ago, Musk and his pro-Trump America PAC promised to give away $47 “in appreciation for your support” to any registered swing state voter who signs a petition “in support of the Constitution, especially freedom of speech and the right to bear arms.” In addition Musk promised to give a $1 million check to one signer every day through the election. And notwithstanding a brief pause after getting a sternly worded letter from the Justice Department, he appears to have followed through on the second part, at least.

It should be noted that the version of the petition currently available on the PAC’s website makes no guarantee that the $1 million winner will be chosen at random. It should also be noted that Musk does not appear to have made the $47 payments, later upped to $100 per signer in all-important Pennsylvania.

This morning Philadelphia District Attorney Larry Krasner’s office filed a two-count civil action against Musk and his PAC, charging them with creating a public nuisance and violating Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. 

“America PAC and Musk are lulling Philadelphia citizens – and others in the Commonwealth (and other swing states in the upcoming election) – to give up their personal identifying information and make a political pledge in exchange for the chance to win $1 million. That is a lottery,” they argue.

The Commonwealth does not permit private lotteries, and giving away money to one randomly selected entrant would likely violate that law. Also, as the complaint points out, the selection of winners does not appear to have been random, since the recipient just so happened to be in attendance at least three times now when the winner was announced at a rally.

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DA Krasner makes an interesting pincer-like argument, here. Either the contest is a lottery, in which case it violates the state ban on non-sanctioned gambling. Or it is not a lottery, in which case it violates the state’s consumer protection laws.

To be clear, it would be no defense for America PAC and Musk to argue that it was not engaging in a lottery if their scheme actually did not involve a chance or random selection of winners. In that event, (a) they would be admitting to acting deceptively and in violation of the Commonwealth’s consumer protection law; and (b) they would still be in violation of the Commonwealth’s prohibition against the operation of unlawful lotteries.

For its part, the PAC does appear to have made a token effort to at least look like it’s heeding the lottery ban. In its current iteration, it reads: “Each day, one petition signer from either PA, GA, NV, AZ, MI, WI, or NC will earn $1,000,000.” And the rules say that “Payments of $600 or more will require the referrer to provide a signed IRS W-9 so an IRS 1099 can be issued.”

Is Musk thinking he can magic away the legal implications of running an illegal lottery by removing the random selection and denominating the recipients as independent contractors earning a performance bonus? That seems … poorly thought out. OTOH, we are talking about someone who paid $54.20 a share for Twitter in the world’s most expensive weed joke so, yeah, that tracks.

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Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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