The Supreme Court said that language was added after signatures were gathered and thus petition signers didn't approve a vote on the measure certified by Secretary of State Mark Martin. The backers of the casino have said objections to the title had left them with no choice but to add the language and that it was immaterial in terms of the original proposal. The Court reduced the case to this:
Although the case raises at least four separate issues, the primary question presented is whether a sponsor of an initiated amendment may attach one ballot title to her petition and then ask respondent to certify another. We hold that she may not.
The Court declined to issue an advisory opinion on the question that put this all in play — whether the original ballot title was sufficient. The Court said in a separate opinion that that issue became moot when Martin certified the amended proposal.
Nancy Todd issued this statement:
Today’s announcement is disappointing. More than 200,000 Arkansans signed our petition and thousands more understand this is about keeping our money in Arkansas and creating more than 6,000 good paying jobs in the state. A track full of moneyed insiders fought me every inch of the way and while they may have “won” today, it’s the people of Arkansas who have lost in the long run.
Issue 3 would provide Arkansas with real benefits: secure jobs and funding for our schools, senior citzens, veterans,
job training and the Children's Hospital. While today's decision means votes cast for Issue 3 will not count, I will continue talking about the importance of keeping our money in Arkansas and creating good paying jobs.
Here's the main opinion. Groups tied to existing racinos had mounted opposition to the proposal, which would have given a group of Missouri investors sole rights to establish casinos in four counties under a plan with scant legislative control. That group issued a statement:
Chuck Lange, Chairman of the Stop Casinos Now! Committee on today's ruling by the Arkansas Supreme Court:
"On behalf of the law enforcement, faith, community and political leaders that joined our campaign to stop Nancy Todd's casino monopoly in Arkansas, I would like to say thank you to those who stood up to protect our families and communities from the terrible realities that would have come from Todd's Vegas-style Poker Palace monopoly. We hope that all investigations into questionable signature gathering efforts possibly conducted by Todd's paid team will be completed in an effort to prevent further actions like those from occurring."
It sounds like the casino backers outsmarted themselves. They should have challenged Martin's refusal of their original ballot title as insufficient, a title that had been approved initially by the attorney general. He later changed his mind. Their effort to comply with questions was their undoing, at least in today's opinion. This puts an end to multiple efforts to put gambling expansion on the ballot this year. (Actually, the Todd casino measure will appear on ballots, but votes won't be counted.) The casino backers have five days to seek a rehearing, rarely granted particularly in the case of opinions joined by all justices.
About 9 a.m. this morning, you can click here to follow the Arkansas Supreme Court oral arguments by Texas casino promoter Michael Wasserman that Secretary of State Mark Martin should have given him more time to gather signatures for his constitutional amendment to allow him to open casinos in Arkansas.
UPDATE: Argument here. Taken under consideration.
In a statement, business woman Nancy Todd said that she plans to submit over 100,000 signatures today to the Secretary of State in support of her ballot initiative, a constitutional amendment to give a group she represents four exclusive casino licenses in Arkansas.
Todd submitted 80,000 signatures in July, but the Secretary of State's office only certified 23,616. She needs 78,133 to qualify for the ballot, which means she'll need a much better success rate per signature than she had in in July in this second round.
UPDATE: Todd submitted 121,000 signatures today and told the Secretary of State's office that she'd sue if the revised language of her ballot proposal was rejected. The original language of Todd's proposal was rejected by state election officials, and she filed revised language last week.
UPDATE II: Stop Casinos Now! Committee spokesman Robert McLarty offers the following statement:
"The fact of the matter is, Vegas-insider Nancy Todd's poorly written ballot proposal has been determined insufficient by the Secretary of State, and removed from the ballot. She secured another 120,000 signatures for a proposed constitutional amendment with language that was determined insufficient.
"In fact, a prosecuting attorney and other law enforcement officers are investigating questionable practices relating to the signatures gathered in an effort to place Nancy Todd's proposed constitutional amendment on the ballot."
After the Secretary of State ruled her ballot title was legally insufficient because it didn't include a mention of the measure's potential impact on "electronic games of skill" at Oaklawn and Southland, Nancy Todd said she's re-filed with the Secretary of State, adding the following language to the ballot title:
"Such prohibition may repeal the Electronic Games of Skill Act, and thereby prohibit Oaklawan Racing and Southland Racing from continuing to operate electronic games of skill at their respective race tracks in Hot Springs and West Memphis."
"We didn't see the language as affecting the tracks in any manner," Todd said in a statement, "but they did, and they stated a compelling enough of an argument to the Secretary of State that both he and Attorney General Dustin McDaniel agreed with them. I must respect their collective opinions and have changed the language to address what they believe to be a supposed ambiguity."
Monday is the deadline for Todd to turn in an additional 54,500 signatures to qualify for the ballot. In July, she submitted some 80,000 signatures, but had only 23,616 signatures validated. 78,133 is the magic number.
Secretary of State Mark Martin has declared that the ballot title for Nancy Todd's casino amendment is not fair and complete and thus not legally sufficient for inclusion on the ballot.
However, both Arkansas statute and constitution provide a means for the proposal to be altered to "cure" the single deficiency that was found in Attorney General Dustin McDaniel's review.
For now, a spokesman said, it is the position of Martin's office that the administrative declaration means the amendment will not appear on the ballot.
