Musk tries to move case about $1 million voter sweepstakes to federal court, averting required appearance Thursday

By Marshall Cohen, CNN

Philadelphia (CNN) — Tech billionaire and Trump ally Elon Musk is trying to move a lawsuit over his $1 million giveaway to voters into federal court, short-circuiting a required appearance Thursday at a Pennsylvania court.

Lawyers for the Tesla CEO filed a “motion of removal” in federal court late Wednesday night. Pennsylvania Judge Angelo Foglietta said at a brief hearing Thursday that he no longer has jurisdiction over the case, at this time, because of Musk’s filing.

The parties will now continue pressing their case in federal court. Foglietta said he’s available later Thursday or Friday if the federal judge sends the case back to state court.

Philadelphia District Attorney Larry Krasner, who filed the original lawsuit against Musk, will have an opportunity to argue that the case should be sent back to Pennsylvania court. At the center of the legal battle is a daily $1 million sweepstakes that Musk’s pro-Trump super PAC, called America PAC, is offering to registered voters in battleground states.

Further, Musk’s lawyers claim the issues in Krasner’s lawsuit “raise significant questions of federal law that are within the exclusive province” of the federal court system.

During the hearing Thursday, the judge challenged the Philadelphia prosecutors on their theory that Musk’s giveaway is an illegal lottery in violation of state law.

Foglietta pressed them on the fact that they mentioned the integrity of the 2024 election in their lawsuit, even though they are only arguing that the sweepstakes violates state gaming laws and doesn’t mention any violation of any election laws. He also noted that the lottery is “open to all registered voters” – not just Republicans or Trump supporters.

John Summers, representing the DA’s office, said it “was both cowardly as well as irresponsible” for Musk to avoid showing up at the hearing by moving the case to federal court, which, he noted, they did “on mischief night,” the night before Halloween.

“Brazenly, America PAC continued its unlawful lottery,” Summers continued. “They awarded a lottery winner this morning.”

Musk’s lawyers said they would resist any future effort to force him to show up and blasted Krasner for bringing the lawsuit in the first place.

“We all know that he is a very busy man who cannot just materialize anywhere he wants to with 12 hours’ notice,” Musk lawyer Matthew Haverstick said, eliciting a quip from Summers that Musk “owns SpaceX” and has access to private planes and rocket ships.

Haverstick accused Krasner of naming Musk as a defendant only “as a publicity stunt” and brought the case “to create a circus atmosphere.” The super PAC, which is giving out the million-dollar prizes, “is the only correct defendant,” Haverstick said.

Last-minute legal gambit

Musk’s lawyers claimed in their late-night filing that the issues in Krasner’s lawsuit “raise significant questions of federal law that are within the exclusive province” of the federal court system.

“The Complaint, in truth, has little to do with state-law claims of nuisance and consumer protection,” Musk’s lawyers wrote in their new federal filings. “Rather, although disguised as state law claims, the Complaint’s focus is to prevent Defendants’ purported ‘interference’ with the forthcoming Federal Presidential Election by any means.”

In Krasner’s lawsuit, he offered a prebuttal to Musk’s argument, saying, “this is not a case about whether Defendants have violated state or federal laws prohibiting vote-buying” and argued that this is a state matter because Musk was “indisputably violating Pennsylvania’s statutory prohibitions against illegal lotteries and deceiving consumers.”

This is the first time Musk’s legal team has responded to the allegations he is running a potentially illegal lottery and improperly influencing the 2024 election. Lawyers for the super PAC said in the filing that all of its spending on the presidential race is “legally protected expenditures and political speech.”

“Musk has the right to remove this to federal court if there is jurisdiction, but with removal comes delay,” said Derek Muller, an election law expert at Notre Dame Law School. “This essentially restarts the process, and puts this in front of a new court, with a new judge, to take a fresh look at it. So it has the benefit – for Musk – of slowing things down.”

Muller, a CNN contributor, added that it’s “probably a longshot, but not impossible” for Musk to keep the case in federal court – and said the federal judge assigned to the matter “will want to decide this as quickly as possible, given the election.”

Enhanced security and online vitriol

Krasner had also asked the court on Wednesday to “enhance its security,” saying he was doxed by Musk’s supporters and is facing “antisemitic attacks” on Musk’s social media platform.

One post from the Musk-owned X platform, formerly Twitter, that Kranser flagged to the court said: “what’s the Jewish population of Pennsylvania? Weird how they end up in every position of consequence every single time.” The post mentioned Krasner and Pennsylvania Gov. Josh Shapiro, a Democrat who is also Jewish and criticized Musk’s giveaway.

Musk has defended his daily sweepstakes, which is being run by his pro-Trump super PAC. Musk endorsed Trump in July and has donated $118 million to his super PAC. Despite the lawsuit – and a separate warning from the Justice Department that the sweepstakes might violate federal election laws – the PAC is still naming daily winners.

This story has been updated with additional developments.

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