Elon Musk’s “Petition” Scheme to Buy Voter Registrations in Pennsylvania and Federal Criminal Law
Elon Musk has been actively campaigning on behalf of Donald Trump in Pennsylvania and other swing states. One of his efforts amounts to a program of paying people to register to vote by giving them both cash payments and entries in multiple million-dollar lotteries. Many people have correctly noted that this likely violates federal criminal laws against vote buying. I’m writing this essay to explain why Musk’s actions violate criminal law, the substantial sentence he would likely receive if convicted of these offenses, and why nonetheless federal law enforcement is unlikely to do anything about this scheme prior to the election.
Factual Background
Elon Musk has created an organization, the America PAC, to support Donald Trump’s presidential election campaign. One of Musk’s efforts through the America PAC has been to encourage people to sign a “petition” promising their “support for the First and Second Amendments” in exchange for cash payments that are only available to residents of swing states — $47 for each registered voter in a swing state that a petitioner gets to sign the petition or $100 if they are a registered voter in Pennsylvania, with an additional $1 million prize given to a random signer of the petition who is a registered voter in Pennsylvania on each of Oct. 19, 20, and 21, with an additional $1 million prize given to a random signer who is a registered voter in any of seven swing states on each day between Oct. 22 and Nov. 5, election day. The offers of cash are only available to people who sign the petition before the end of Oct. 21. All of those details are taken directly from petition.americapac.org — they are basically irrefutable facts.
The obvious inference is that the deadline of Oct. 21 was set because that is the deadline to register to vote in Pennsylvania. Because a signer must be a registered voter in order to collect any of the prizes, this has the effect of paying people to register to vote. Anyone in Pennsylvania who is eligible to vote but not registered can collect $100 — more if they’re lucky or convince some of their neighbors, friends, or relations as well — for the simple acts of registering to vote and filling out some information on a “petition” online.
Musk’s Payments for Voter Registration Scheme Unambiguously Violates Federal Criminal Law
Federal criminal law subjects to criminal penalties anyone who “knowingly or willfully … pays or offers to pay or accepts payment either for registration to vote or for voting…”. 52 U.S.C. Sec. 10307(c). Notice that this statute does not require proving that a voter was paid in order to vote for a specific candidate — paying a voter to vote at all, or even just to register to vote, is still covered by the statute. Some people may remember that Ben & Jerry’s tried to promote voting by offering free ice cream on election day to anyone who showed an “I Voted” sticker, but then changed their promotion to allow anyone with any sticker to claim the free ice cream because of Sec. 10307(c). Likewise, as the Ben & Jerry’s example shows, “payment” does not have to be cash to violate Sec. 10307(c) — courts have held that, for example, welfare food vouchers could constitute “payment” for purposes of this statute, United States v. Garcia, 719 F.2d 99 (5th Cir. 1982), and the Department of Justice’s Federal Prosecution of Election Offenses, 7th Ed., specifically calls out “lottery chances” as an example of illicit payments to encourage voting. Federal Prosecution of Election Offenses at 44. The Department of Justice’s statements are not binding — they are guides to prosecutors and statements of policy and legal positions, not authority courts would have to defer to — the basic conclusion that non-cash payments can violate Sec. 10307(c) is sound.
Exceptions to the general rule prohibiting payments in connection with voting or registration exist, but they likely would not apply in this case. Payments or services intended to facilitate voting — for example, free rides to the polls or providing water to people waiting on line to vote — are not inducements to vote and do not violate Sec. 10307(c). See United States v. Lewin, 467 F.2d 1132, 1136 (7th Cir. 1972) (stating in dicta that “pay” would not cover acts intended to make it easier to register without directly paying to induce people to register). More relevantly to the current issue, legitimate payments to campaign operatives for campaign work do not violate Sec. 10307(c), but payments that are ostensibly for campaign work but actually payments to register or vote do. United States v. Canales, 744 F.2d 413, 423 (5th Cir. 1984).
