With the upcoming presidential election so close, both sides are looking to motivate voters who might otherwise sit out the Trump-Harris contest to come to their respective sides. Some of these recent attempts at inducements have just reached the limit of federal bans on vote buying, and it appears that Donald Trump supporter Elon Musk has just crossed it with his latest offer of free access to his conversations, but only to those who have voted in Pennsylvania.
Federal law has long prohibited making payments or making expenditures to induce voting, regardless of whether those inducements are limited to those who might vote for a particular candidate. The Justice Department’s Election Crimes Manual explains that the law has been interpreted broadly: “The bribe can be anything of monetary value, including cash, liquor, lottery chances and welfare benefits such as food stamps.” And it explains the reason for the ban: “Those who choose to vote have the right not to have the voting process diluted with ballots obtained through bribery; and that the selection of the nation’s leaders should not degenerate into a spending contest in which the victor is the candidate who can pay the most voters.”
In the past, these bans have lashed out at 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 switched to giving free ice cream to everyone, not just voters (a sure win for ice cream lovers under the legal voting age). Similarly, efforts to provide free pizza at the polls can’t be limited to voters, so if you’re hungry—but have already voted, plan to do so on Election Day, or are ineligible—you might want to beat an early voting line (except in Georgia) .
This election we are seeing more efforts to increase 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 in support of the First and Second Amendments. The strategy was legal because no one was paid to turn out to vote, although money was introduced into the process for leaders of likely Trump voters.
Closer to the line was Cards Against Humanity, which offered $100 payments to those who didn’t vote in 2020 and who wrote an excuse for not voting and created a voting plan. Paying someone to find out their polling place is approaching the limit, and the requirement to make a “voting plan” could lead people to believe they need to be registered to vote in order to get the money, even though the fine print was clear that voting was not required. (As I was writing this article, I see that Cards Against Humanity appears to have ended the program and all links to their promotion and terms of service now redirect to a page about the company suing Elon Musk over a land dispute and a promise to (that buying a special election set of their cards will go towards efforts to prove themselves to be blue-collar voters.)
Musk appears to have finally crossed the line on Tuesday evening when he wrote on X that: “Tomorrow night through Monday I will be giving a series of lectures throughout Pennsylvania. If you would like to attend one of my lectures, There is no entry fee. You just need to have signed our petition in support of free speech and the right to bear arms and have voted in this election.” He followed up with a post that said, “To clarify, you must have voted in Pennsylvania.”
Musk knows he’s offering something of value — note his reference to “no entry fee.” Tech entrepreneurs often give talks for money, and a ticket to see him is a thing of value under federal law. It is only offered to those who have voted, and therefore appears to cross the legal line.
It would be a bit like if Taylor Swift said there is no entry fee to get to one of her concerts, but you have to vote to get in. Concert tickets, lecture tickets, they’re all things of value (although some people might prefer Swift to 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 Ben & Jerry’s strategy and open his talks to voters and non-voters alike.
Now maybe we should get rid of these bans. Some states, like California, do not prohibit elections when there are no federal candidates on the ballot. It is OK to provide payment for voting as long as they are not contingent on how someone is allowed to vote. But then you can direct the incentives to areas where a campaign expects many supporters.
Some believe we should induce turnout by giving everyone raffle tickets as a way to get them to vote.
Some states are stricter than federal law: consider Georgia’s ban on giving water to voters within a certain distance of the polling place.
Regardless of the law on vote buying should bethe federal vote buying ban is clear enough. In the intense competition to get the unmotivated votes to the polls in the last few weeks before the election, I expect Musk will not be the last to step over line.