Taking "Offers to Pay for Registering" Seriously (Probably a Mistake)

Mark Tushnet

Perhaps mistakenly (because almost certainly the pro-Musk/Trump side isn’t really concerned about legal details), in trying to think about the X flap over Musk’s lottery offer, I began to wonder about the possibility of a difference between lay and lawyers’ ways of interpreting statutes. Here, with excisions, is the relevant language: 52 U.S.C. 10307(c): “Whoever knowingly or willfully … pays or offers to pay … for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both…” I’m pretty sure that the “controversy” isn’t over whether giving someone a ticket to a lottery counts as “payment”: in lawyers’ terms, and probably in lay terms, it’s something of value (you could sell your lottery ticket to another sucker and buy a candybar).

So, the “controversy” is over the meaning of the words “for” and “offer.” “For” first: Suppose you announce that starting tomorrow you’ll pay any registered voter $5. The day after tomorrow someone comes up to you and shows you a voter registration card dated tomorrow (that is, after the voter learned of your offer). You give her $5. Have you paid her “for” registering? I’m pretty sure that most lawyers and lay people would say, “Yes.”

The next person in line shows you a voter registration card dated three years ago (and still valid). You give her $5. Have you paid her “for” registering? Or, have you paid her for having registered? And is paying someone for having registered where the person had no expectation of payment at the time of registration covered by the statute, that is, the same thing as paying someone for registering after knowing of the offer of payment? If there’s a good faith disagreement here, it’s that many lawyers are comfortable in saying that paying someone for having registered, without expectation of payment, is covered by the statute and many lay readers think the difference between having registered without such expectation and registering after learning of the offer matters.

Does “offer” matter? Suppose Musk says to the person who registered three years ago, “Sorry, you’re not covered by my offer,” and gives $5 to the other person. I’m pretty sure that most lawyers and lay people would say that Musk construed his words as an “offer to pay” people “for” registering. What if he said to the one who registered after learning of the offer, “Sorry, you’re not covered by my offer.” I’m reasonably confident, though not quite sure, that most lawyers and lay people would say that he hadn’t offered to pay people for registering. That is, in this context both groups would distinguish between “for registering” and “for having registered.”

Finally, what if Musk says, “I don’t care when you registered, you each get $5.” Was his initial offer, which didn’t specify when the registration occurred, an offer to pay for registering? My guess is that this is where the lawyer-lay divide kicks in (if it does in good faith). Many lawyers would say, “Of course this is an offer to pay for registering—at least as long as there’s even one person who registers after learning of the offer and seeks payment. And (if it matters) we think it probably would be OK for the burden to be placed on the defendant to show that no such person existed.” If there is good-faith lay disagreement, it’s because lay readers think that you’re not offering to pay someone for registering if (lots of) people fall within the offer’s coverage even though they registered before the offer was made.