Wisconsin would benefit from legislation similar to California’s SB 398

Text of SB 398: https://calmatters.digitaldemocracy.org/bills/ca_202520260sb398

In the case of Josh Kaul v. Elon Musk, Kaul was in the right, since Wisconsin sweepstakes law is narrowly tailored to allow only certain kinds of sweepstakes. Sweepstakes about elections or raising awareness of political issues are not allowed. However, Wisconsin’s Supreme Court voted unanimously against Kaul, showing their reluctance to follow what Wisconsin’s law says when the situation is politically charged.

It is easy to make plausible speculations about their motives. The justices aligned with the Democratic Party would have been reluctant to rile up Republicans voters, who might interpret a decision in favor of Kaul as politically motivated lawfare. The justices aligned with the Republican Party may have been concerned with upsetting the Republican aligned donors needed for the upcoming Supreme Court races.

However, the dates of the filings at https://wscca.wicourts.gov/appealHistory.xsl?caseNo=2025AP000647&cacheId=948FE40E91BDA8483DCADC205D0A345D show that Kaul’s attempt was made at the last minute. He could have done more against Elon Musk’s illegal election lottery earlier on and maybe he would have been successful.

It is also worth considering that he could have tried pursuing it differently. Kaul and other public officials would have been within their authority to secure a warrant. The case would have been a criminal one, as Wisconsin v. Elon Musk instead of Josh Kaul v. Elon Musk.

Musk could have been charged with a misdemeanor for running an illegal lottery, and the prize money could have been confiscated. There is a discussion of Wisconsin’s lottery law in a previous post, https://doorcounty.substack.com/p/we-can-publicize-games-but-not-your-lotteries-1950, and also in a legal filing form a group suing him, https://www.lawforward.org/wp-content/uploads/2025/06/No.-004-Summons-and-Complaint-6.18.25_Redacted.pdf#page=37.

If someone with an ordinary degree of stature and wealth tried to run a $1 million lottery in order to profit from it, arresting the perpetrator wouldn’t have been an issue. But prosecutors are usually cautious when they aren’t sure what juries will do. The defense attorneys would have found examples of non-profit organizations which have had raffles without being prosecuted despite openly breaking the law on illegal lotteries. It is also likely that any jury will include some Republicans, and if the defense lawyers argue that the defendant is being politically targeted due to his leadership as a Republican activist and donor, it may be impossible to secure a conviction.

Because of the difficulties in securing a criminal conviction for an illegal lottery involving politics, and the current reluctance of the Wisconsin Supreme Court, it makes sense to pass a bill similar to California’s SB 398.

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