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The worst recent voting take I thought I had heard was when House Republicans supporting stricter identification laws pointed to the Olive Garden restaurant’s identification requirements for its “Never-Ending Pasta Pass.” But the predictions-market company Kalshi just did one better, calling a Wisconsin law that bars voters from betting on elections a form of “voter suppression.” Kalshi’s politics lead Benjamin Freeman tweeted last week that the recent guidance to that effect issued by the Wisconsin Election Commission “will literally disenfranchise voters who use Kalshi to trade [on] elections. This is blatantly unconstitutional and illegal.” He also called the commission’s interpretation “INSANE,” “dystopian,” and “really dangerous for democracy.” Another Kalshi executive called the ruling “bananas.” But laws like Wisconsin’s are constitutional, and it’s Freeman’s comments, and maybe betting on elections, that are a greater danger to democracy.
Put aside the broader question of whether predictions markets like Kalshi and Polymarket are simply dressed-up gambling forums that are already illegal under many states’ anti-gaming laws. That issue will end up getting resolved by courts or even Congress.
The narrower question raised by Freeman’s tweet is whether states can bar—and in cases like Wisconsin, already have barred—betting on elections by voters. The question of whether a particular state’s law is legal is a question of statutory interpretation and will differ from state to state. And there are some arguments that federal law preempts state laws against betting on voting. But there’s no constitutional roadblock to anti-vote-betting laws, and they can serve some salutary purposes.
To begin with, just like there’s no constitutional right to a never-ending bowl of fettucine, there’s obviously no constitutional right to bet on elections. The only plausible constitutional argument to be made against state laws that ban betting on voting is that they might infringe on the fundamental right to vote protected by the 14th Amendment. One can easily imagine impermissible burdens on the right to vote, such as laws disenfranchising those who speak about elections, or laws limiting voting to just a few hours on one day at a faraway polling place. But in those circumstances, such laws are unconstitutional because they are either conditioned on giving up another constitutional right (like free speech) or because they unduly burden voters in exercising their right to vote. Anti-vote-betting laws do neither of these things.
And states have good reasons for making betting on elections illegal.
First, it is possible that online elections predictions could be gamed by those with inside knowledge, such as campaign staffers who know a candidate is about to drop out of a race or announce a running mate or cancer diagnosis. Already the prediction platforms have had to police for this possibility. Or imagine more nefariously that a foreign government bets heavily on one candidate in an election in the hopes of convincing the electorate that the candidate is gaining in popularity, and thereby shifts votes in an election. As a recent Brennan Center report noted: “Some bettors may not be acting in good faith. … They may have a personal stake in the outcome, access to inside information, or ties to foreign actors, and they could use their wagers to attempt to sway election results.”
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Second, voters find prediction markets confusing, and discouraging prediction markets from allowing bets on voting can help voters avoid confusion. When voters hear that Candidate A has a 60 percent chance of winning and Candidate B has a 40 percent chance of winning, some voters mistakenly interpret that as Candidate A having 60 percent support among voters in a public opinion poll. When actual election results don’t reflect prediction markets, it can cause voters, already primed in the current political environment to be suspicious about elections, to worry about vote-rigging. This exact problem arose in the recent first round of the Los Angeles mayoral race, where markets had predicted much greater success for Spencer Pratt than he actually achieved.
Third, and most fundamentally, laws against betting on voting may be justified by the same interests as laws barring the buying and selling of votes overall. As I wrote long ago in a comprehensive article on anti-vote-buying laws, one of the strongest arguments supporting vote-buying bans is that commodifying voting changes the nature of what voting is for, and focuses voter attention on self-interest rather than communal good. Law professor Cass Sunstein wrote in 1994 that “if votes were freely tradable, we would have a different conception of what voting is for—about the values that it embodies—and this changed conception would have corrosive effects on politics.” This is one reason that Elon Musk may face criminal vote-buying charges for giving people a chance to win $1 million if they registered to vote in Wisconsin before a contested state Supreme Court race.
The same inalienability concern applies to anti-vote-betting laws. Indeed, as political scientist Matt Barreto told NPR about Kalshi’s reaction to Wisconsin’s ban, “There should be absolutely no money involved in the outcome of our democracy. We should be voting on candidates for their positions and policies to represent us, not because we can make a buck.”
None of these arguments indicate that a ban on vote-betting is necessarily required by those states that ban vote-buying. These prediction markets are relatively young, and if states have various approaches to the question, we can see in a natural experiment how things go in a few election cycles.
But Freeman’s comment about Wisconsin’s law being “voter suppression” is pernicious. His for-profit company is seeking to wrap itself in the mantle of voting rights to make the case for a gambling activity that states have ample reasons to choose to discourage, while no one’s constitutional rights are being infringed. Freeman is not John Lewis. Don’t bet on his arguments succeeding in court if Kalshi sues Wisconsin.
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