Alt text: American flag, hands placing ballots in voting box
Michael Conklin*
Introduction
Texas Lieutenant Governor Dan Patrick put out a press release stating, in relevant part, “[S]tarting today [I] will pay up to $1 million to incentivize, encourage and reward people to come forward and report voter fraud. . . . Anyone who provides information that leads to an arrest and final conviction of voter fraud will be paid a minimum of $25,000.”[1] This Article analyzes whether Patrick’s statement constitutes an offer that contractually obligates him to pay in the event that someone accepts by completing the requested action. Additionally, the potential existence of whether this statement constitutes a campaign finance violation is considered.
Definiteness
Under contract law, an offer must be reasonably definite as to the terms and requirements or contain provisions that provide certainty.[2] However, “[i]t is not required that all terms of the agreement be precisely specified, and the presence of undefined or unspecified terms will not necessarily preclude the formation of a binding contract.”[3]
Patrick’s press release is fairly definite. It explicitly states the maximum amount to be paid out,[4] the minimum payment for each reported incidence,[5] and the standard for what counts as a valid acceptance.[6] However, there are still some details left unclear. For example:
- What is the standard for determining who receives the minimum $25,000 reward and who receives more?
- How does one notify Patrick that he accepted the offer by performance and is therefore entitled to the reward?[7]
- What exactly constitutes “voter fraud”?
- Would an example of illegal voter suppression and/or intimidation suffice?
- Is the reward money paid by Patrick himself or from state funds?[8]
While there are some incidental aspects not made definite by the press release, they are likely not fatal to the formation of a contract in this case. Courts routinely fill in missing terms of contracts,[9] and the essential terms are present in the press release.
Reasonableness
To determine whether an offer to contract was made, a court will apply an objective theory of intent.[10] This requires a court to find that if a reasonable person reading Patrick’s press release could conclude that he manifested an intent to be bound, then a legal offer was made.[11]
Patrick announced his reward on Twitter the same day.[12] One could likely argue that the medium of Twitter and the short nature of tweets should not be taken seriously as an offer involving a $1 million deal. But the same cannot be said of the over 500-word press release. It is an official-looking and professionally drafted press release that has been posted on Dan Patrick’s website since November 10, 2020.[13] It contains no jokes or hyperbole that would indicate the announcement is made in jest and not to be taken seriously. The fact that the announcement was made by a lieutenant governor also strengthens the likelihood of it being viewed as legitimate. It is reasonable for a reader to assume that a lieutenant governor is both serious when he makes such statements and that he has the means by which to pay such rewards.[14] The title of the press release even explicitly refers to it as an “offer.”[15]
A stingy Patrick could nevertheless attempt to not pay on the grounds that a reasonable person would not construe the press release as a legitimate offer. He could argue that a reasonable person would ascertain that it does not make sense for Patrick to be willing to pay $25,000 just because someone turned in a single person who illegally voted. After all, a few people reporting single incidences of voter fraud in an election with over 150 million votes would not change the outcome. Additionally, Patrick could point to the very press release in question, which explicitly states, “In Texas we know voter fraud is real. In just the last 60 days, we have had three major arrests on voter fraud. . . .”[16] This further strengthens Patrick’s argument that a reasonable reader would realize that Patrick would not be willing to pay $25,000 for evidence of something that is already—by his own admission—well known.
Patrick could also point to examples of how others have interpreted his press release in an effort to support the defense that a reasonable person would not believe it was a serious offer. For example, Pennsylvania Lieutenant Governor John Fetterman attempted to collect the reward in a tweet that appears to be only in jest.[17] After identifying someone in Pennsylvania arrested for voter fraud, Fetterman asked for his reward money to be in the form of “Sheetz gift cards” and concluded by stating, “The Cowboys blow.”[18]
Patrick could also attempt to use media coverage of the press release to argue that the reporting of a single incidence of voter fraud is not enough to constitute performance. A CBS affiliate referred to the reward money as an attempt “to help prove Trump’s baseless claims . . . .”[19] But Trump’s baseless claim does not involve the existence of a few isolated instances of voter fraud. Rather, the claim is that voter fraud was so widespread that it cost him the election.[20] Therefore, it appears that this journalist has reasonably made the connection that Patrick is offering the reward in return for evidence of such widespread voter fraud, not an isolated instance of it that would have no effect on the election outcome. If Patrick could show that this is the reasonable interpretation of his press release, then he would only be obligated to pay in the event someone reported such widespread voter fraud.
Considering both sides, a judge would likely rule that a reasonable person reading the press release would conclude that it is an offer. The arguments in favor of this conclusion are straightforward. Conversely, the potential arguments by Patrick against this conclusion are more amorphous and require the reader to make assumptions about the level of voter fraud, potential effects on the election results from identifying voter fraud, Patrick’s mindset, and his ability to pay.
