During the 2024 elections, there was a question whether Elon Musk was breaking federal law in offering various incentives only to registered voters, including what was essentially a lottery open only to registered voters.
He’s up to similar gimmicks in the upcoming, very expensive Wisconsin Supreme Court race, promising, among other things as a prize for Wisconsin voters “who voted in the Supreme Court election” and attend his talk Sunday night “two checks for a million dollars each in appreciation for you taking the time to vote.”
The federal vote-buying prohibition does not apply when there are no federal candidates on the ballot, and, as I explained in my California Law Review article on vote-buying, states differ in whether or not they allow payments for turning out to vote. (California does, for example.) No state allows payments to vote for or against a particular candidate or ballot measure, and Musk doesn’t purport to do that.
Wisconsin law makes payment for turnout illegal. In particular, under section 12.11(1m)(a)(2), it is a crime to “offer[]…anything of value…to…any elector…in order to induce any elector to: (a) Vote or refrain from voting.” This is separate and apart from a prohibition on voting or refraining to vote “for or against any particular person.” (Thanks to Nate Ela for the pointer.)
I haven’t yet researched Wisconsin caselaw applying the provision. But Musk’s activities appear to violate the plain meaning of the statute. He’s offering a chance to win a million dollars, with is a thing of value, and it’s only offered to people who have voted. One might say he’s not inducing people, but instead rewarding them. I don’t think this helps, because the statute likely covers rewarding as well—think of people who decide to vote in order to attend the talk for the lottery chance to win a million dollars.
I wrote at Slate yesterday about how the psychological barriers to the superwealthy trying to convert their economic power into political power seem to have collapsed. Musk is leading the charge, but he’s unlikely to be the only one. At the least officials can go after the outright illegality.
Officials may not go after him. DOJ sent him a warning letter in the 2024 election season, but Trump’s DOJ certainly won’t prosecute him. And he got a ton of free publicity. So this may work out well for Musk. But that doesn’t make it legal.
Update: So far I’ve found very little caselaw on this section of Wisconsin law. Here’s a 2009 appellate case, State v. Huff, with different facts but a broad understanding of the prohibition. There is also this 1950 Wisconsin AG opinion, which finds that “I voted” buttons are so de minimis as not to violate the predecessor to this statute.
