Elon Musk seeks to take nearly $1 million lottery voter case to federal court after being ordered to appear at hearing in Philadelphia

PHILADELPHIA — A hearing is scheduled for Thursday morning after Philadelphia District Attorney Larry Krasner filed suit earlier this week against Elon Musk and his PAC of America for the tech billionaire’s $1 million donation to registered voters who sign a petition supporting the First and Second Amendments.

Krasner accuses Musk and the super PAC of running an illegal lottery and violating consumer protection laws in the battleground state of Pennsylvania.

However, in a filing late Wednesday night, Musk sought to have the lawsuit moved to federal court, arguing that the claims “are primarily based on the allegation that the defendants are illegally interfering in a federal election.”

This comes after the judge overseeing the trial moved a hearing on the case to 10 a.m. Thursday, extending it from Friday, according to an order. Philadelphia Judge Angelo Foglietta’s order on Wednesday states that “all parties must be present.”

Matthew Haverstick, one of several attorneys representing the defendants, declined to say Wednesday night whether Musk would attend the hearing.

Krasner, in the lawsuit, said America PAC and Musk “are in undisputed violation of Pennsylvania’s statutory prohibitions against illegal sweepstakes and are defrauding consumers.”

The lottery is open to people from the belligerent states who sign a petition supporting the Constitution.

“So we’re going to give away a million dollars every day until November 5th,” Musk said at a rally in Lancaster, Pennsylvania, on Saturday. “And also, all you have to do is sign the First and Second Amendment petition. Ready. You don’t even have to vote. It would be nice if you could vote, but you don’t have to. And then you basically sign something you already believe in and get a test to win a million dollars every day from now until the election.”

The filing specifically states “this is not a case” about whether or not Musk violated state or federal laws prohibiting vote buying.

But Musk’s filing on Wednesday notes the lawsuit’s repeated references to the upcoming presidential election. That includes Krasner’s claim that Musk and his PAC “set up their illegal lottery scheme to influence voters in that election.”

“The complaint, in truth, has little to do with state law claims of nuisance and consumer protection,” Musk’s attorney wrote in his filing. “Rather, although disguised in state law claims, the thrust of the complaint is to prevent by any means the defendants’ alleged ‘interference’ in future federal presidential elections.”

Federal law singles out anyone who “pays or offers to pay or accepts payment for either registering to vote or voting.” The penalty is a fine of not more than $10,000 or imprisonment for up to 5 years.

Krasner said he could still consider criminal charges, saying he has a duty to protect the public from both illegal lotteries and “interference with the integrity of elections.”

The latest filing claims any order in the case would “require judicial intervention in the conduct of an ongoing federal election” — a move they say is impermissible.

The filing comes ahead of a Thursday morning hearing in Philadelphia on the matter. The Philadelphia prosecutor’s office also asked the judge overseeing the case to “enhance security” for the hearing.

The Department of Justice sent a letter to Musk last week, warning him that the gift could violate federal law, a source familiar with the matter confirmed to ABC News. The letter from the Election Crimes Branch of the DOJ’s Public Integrity Section was sent to Musk’s PAC, the source said.

Several experts ABC News spoke with after Musk announced the offer said it occupies a murky area of law.

“I’ve gone back and forth,” Richard Briffault, a law professor at Columbia University Law School, told ABC News. “It clearly violates the spirit of the statute, but it’s not 100 percent clear to me that it violates the letter of the law.”

Other experts, such as Doug Spencer, a professor of election law at the University of Colorado, said “It really seems to be overstepping the mark.”

Both Trump and Harris have made repeated visits to the state as they battle for Pennsylvania’s 19 electoral votes.

Musk, who founded SpaceX and Tesla and owns X, has gone all out on Trump in this election, saying he believes civilization is at stake if he loses. He’s doing much of his get-out-the-vote effort for Trump through his super PAC, which can raise and spend unlimited amounts of money.

He has committed more than $70 million to super PACs to help Trump and other Republicans win in November.