Elon Musk says he’s giving away $1 million a day to voters. Is that legal?

Elon Musk, the billionaire entrepreneur and campaign surrogate for former President Donald Trump, has given away $17 million to people who have signed a petition from his political action committee — despite a legal challenge to the sweepstakes that has now failed.

To win the money, the signee must be a registered swing state voter — and that criterion raised concerns that Musk may be in violation of a federal law that makes it illegal to pay people (or offer them an incentive) to either register to vote or cast a ballot.

“I think there’s a strong argument that there’s potential criminal liability here, so at the very least [the Department of Justice] should be investigating and should be warning people not to be doing this,” Richard Hasen, director of the Safeguarding Democracy Project at UCLA Law School, told Vox.

On Monday, however, Philadelphia Common Pleas Court Judge Angelo Foglietta ruled that the contest could continue. Philadelphia District Attorney Larry Krasner had alleged that the giveaway was a lottery in violation of Pennsylvania’s consumer protection laws. An attorney for Musk’s PAC argued that the contest is not a lottery, claiming that the winners are not subject to chance and that they are paid to be “spokespeople” for Musk’s PAC.

A spokesperson for Krasner’s office indicates that the city of Philadelphia may continue its litigation, though Musk’s PAC has said the contest will end on Election Day. “A lot of truth came out in court today, and it was jaw-dropping,” Dustin Slaughter, a spokesperson for Krasner’s office, told Vox. “Stay tuned.”

Krasner’s suit follows a complaint by public advocacy group Public Citizen filed with the Federal Elections Commission, which alleges that the contest violates federal campaign finance law because “the purpose of the $1 million reward for signing the petition appears to be to motivate voter registration and voting at the polls by those sympathetic with the candidacy of Donald Trump in the key swing states for the 2024 presidential election.” The DOJ also reportedly sent a letter to a lawyer for Musk’s PAC warning that the contest might violate the law. Neither the DOJ nor a representative for the PAC have commented publicly on the warning.

The program worked like this: Registered voters in Arizona, Pennsylvania, North Carolina, Georgia, Michigan, Nevada, or Wisconsin — all swing states that could go for either Vice President Kamala Harris or Trump come Election Day — could sign the petition, which claims to be a “Petition in Favor of Free Speech and the Right to Bear Arms” until Monday, October 21, which happened to be the voter registration deadline in Pennsylvania.

The petition was circulated by Musk’s America PAC, which has taken over much of Trump’s ground operation in key swing states. Musk has made Pennsylvania a particular focus of his personal outreach, hosting events there, including one in which he handed a woman in a Trump-Vance shirt a giant $1 million check.

Though the petition does not require signers to be registered Republicans, the focus on the First and Second Amendments does seem to appeal to potential Trump voters who fear Democrats will take away their gun rights and who subscribe to Musk’s idea of “free speech.” The net effect, then, is that Musk promised $1 million a day to a program aimed at getting pro-Trump voters registered in swing states.

Because his contest is only open to registered voters, there may be a case for it to be understood as an illegal financial incentive to get people to register to vote, as Public Citizen’s complaint alleges. One issue Musk faces, said David Becker, executive director of the nonpartisan Center for Election Innovation & Research, is that what constitutes payment for voting-related activity has been broadly interpreted in the past.

“This could involve anything of value,” Becker said. The law “has been applied to things like Ben & Jerry’s offering everyone who has an ‘I Voted’ sticker an ice cream cone on Election Day. They received a cease-and-desist letter and changed [the promotion to give] everyone a free ice cream cone on Election Day.”

There is some ambiguity in Musk’s promotion, compared to what Ben & Jerry’s offered, however. The uncertainty arises from the fact that Musk’s PAC is asking people to sign a petition for the chance to win $1 million, not explicitly rewarding them for registering to vote.

Daniel Weiner, director of the Brennan Center’s Elections & Government Program, told Vox that the issue at hand really comes down to whether entering a specific group of people in a contest if they sign a petition counts as paying people to register to vote.

“There’s certainly an argument that it is, [but] I think it’s hard to know for sure how to predict how this would play out in court,” Weiner said.

Democratic Pennsylvania Gov. Josh Shapiro called the contest “concerning,” shortly after it was announced in late October, and said it was “something that law enforcement could take a look at.” Thus far, the federal government hasn’t announced any investigation into the contest.

If indeed the Justice Department decided to pursue Musk, it would first send a cease-and-desist letter — just like the one Ben & Jerry’s received back in 2008. From there, he would have to decide how to respond; the penalty for breaking the law is $10,000 or a maximum of five years in prison.

But even if the DOJ decides to go after Musk for this — and there is no guarantee that it will — the issue likely won’t be resolved before November 5, in part to avoid any perception on the part of the federal government that the DOJ is meddling in the election.

“There are important norms around initiating investigations and legal proceedings in the runup to an election. Otherwise, they can potentially launch an investigation after the election, and whether they will is something that’s difficult to predict,” Weiner said. “I think that this is something whose legality will not be resolved before the election.”

Update, November 4, 6 pm ET: This story, originally published October 21, has been updated several times, most recently to include the result of the lawsuit filed by the Philadelphia district attorney.