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

EXPLAINER

Experts uncertainty that Musk volition beryllium prosecuted — adjacent though helium mightiness beryllium violating predetermination laws.

Social media exploded this week with the quality that billionaire entrepreneur Elon Musk volition clasp a $1m regular lottery for registered voters successful battleground states who motion his petition supporting escaped code and the Second Amendment.

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

To suffice for the lottery, petition signers indispensable beryllium registered to ballot successful Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania oregon Wisconsin, the 7 states wide viewed arsenic battlegrounds successful the 2024 statesmanlike election. Musk’s America PAC (political enactment committee) said it had already fixed retired the archetypal 2 $1m cheques to Republican voters who had already formed their ballots by mail, media outlets reported.

“I deliberation it’s thing that instrumentality enforcement could instrumentality a look at,” Pennsylvania’s Democratic Governor Josh Shapiro said connected October 20 connected NBC’s Meet the Press programme.

Some predetermination instrumentality experts, including Richard Hasen of the University of California, Los Angeles, said Musk’s gambit could tally afoul of 52 USC 10307(c), a national instrumentality that says whoever “pays oregon offers to wage oregon accepts outgo either for registration to ballot oregon for voting shall beryllium fined not much than $10,000 oregon imprisoned not much than 5 years, oregon both”.

The Campaign Legal Center, a nonpartisan radical that advocates for voting rights and run concern oversight, released a statement, saying, “It is amerciable to bargain votes, it is amerciable to bargain elector registration, and the Department of Justice has the powerfulness to enforce these important laws done civilian oregon transgression action.”

Although the Justice Department has the powerfulness to bring a transgression case, ineligible experts accidental it is highly improbable Musk would beryllium prosecuted, and surely not earlier Election Day 2024.

The law’s enforcement could autumn either to the Federal Election Commission oregon the Justice Department.

The FEC “can reappraisal whether determination is simply a civilian oregon transgression violation”, said Jerry H Goldfeder, elder counsel with instrumentality steadfast Cozen O’Connor. “Such a substance usually takes months and months, starting with an interior determination to unfastened the matter, and past presenting Musk with an accidental to respond.”

And that is simply a best-case script for timing. In reality, FEC enforcement has been hobbled for years due to the fact that its members are divided betwixt governmental parties, making it hard to scope the bulk required to prosecute enforcement.

The Justice Department could enactment earlier waiting for an FEC referral, but this poses prosecution challenges, too, experts said. Deciding whether to motorboat a Justice Department prosecution is simply a dilatory process, Goldfeder said.

And Musk’s lawsuit would beryllium unusual, without a way grounds of successful, akin prosecutions oregon a playbook for however to equine them.

History suggests that a lawsuit specified arsenic this would person a debased likelihood of prosecution, said Stanley Brand, a longtime Washington, DC, lawyer successful governmental cases who presently serves arsenic a distinguished chap astatine Penn State Law.

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

Citing the pushback Special Counsel Jack Smith has faced successful attempting to rapidly bring cases to proceedings against erstwhile President Donald Trump, Brand said helium doubts a prosecution of Musk “would wage a precocious percent instrumentality to engage”.

Finally, prosecuting Musk would lone beryllium imaginable if Kamala Harris wins the statesmanlike predetermination and the lawyer wide she appoints decides to prosecute it. If Trump wins, helium astir surely would name idiosyncratic who does not bring the lawsuit against 1 of his closest allies.