Revocation
The general rule is that an offer of a reward may be revoked at any time before acceptance by performance.[21] Patrick would be well advised to revoke his offer if he does not want to be responsible for paying out multiple $25,000 rewards. As of January 31, 2022, the November 10 press release and the tweet that refers to it have not been taken down.[22] However, even if Patrick revokes his offer before anyone accepts by rendering full performance, he may nevertheless be responsible to pay the reward if an offeree has substantially performed before the revocation.[23]
Misguided Strategy
Attempting to promote the notion of widespread voter fraud by offering $1 million rewards for reporting the practice is a peculiar strategy. If the practice is in fact widespread, such incentive would not be necessary. Indeed, offering a cash reward to anyone who can produce evidence of an occurrence would be a more reasonable strategy for someone trying to prove that such an occurrence did not happen. For example, one might offer a $1 million reward to anyone who identifies a deceased person who voted in the 2020 election in an effort to demonstrate that such an occurrence did not happen. Regardless, there is no rule of contract formation that would allow one to avoid liability simply by demonstrating that his stated offer was the result of a misguided effort to reach some implausible end. And such a questionable strategy does not rise to the level of demonstrating a lack of capacity to contract on the part of Patrick, thus allowing him to void the contract on those grounds.
Potential Campaign Finance Violation
Patrick’s reward may be considered an in-kind contribution to the Trump campaign. Federal Election Commission (“FEC”) guidelines state, “An expenditure made by any person or entity in cooperation, consultation or concert with, or at the request or suggestion of, a candidate’s campaign is also considered an in-kind contribution.”[24] It is unclear if President Trump or the Trump campaign reached out to Patrick in this matter. Trump has been reaching out to elected officials, likely in an effort to persuade them to act in a manner consistent with his wishes as it pertains to the election outcome.[25] Indeed, Patrick’s tweet announcing the reward made reference to Trump’s Twitter handle, “@realDonaldTrump.”[26] And Patrick’s press release explicitly states:
I support President Trump’s efforts to identify voter fraud in the presidential election and his commitment to making sure that every legal vote is counted and every illegal vote is disqualified. President Trump’s pursuit of voter fraud is not only essential to determine the outcome of this election, it is essential to maintain our democracy and restore faith in future elections.[27]
The potential campaign finance violation is unclear without knowing if there was any coordination between Patrick and the Trump campaign. Furthermore, Patrick may never pay any of the reward money, in which case the finding of an in-kind campaign contribution would be even less likely. But if reward money were to be considered an in-kind contribution, it would need to be reported on campaign finance reports and would be subject to federal contribution limits—which even the minimum of $25,000 would greatly exceed.[28]
Conclusion
Texas Lieutenant Governor Dan Patrick’s press release likely constitutes an offer that will contractually obligate him to pay if someone accepts by completing the requested action. While a short tweet alone is likely not enough to constitute a contractual offer for a $25,000 reward,[29] Patrick’s press release probably is. Given the details provided, Patrick’s position as lieutenant governor, and the absence of any indication of it being a joke, a reasonable person would likely assume that completing the requested performance would entitle him to the stated payment.
Patrick should not only be concerned about a potential obligation to pay out the promised reward money but also the potentiality of a campaign finance violation. His press release announcing the award explicitly refers to supporting Trump in his efforts to identify voter fraud.[30] And it is likely the case that Trump views such accusations of voter fraud favorably. Whatever the ultimate result of Patrick’s actions, government officials are well advised to not use language that could be interpreted as a serious offer, especially when done in their official capacity.
[1] Patrick Offers Up to $1 Million in Rewards for Voter Fraud Whistleblowers & Tipsters, Dan Patrick, Lieutenant Governor (Nov. 10, 2020), https://www.danpatrick.org/patrick-offers-up-to-1-million-in-rewards-for-voter-fraud-whistleblowers-tipsters/ [https://perma.cc/LC67-S8UP] [hereinafter Patrick Offers Up to $1 Million].
[2] 17A Am. Jur. 2d Contracts § 180 (1964).
[3] Situation Mgmt. Sys. v. Malouf, Inc., 724 N.E.2d 699, 703 (Mass. 2000).
[4] Patrick Offers Up to $1 Million, supra note 1 (stating the reward is “up to $1 million”).
[5] Id. (noting that the reward has “a minimum of $25,000”).
[6] Id. (soliciting “information that leads to an arrest and final conviction of voter fraud”).
[7] The press release states, “Whistleblowers and tipsters should turn over their evidence to local law enforcement.” Id. But this does not answer the question of how to notify Dan Patrick.
[8] Richard Luscombe, Texas Politician Offers $1M for Proof of Voter Fraud and Pushes Baseless Claims, Guardian (Nov. 11, 2020, 5:27 PM), https://www.theguardian.com/us-news/2020/nov/11/texas-dan-patrick-voter-fraud-reward [https://perma.cc/VW4S-BV8Z]. From the press release alone, it is unclear if Patrick issued the reward in his individual capacity or as the Lieutenant Governor of Texas on behalf of the state. The press release was made from a “.org” website registered to Texans for Dan Patrick, Patrick’s campaign committee, which prominently refers to Patrick as the Texas Lieutenant Governor. A spokesperson later clarified that the money would be paid from Patrick’s campaign funds.