The initial America PAC offer of payment to registered voters who convince other registered voters to sign the petition raises some issue of fact as to whether the payments are for campaign work or to pay potential voters to register. If the program did not require being a registered voter to participate, it might look like a simple payment for campaign work, albeit at a rate that raises concerns about whether kickbacks and fee splitting will be used to pay for registrations. However, no legitimate reason exists to limit this payment to people who are themselves registered swing-state voters, which means that the language requiring that recipients of payments are swing-state registered voters suggests that even those payments were primarily intended to pay people to register to vote.
In any event, the later offers — $100 to any Pennsylvania registered voter who signs the petition and a chance for registered swing-state voters to win $1 million — are unambiguously payments that require registering to vote. These offers are a clear quid pro quo to register: register to vote and sign the petition to receive $100 and a chance at $1 million. Furthermore, sunsetting the program exactly on the day that Pennsylvania registration closes demonstrates that the payments are not intended to induce already registered voters to sign the petition. Instead, the program exists for the purpose of paying people who are not registered to vote to register — precisely what Sec. 10307(c) criminalizes. These offers unambiguously violate the law. Indeed, Rick Hasen, a prominent professor of election law, also describes this program as “clearly illegal” and asks if any of his readers disagree with this assessment. Rick Hasen, “Elon Musk Veers Into Clearly Illegal Vote Buying, Offering $1 Million Per Day Lottery Prize Only to Registered Voters,” Election Law Blog (October 19, 2024).
A handful of Republican election law practitioners have argued that this is actually a payment to sign a petition, not to register to vote, and thus not prohibited, but their arguments are nonsense. Brad Smith, a law professor, former chair of the FEC, and well known Republican hack, stated to the NY Times that he thought this was “something of a gray area” but “comes out okay here.” https://www.nytimes.com/2024/10/20/us/politics/elon-musk-million-dollar-petition.html. To his mind, the prerequisite to be a registered voter is not the point of the payments, just an effort to limit the payments to a relevant target audience (people who might vote). He would view the timing of the program ending at exactly the same time as the Pennsylvania as mere coincidence or driven by independent considerations to build a get-out-the-vote database and then transition to GOTV operations. I don’t think these arguments hold any water. Many people have been imprisoned on much less clear “money for voter registration” schemes. The only merit these arguments have is that they point to some of the arguments that a defense lawyer might make to a jury in a criminal trial, and to arguments that the Supreme Court might seize upon in its ongoing effort to decriminalize bribery.
Musk Faces Real Prison Time if Convicted of Violating Sec. 10307(c)
So, assuming that I have persuaded you that Musk’s actions are illegal and that he would be likely to be convicted if charges were bought, the next question is what the penalties would be if he were convicted. Is this a slap on the wrist, pay a small fine sort of offense, or an actual “go to prison” big boy/girl felony kind of thing? If convicted, Musk would likely be sentenced to roughly 2 years in federal prison.
As a starting matter, when analyzing criminal liability, we should focus on the United States Sentencing Guidelines, not the statutory limitations. Sec. 10307 provides for punishment by up to 5 years imprisonment and up to $10,000 fines, but that simply sets an upper limit for each count — it doesn’t tell us much of anything about how a court would actually handle it. Instead, the Sentencing Guidelines determine how a court would likely sentence Musk if he were convicted.
Under the Sentencing Guidelines, sentences are determined by calculating an offense level, based on the crime and characteristics of the offender, victims, and roles in the offense, and then cross-referencing that with a criminal history category to get a presumptive sentence. Paying people to register to vote or to vote has a base offense level of 12, based on U.S.S.G. Sec. 2H2.1(a)(2). Soliciting or accepting payment has a base offense level of 6, but offering or making payment has a higher offense level of 12. Under Sec. 3B1.1(a), Musk would be subject to a 4-level increase for being “an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” Therefore, if convicted after a trial, he would likely be sentenced based on an offense level of 16, or an offense level of 14 if he pled guilty because of the standard 2 level reduction for acceptance of responsibility. U.S.S.G. Sec. 3E1.1(a).
