Elon Musk’s America PAC has offered $47 to all registered voters in Arizona, Michigan, Nevada, North Carolina, and Wisconsin, and $100 to registered voters in Pennsylvania, for signing a petition that “pledg[es] . . . support for the First and Second Amendments.” Is this offer legal?
Payments for petition-signing as such violate no federal law. Some commentators have argued, however, that Musk is, in effect, paying people to register to vote. Under 52 U.S.C. § 10307(c), payments for registering to vote (as well as payments for voting) are illegal. That subsection provides, “Whoever knowingly or willfully . . . 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.”
The key question, then, is whether Musk is offering to pay people for signing the petition or for registering to vote. The offer on its face pays people for signing the petition, but it is an offer that is open only to registered voters. Thus, for someone who is not yet registered to vote to receive the money, he must first register. Even new registrants, however, will receive the money only if they take the additional step of signing the petition. Thus, registering to vote is never a sufficient condition for receiving the money, and registering to vote is not even a necessary condition for the vast majority of the people eligible for a payment. For the millions of people who have already registered to vote, the payments are unquestionably legal. They are being paid to sign the petition, and they need not do anything other than sign the petition to receive the money. For the vast majority of people eligible to participate, therefore, it is clear that the payments are for signing the petition and not for registering, as they do not need to reregister to be able to receive the money. Those facts suggest that the offer is for signing the petition rather than for registering to vote, and that it is therefore legal.
On the other hand, the petition expressing support for the First and Second Amendments is so vague and ineffectual—it is not, for example, a petition to put a certain measure on the ballot or even to express opposition to any particular laws limiting rights to speak, to practice religion, or to bear arms—that one could reasonably suspect that collecting signatures is not Musk’s primary objective. Rather, one might surmise that the point is to increase voter registration and ultimately votes in this year’s election. Furthermore, Musk’s offer expired on October 21, which was Pennsylvania’s voter-registration deadline, and the offer is limited to voters in the swing states that will decide the presidential election. The timing of the deadline, the offer’s geographic limitation, and its limitation to registered voters might suggest that Musk’s purpose in offering the money is to attract new registered voters in swing states—particularly voters who would be willing to pledge to support the First and Second Amendments, and who could be expected disproportionately to vote for former President Trump.
Does it matter what Musk’s primary objective is? Perhaps. The statute prohibits payments “for registration to vote” and surely that statute encompasses offers that are formally payments for something else but are really payments for registering. Consider, for example, an offer—open only to registered voters—to pay $100 to persons who agree to take a deep breath of the crisp autumn air. Such sham offers would be illegal because we would conclude that the payments are really “for registration to vote,” even if formally structured otherwise. An offer of a $100 rebate to purchasers of Teslas, on the other hand, would not likely be “for registration to vote,” even if the rebate were available only to registered voters, because the payment would require something significant of the recipient; it would be a payment for buying a Tesla.
The only plausible argument that the offer is illegal relates to the payment of money for people who have not yet registered to vote, but who are willing to do so to qualify to sign the petition. For those people, the payment is available only if they first register and then sign the petition. One could argue, then, that the petition (like the hypothetical deep-breath-of-air offer) is a sham and the payments to those people are really “for registration to vote.” But given that the offer is not limited to new registrants, any potentially illegal applications of the offer will be a small fraction of the total payments that will be made. The vast majority of payments are unquestionably legal. Thus, the offer, at least for the most part, is what it purports to be: a payment for signing a petition.
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