Elon Musk’s PAC is paying Wisconsin petition signers before Supreme Court election. Is it legal?

Days before a hotly contested Wisconsin state Supreme Court election, billionaire and White House adviser Elon Musk announced that he will give a talk in Wisconsin Sunday night and pay two voters $1 million.

"Entrance is limited to those who have voted in the Supreme Court election," stated the early morning March 28 X post. "I will also personally hand over two checks for a million dollars each in appreciation for you taking the time to vote."

Hours later, Musk deleted the post, perhaps out of legal concerns, and reverted to a previous payment offer.

"To clarify a previous post, entrance is limited to those who have signed the petition in opposition to activist judges," Musk wrote. "I will also hand over checks for a million dollars to 2 people to be spokesmen for the petition."

Wisconsin election law experts raised concerns about offers by Musk’s PAC to pay voters to sign petitions rejecting "activist judges," though some said it could be a gray area since it didn’t expressly tell them to vote. Musk saying that he would pay two people for "taking the time to vote" raised more serious red flags, they said.

"That almost certainly violates Wisconsin’s election bribery statute, which prohibits giving or offering anything of value to induce someone to vote," said Bryna Godar, staff attorney at the State Democracy Research Initiative at the University of Wisconsin Law School.

Wisconsin Attorney General Josh Kaul, a Democrat, issued a statement after Musk’s post to award $1 million to two people, saying "we intend to take legal action today to seek a court order to stop this from happening."

Technically, the state Supreme Court race is nonpartisan, but the outcome will determine whether the court maintains its current 4-3 liberal majority or flips conservative. President Donald Trump endorsed conservative Waukesha County Judge Brad Schimel, who faces liberal Dane County Judge Susan Crawford. Former President Barack Obama urged voters in a March 25 X post to vote for Crawford. 

Musk supports Schimel. Musk’s America PAC said March 20 it will pay Wisconsin voters $100 if they sign a petition rejecting "activist judges" or refer another voter to sign it by April 1, the election date. About a week later, Musk announced that his political action committee paid $1 million to a voter who signed the petition, reviving a strategy he used in the presidential race. The committee posted a video of the voter, Scott Ainsworth from Green Bay, saying, "Everyone should do what I did; Sign the petition, refer your friends, get out and vote early for Brad Schimel."

Wisconsin campaign records show that Musk and his groups — America PAC and Building America’s Future — have spent about $20 million to support Schimel, wrote the Milwaukee Journal Sentinel, PolitiFact’s Wisconsin partner. 

One of Musk’s companies is involved in a Wisconsin lawsuit. Electric car company Tesla, where Musk serves as chief executive officer, filed a civil lawsuit in Wisconsin seeking an exemption from a state law that prohibits manufacturers such as Tesla from selling their vehicles directly to consumers unless they meet certain conditions, the Journal Sentinel reported.

America PAC spokesperson Andrew Romeo declined to comment on questions about how many people have been paid for signing the Wisconsin petition.

Wisconsin law banning election threats says no one can "compel, induce, or prevail upon an elector" to vote for or against a candidate. And the state’s bribery law says it is illegal to give "anything of value" in excess of $1 to convince electors to vote for or against a candidate. The petition does not name any candidates on the state’s April 1 ballot.

The petition says, "Judges should interpret laws as written, not rewrite them to fit their personal or political agendas. By signing below, I'm rejecting the actions of activist judges who impose their own views and demanding a judiciary that respects its role — interpreting, not legislating."

The label "activist judges" is commonly used by partisans who disagree with a judge’s rulings. Schimel has used the label to refer to Crawford. 

Michael Maistelman, a lawyer who often represents Democrats and who donated $250 to Crawford in July, said even though the $100 payment is ostensibly for petition signing, the context raised concerns about whether it violates state law.

But Maistelman said Musk’s offer about paying voters was a more blunt message.

"It’s my belief that Musk’s offer of allowing people to come to an exclusive event with him as well as the financial incentive of being able to win a million dollars if they go vote violates," Wisconsin laws about inducement and bribery, Maistelman said.

Musk’s offer to pay people who had voted appeared to violate the plain meaning of Wisconsin statute, wrote Rick Hasen, UCLA election law professor.

"One might say he’s not inducing people, but instead rewarding them," Hasen said. "I don’t think this helps, because the statute likely covers rewarding as well — think of people who decide to vote in order to attend the talk for the lottery chance to win a million dollars."

Kevin Kennedy, Wisconsin’s chief election official from 1983 until 2016, told PolitiFact that although many people appear to find the petition payments "distasteful," the payments do not violate Wisconsin’s bribery statute. (Kennedy said he has no partisan affiliation.)

The Musk PAC payments are not a quid pro quo in which voters are paid in exchange for voting for Schimel, said Kennedy, who now serves on the board of The Center for Election Innovation and Research, a nonprofit that works with election officials.

"Because it is a criminal statute there can’t be any ambiguity because you would have to prove beyond reasonable doubt" that bribery occurred, Kennedy said.

The payment for petition signing is a method for Musk’s PAC to create a list of voters it can use for voter outreach, Kennedy said. 

"If you get $100 you agree to take texts, voicemails and fliers," Kennedy said. "What they are really doing is building a voter list."

However, Kennedy said Musk’s offer to hand out checks in appreciation of voting was a closer call.

"$1 million dollars is a pretty significant inducement," Kennedy said. "We used to encourage doughnut shops not to offer free doughnuts or free coffee when people showed up with an ‘I voted sticker.’"

Giveaways to voters far less than Musk’s offer have drawn objections in the past. In 2000, Connie Milstein, a long-time Democratic donor from New York, and some colleagues offered to give homeless men in Milwaukee a ride to pick up an absentee ballot. At some point, about 10 men were given a pack of cigarettes each.

Republicans objected and sought criminal charges. Months later, after an investigation, Assistant District Attorney Kurt Benkley said he didn’t think the evidence proved anyone was guilty. In May 2001, Milstein agreed to pay $5,000 in a civil forfeiture, a legal term that admitted no guilt and closed the case. 

Milstein’s lawyer Stephen Glynn told PolitiFact  in 2014 that there was no evidence of a quid pro quo (a smoke for a vote).

"No one said that, ‘If I went to vote, I would receive cigarettes,’" Glynn said.

PolitiFact Researcher Caryn Baird contributed to this article.

RELATED: PolitiFact Wisconsin’s fact-checks of Susan Crawford, Brad Schimel and the state supreme court race