Cross-referencing those possible offense levels against the lowest criminal history category produces a Guideline sentencing range of 21–27 months if convicted after a trial or 15–21 months if he pled guilty, with either sentence falling into Zone D, in which the Guideline sentence is to be served entirely by incarceration. The Guidelines thus would suggest a sentence of at least a year and a third after a guilty plea and about two years after a conviction at trial.
Musk might be sentenced outside that range if convicted. The Supreme Court has held that the Sentencing Guidelines are advisory in nature, not mandatory, and thus a judge does not need to follow the Guidelines in every case. United States v. Booker, 543 U.S. 220 (2005). Moreover, the Guidelines themselves provide judges authority to depart upwards or downwards from the Guidelines sentence if the specific facts of the case warrant exceptions. I could easily see a judge deciding that a massive registration buying operation backed by millions of dollars goes far beyond the usual registration buying scheme and warrants an upward departure. But even without a departure, the basic facts of the case suggest that Musk would likely be imprisoned for about two years if convicted after a trial of violating Sec. 10307(c). While a two-year carceral sentence is short compared to the enormous sentences often handed out for violent crimes and drug offenses, it is still a substantial punishment and would be life-altering for Musk — in addition to the collateral consequences of a felony conviction.
Despite the Obviousness of the Offense and the Likelihood of a Conviction and Substantial Sentence, the Department of Justice Is Highly Unlikely to Act before the Election
Based on all of this, it might seem startling that the Department of Justice has not already taken public steps to charge Musk with violating Sec. 10307(c). After all, just the website of his own organization lays out all the facts necessary to support a conviction, and the Department of Justice’s own policies describe this as clearly within the zone of cases where federal prosecution is important to deter future misconduct. However, the Department of Justice’s policies directly state that its role is not to intervene prior to the election, but rather to bring criminal actions after the election.
The Department of Justice has a general policy against bringing criminal charges that might influence an election in the period shortly before an election. With regards to specifically crimes involving elections, the Department has additional policy safeguards to make sure that its actions do not influence elections. Federal Prosecution of Election Offenses at 84. It views its primary role as remedial and punitive after the election, leading issues of curing a corrupted election to civil litigation and state processes in the first instance. Moreover, it places a high premium on avoiding injecting the investigation into the election itself. Political effects are a very real concern here, where investigating or charging Musk with a crime prior to the election could have a substantial and unpredictable effect on the election, whether to create a narrative of political persecution of supporters of Trump by the Biden Administration (as Trump would surely argue) or by accurately portraying the Trump campaign as crooked and engaged in pervasive criminal activity to subvert the electoral process. To ensure that election related prosecutions do not interfere with the electoral process, the Department of Justice creates additional internal procedural requirements, forbidding local U.S. Attorneys and FBI offices from performing even relatively preliminary investigations such as questioning witnesses without first consulting with the Public Integrity Section at Main Justice in DC. Id. at 80–83.
In light of these policies, it is extraordinarily unlikely that the Department of Justice will take any action in response to Musk’s criminal registration buying scheme prior to the election. While the idea that he can openly commit crimes to influence the election on a major scale without any response until after that criminal activity has had the opportunity to pay off is galling, in reality, the only effects that a public investigation could have prior to the election are to drive news about the offense. That could affect the election in either direction — indeed, Musk might even welcome that as an opportunity to claim that his supporters need to vote to prevent government overreach. Even if legal action were initiated, it’s hard to imagine it could accomplish anything before the program expires anyway at midnight tonight (Oct. 21, 2024).
Of course, this raises the additional specter that if Trump were to win the election, Musk might evade liability for his clearly criminal actions. Unfortunately, the only response to that is the only response to Trump’s generally lawless approach — we must defeat him soundly at the polls. Only then can we use the legal process to successfully punish misconduct around the elections. We should, however, make it clear that Musk is breaking the law by paying people to register. I doubt that his program will actually have a major impact on the election — it’s too easy for people who are already registered to claim much of the money and for people to register and sign the petition to claim the money but either not actually vote or even vote for Kamala Harris. But the electoral remedy for any effect it may have is the same as all the rest — work hard to turn out the vote for Harris and to win this election beyond the ability of the Trump faction to corrupt it.
