With the upcoming presidential election so close, both sides are looking to motivate voters who otherwise might sit out the Trump-Harris contest to come to their respective side. Some of these recent attempted inducements have walked just up to the line of federal prohibitions on vote buying, and it looks like Donald Trump supporter Elon Musk may have just crossed it with his latest offer of free admission to his talks but only to those who have voted in Pennsylvania.
Federal law has long prohibited providing payments or making expenditures to induce voting, whether or not those inducements are limited to those who might vote for a particular candidate. The Department of Justice’s election crimes manual explains that the law has been interpreted broadly: “The bribe may be anything having monetary value, including cash, liquor, lottery chances, and welfare benefits such as food stamps.” And it explains the reason for the prohibition: “Those who choose to vote have a right not to have the voting process diluted with ballots that have been procured through bribery; and that the selection of the nation’s leaders should not degenerate into a spending contest, with the victor being the candidate who can pay the most voters.”
In the past, these prohibitions have tripped up civic-minded companies like Ben & Jerry’s, which in 2008 wanted to offer free ice cream to people who showed “I voted” stickers. After I pointed out the likely illegality of the scheme, Ben & Jerry’s shifted to providing free ice cream to everyone, and not just voters (a sure win for ice cream lovers under the legal voting age). Similarly, efforts to give free pizza at polling places cannot be limited just to voters, so if you are hungry—but already voted, plan to on Election Day, or are not eligible—you might want to hit up an early voting line (except in Georgia).
This election we are seeing more efforts to gin up turnout through payments to voters, but most of them have stayed on the legal side of the line. A few weeks ago, Elon Musk began offering payments of $47 for the referral of swing state voters who would sign a petition supporting the First and Second Amendments. The strategy was legal because no one was being paid to turn out to vote, even though money was being introduced into the process for leads for likely Trump voters.
Closer to the line was Cards Against Humanity, which offered payments of $100 to those who did not vote in 2020 and who wrote an apology for not voting and made a voting plan. Paying someone to figure out their polling place is coming close to the line, and the requirement to make a “voting plan” could make people think that they have to register to vote to get the money, even though the fine print was clear that voting was not required. (As I wrote this article, I see that Cards Against Humanity appears to have ended the program, and all the links to their promotion and terms of service now redirect to a page about the company suing Elon Musk for a land dispute and a promise that buying a special election set of their cards will go to efforts to turn out blue-leaning voters.)
Musk appears to have finally crossed the line Tuesday night, when he wrote on X that: “Tomorrow night through Monday, I will be giving a series of talks throughout Pennsylvania. If you’d like to attend one of my talks, there’s no attendance fee. You just need to have signed our petition supporting free speech & right to bear arms & have voted in this election.” He followed up with a post stating: “To clarify, you need have voted in Pennsylvania.”
Musk knows that he’s offering something of value—note his reference to “no attendance fee.” Tech entrepreneurs often give talks for money, and a ticket to see him is a thing of value under the federal law. It’s only being offered to those who voted, and therefore it appears to cross the legal line.
It would be kind of like if Taylor Swift said there’s no attendance fee to come to one of her concerts, but you have to have voted to get in. Concert tickets, lecture tickets, they are all things of value (even if some people may well prefer Swift over Musk if given a choice).
Violations of federal law can lead to imprisonment for a year or more or other penalties. We don’t know if Musk realized he’s breaking the law, but the simplest thing is for him to follow the Ben & Jerry’s strategy and open up his lectures to voters and nonvoters alike.
Now maybe we should get rid of these prohibitions. Some states, like California, do not have prohibitions for elections when there are no federal candidates on the ballot. It is OK to give payments for turnout, so long as they are not conditioned on how someone may vote. But then you can direct the incentives to areas where a campaign expects a lot of supporters.
Some think we should induce turnout by giving everyone lottery tickets as a way to get them to vote.
Some states are stricter than federal law: think of Georgia’s prohibition on providing water to voters within a certain distance to the polling place.
Whatever the law on vote buying should be, the federal vote buying prohibition is clear enough. In the intense competition for getting those unmotivated votes to the polls in these last few weeks before the election, I expect Musk won’t be the last one to step over the line.
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