[9] 71 Am. Jur. 2d Specific Performance § 35, Westlaw (database updated Jan. 2022) (“[I]f there is sufficient intent expressed to make a contract legally valid, a court can make certain by its decree, within limits, subordinate details of the performance that the contract does not state.”).
[10] 17A Am. Jur. 2d Contracts § 30, Westlaw (database updated Jan. 2022).
[11] See id.
[12] Dan Patrick (@DanPatrick), Twitter (Nov. 10, 2020, 2:38 PM), https://twitter.com/danpatrick/status/1326262903343869952 [https://perma.cc/TV77-AY75].
[13] As of the publication of this Article, the November 10 press release is still posted on Patrick’s website.
[14] Conversely, if, say, a blue-collar worker made a similar pronouncement, it would be less reasonable for one to assume that the statement was intended to be taken seriously and that the person would be able to pay out—thus, such a statement is less likely than Patrick’s to be enforced.
[15] Patrick Offers Up to $1 Million, supra note 1 (“Patrick Offers Up to $1 million in Rewards for Voter Fraud Whistleblowers & Tipsters”).
[16] Id.
[17] Pennsylvania Lt. Gov. John Fetterman Asks For $1 Million Election Fraud Reward Payable in Sheetz Gift Cards from Texas Lt. Governor, CBS Pittsburgh (Nov. 12, 2020, 10:40 AM), https://pittsburgh.cbslocal.com/2020/11/12/john-fetterman-election-fraud-reward-request-texas-lt-governor/ [https://perma.cc/SMX6-HFLN].
[18] Id. It is worth noting that in no circumstance would Fetterman be entitled to the reward. He was not the one who reported the voter fraud that led to the arrest, which is explicitly required for the reward. Furthermore, “[a]s a matter of public policy, a public officer cannot lawfully claim a reward for the performance of a service that is his or her duty to discharge.” 67 Am. Jur. 2d Rewards § 23, Westlaw (database updated Jan. 2022).
[19] Michelle Homer, Ouch! Texas Lt. Gov. Dan Patrick Mocked on Twitter Over $1 Million Bounty for Voter Fraud Tips, KHOU 11 (Nov. 11, 2020, 3:49 PM), https://www.khou.com/article/news/politics/elections/texas-lt-gov-dan-patrick-million-dollars-mocked-on-twitter/285-26295744-01b4-49fc-8779-1ac1bed309f7 [https://perma.cc/2SGF-EFQ2].
[20] Id.
[21] See Otworth v. Fla. Bar, 71 F. Supp. 2d 1209 (M.D. Fla. 1999).
[22] It is also worth noting that simply deleting the original communication would likely not be enough to immediately revoke the offer. “An offer of a reward made to the public can be revoked only in the manner in which it was made, or in some other manner that will give the revocation as much publicity as the offer.” 67 Am. Jur. 2d Rewards § 15, Westlaw (database updated Jan. 2022).
[23] Ford v. Am. Exp. Fin. Advisors, Inc., 98 P.3d 15, 19 (Utah 2004) (“An offeror of a unilateral contract always retains the power to modify or revoke the offer so long as the offeree has not begun performance . . . .” (emphasis added)); 67 Am. Jur. 2d Rewards § 15, Westlaw (database updated Jan. 2022) (“Persons offering rewards must be held to the exercise of good faith and cannot arbitrarily withdraw their offers for the purpose of defeating payment when to do so would result in the perpetration of a fraud on those who, in good faith, attempted to perform the service for which the reward was offered.”).
[24] In-Kind Contributions, Fed. Election Comm’n, https://www.fec.gov/help-candidates-and-committees/filing-reports/in-kind-contributions/ [https://perma.cc/V486-WS6T].
[25] Annie Grayer, Jeremy Herb & Kevin Liptak, Trump Courts Michigan GOP Leaders in Bid to Overturn Election He Lost, CNN (Nov. 19, 2020, 11:47 PM), https://www.cnn.com/2020/11/19/politics/gop-michigan-results-trump/index.html [https://perma.cc/9VAV-SCWJ].
[26] Patrick, supra note 12.
[27] Patrick Offers Up to $1 Million, supra note 1.
[28] Contribution Limits, Fed. Election Comm’n, https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/contribution-limits/ [https://perma.cc/6MSR-A7H8].
[29] This is because a reasonable person would likely not consider Twitter a reasonable medium for the issuance of such a contractual offer and a single tweet is unlikely to contain the requisite details regarding Patrick’s reward.
[30] See supra note 26 and accompanying text.