Elon Musk misses Philly court date, stalling ‘illegal lottery’ case against him − an expert on Philadelphia politics weighs in

On Oct. 28, 2024, just over a week before Election Day, Philadelphia District Attorney Larry Krasner filed a civil lawsuit against Elon Musk to stop his US$1 million voter sweepstakes from continuing in Pennsylvania. Musk, through his America PAC, has been giving $1 million to registered voters in key battleground states who pledge their support for the First and Second amendments. According to the America PAC Petition page, at least 13 people have been awarded $1 million through the giveaway – four of them in Pennsylvania.

The first hearing in the case was scheduled for Oct. 31, 2024, before a Philadelphia County Court of Common Pleas judge, but Musk did not show up, and his lawyers requested the case be moved to federal court instead.

The Conversation U.S. asked Richardson Dilworth, a professor of politics at Drexel University, to explain what’s known about the lawsuit and whether it could make any difference in the election outcome in Pennsylvania.

What do we know about the lawsuit?

Krasner is accusing Musk and his pro-Trump America PAC of running an “illegal lottery” in Philadelphia and throughout Pennsylvania.

To be eligible to win the $1 million giveaway, a person must be a registered voter in one of seven swing states and sign a “petition” pledging their support for the First and Second amendments to the U.S. Constitution – which protect freedom of speech and the right to bear arms, among other rights. Participants can also receive $47 for each registered voter they refer who signs the petition.

It is a federal crime to pay people to register to vote, and the Department of Justice warned Musk and his America PAC that the giveaway could result in a criminal investigation. But it was just a warning – the federal government has not taken any legal action.

Pennsylvania, one of the seven swing states where the giveaway is offered, does not make it illegal to pay people to register to vote. So state officials, including county district attorneys such as Krasner, can’t sue Musk or his PAC on that basis.

But Pennsylvania does have laws that govern lotteries operating in the state. And Krasner is claiming that Musk and America PAC are running what amounts to a lottery, and that it is an illegal lottery because it violates state regulations that govern lotteries.

Musk’s lawyers filed to move the case to federal court. But the federal district judge it was temporarily assigned to could decide to send it back to state court. The Washington Post reported that it’s not immediately clear when the next hearing will be.

Is paying Philadelphians cash to get them to vote or register to vote unheard of?

Not really. For example, the Philadelphia Citizen, a news and opinion website, held lotteries for voters in 2015, 2017 and 2021. Prizes ranged from $1,000 to $10,000.

The Citizen created the lottery not to help any particular candidate but as an experiment in simply encouraging Philadelphians to vote – particularly in odd-year city elections when voter turnout tends to be the lowest. Based on the terms and conditions, which can still be found on their website, the Citizen appears to have been more careful than Musk was in following state law.

As for Musk’s America PAC giveaway, details of how it works – including how winners are selected – are murky. The terms and conditions do not appear to be anywhere on the PAC website, and I couldn’t find anything on the X accounts of Musk or the America PAC either. If Musk has published them anywhere, they’re not easy to find.

Besides the Citizen’s lottery, another similar practice that’s common in Philadelphia during election cycles is when Philadelphia’s party officials – ward leaders and committee people – are given “street money,” also called “Election Day money” or “Get-out-the-vote money.”

The money comes from different levels of the Democratic Party – from Philadelphia’s Democratic City Committee to presidential nominees. The funds are meant to encourage local partisans to get out the vote for chosen candidates, which ostensibly also encourages people to register to vote. The party workers can do whatever they want with the money – it’s intended as a stipend for their efforts.

Even though the sums of money given to these folks is relatively small, typically a few hundred dollars apiece, it can add up given there are roughly 3,500 Democratic and Republican committee people.

This is not a lottery, and money is not directly being given to people to register to vote or to vote at all. It is given to people whose job includes trying to get people to register to vote if they are likely to support specific candidates. But Musk’s America PAC giveaway also doesn’t actually pay people to register to vote, but rather makes voter registration a requirement of eligibility.

Finally, it is not uncommon for stores in Philly to give away things like coffee or donuts to people who come in with an “I voted” sticker. This practice is ostensibly paying people to vote, though it’s one no one seems to care much about.

Why is this case being filed in Philly and not another part of the state, or another state?

I’d argue it has a lot to do with Krasner’s personality.

Krasner has a higher national profile than most district attorneys. His election received national attention because he is probably the city’s most liberal district attorney ever elected, and he received support from national PACs, including one affiliated with George Soros, a billionaire donor associated with liberal causes.

Also, Pennsylvania is arguably the most crucial swing state and one very likely to be decided by the thinnest margin. Both campaigns are desperate to win Pennsylvania.

There is no evidence that I’m aware of that Krasner is acting as a partisan. There certainly seems to be legitimate legal grounds for his complaint. However, if he is successful, it would likely benefit Democrats.

Could the lottery or its injunction actually sway the election?

The lawsuit states that America PAC has received over 280,000 signatures from people who are registered voters in Pennsylvania. It’s not clear how many of those people were already registered to vote.

But even if the lottery increases voter registration in the state, it might not make a difference in terms of how Pennsylvanians vote or even whether they vote. If a person is persuaded to register to vote only because someone paid them, will they be motivated to spend the time and energy to go to the polls?

Also, the Krasner suit alleges that the lottery winners have disproportionately been people who signed up at Trump rallies – an argument for why he believes it’s deceptive. Krasner’s complaint contends that it’s a violation of consumer protection because “though Musk says that a winner’s selection is ‘random,’ that appears false because multiple winners that have been selected are individuals who have shown up at Trump rallies in Pennsylvania.” So, if the lotteries have been juicing enthusiasm among people who were already going to vote for Trump, they won’t have much impact on the actual election outcome.

It’s also possible that the lottery and petition signatures are not about the 2024 election but about collecting lists of names and other information about potential voters that can be sold or otherwise used for future elections. Krasner’s complaint mentions that the lottery and petition are collecting personal information.

As for the possible injunction, the next hearing has not yet been scheduled. With Election Day so near, and so many votes already cast, it’s hard to imagine that halting the giveaway now would have a notable impact anyway.

But given the likely very small margin of victory – Biden won Pennsylvania in 2020 by a little over 80,000 votes – even small shifts in voter outcomes can alter the outcome.