Martin concurred with a finding by McDaniel, who'd earlier found that the title WAS fair and complete. But, in an opinion rejecting most of the objections raised by the committee fighting the casino amendment, McDaniel said on one key point that, "on reflection," the ballot title should have included a mention of the measure's potential impact on "electronic games of skill" at the Oaklawn and Southland racetracks. Both have been active in opposing casino measures aimed at this year's ballot because their electronic games mimic all the standard casino games. The challenge to the Todd amendment said the amendment could put other casino operators out of business by making her group the sole permitted casino operator in four places.
"...I believe it would have been advisable to expressly point out the Amendment's implied repeal of the EGS Act, which has, after all, resulted in significant casino gaming activity at the Oaklawn and Southland horse and dog racetracks," McDaniel's opinion said. "I cannot predict with certainty how the Arkansas Supreme Court might rule on a challenge based on this objection. The court may indeed be convinced that the adoption of the amendment would effect a change in law whose disclosure would have given a reasonable voter serious ground for reflection. Accordingly, should you choose to declare the ballot title insufficent on this ground, I believe a strong argument would be made in support of your action."
Martin concurred with McDaniel's opinion. In the process, they also rejected an argument by casino amendment opponents that the measure as written would violate state or federal constitutions or other regulations.
I have questions out, but I believe this now leaves it up to Todd and her backers, Branson businessmen,
to decide whether they'll challenge that determination in court. Wrong. The statute provides for a means of fixing shortcomings found in the review process, if possible.
If the Secretary of State declares the initiative petition legally insufficient, the sponsors of such measure may attempt to cure the insufficiency by correction or amendment, as provided in Arkansas Constitution, Amendment 7.
(b) Within fifteen (15) days after a correction or amendment is filed with the Secretary of State, the Secretary of State shall notify the petitioner and sponsor of the measure of this declaration by certified mail on the date that it is issued.
In this case, the fix could be simple — inclusion of a clause that said a court might find an effect on existing gambling operations. I'm still trying to reach Todd to see what her plans are.
UPDATE: She says she was "explore all options" to bring the measure to a vote of the people.
Meanwhile, a simpler question still remains to be answered: Will she submit sufficient signatures from registered voters to qualify for the ballot? The gathering of those signatures continues. Opponents of the measure may also mount further challenges on signatures, such as sufficiency of the notarization process and witnessing of signatures. This has been a familiar path of challenge by opponents of other ballot measures over the years. Todd has until Aug. 22 to turn in additional signatures. Needing 78,133 signatures, Todd in July turned in only 23,616 valid signatures among some 80,000 submitted. But by surpassing the threshold in raw signatures, she got additional time to seek the almost 56,000 additional needed. A statement follows from the anti-casino committee.
Opponents of the Nancy Todd Poker Palace constitutional amendment — still undergoing review for signature sufficiency by the secretary of state and still in the field for more signatures — earlier had contested the legality of placing the measure on the ballot for a variety of flaws in the ballot title and content.
Opponents raised anti-trust questions and impact on existing casinos at the Southland and Oaklawn racetracks. The opposition is funded by Southland and they hired a major Little Rock law firm, Wright Lindsey and Jennings, to argue the case to the attorney general.
Now Todd has filed her answer, another extensive brief by a major Little Rock law firm, Williams and Anderson. The firm has been advising Todd and her backers in Branson, Mo., from the outset.
Todd's lawyer naturally says her amendment is legal, that arguments attacking it are incorrect or premature and that the amendment does NOT threaten existing gambling at the Southland and Oaklawn casinos. Why, that is not casino gambling, but electronic games of skill at existing parimutuel wagering facilities. Who could ever call slot machines, blackjack tables, poker rooms and digitized version of other casino games, well, casinos? Certainly, Southland and Oaklawn do not as a rule, except after a fashion in the brief opposing Todd's casino amendment.
Here's the response. Peruse at leisure. The attorney general has yet to weigh in.
Reed said the secretary of state's office's temp workers will continue work until 9:30 p.m. tonight, but they apparently already know with the number remaining that the amendment will fall short of the 78,133 needed. She'll be given 30 days to meet the minimum. She had turned in only about 80,000, not much breathing room for invalid signatures. The verification of her signatures has been complicated by her attempt to register voters to qualify them to sign petiitons. She's learned you can't fill out a registration form and sign petitions the same day, you must first be registered with a county clerk. (See her news release on the jump, issued earlier today.)
The secretary of state has already disqualified another casino amendment and an ethics reform measure didn't go forward because of lack of signatures. The gas severance tax initiative, as we've mentioned before, is at least 41,000, perhaps thousands more, short and Sheffield Nelson will announce its fate tomorrow. The medical marijuana initiative drive is also thousands short with time running out.
UPDATE: Late Monday came word that Todd turned in only 23,616 valid signature leaving her more than 38,000 short. Failure rate matching gas tax. Another one heading to history books.
The secretary of state's office — currently checking signatures on petitions gathered by Nancy Todd for a constitutional amendment to give her group four exclusive casino licenses in Arkansas — has been advised by Attorney General Dustin McDaniel to disregard one objection filed to the form of the amendment. A Little Rock woman had challenged the legality of the amendment's scheme to take taxing authority out of the hands of the legislature and split taxes among designated beneficiaries.
McDaniel continues to consider a much deeper legal challenge of the amendment's sweep in a brief filed by a Little Rock law firm for the Southland casino-backed group that is trying to beat the new casino intiative.
UPDATE: Secretary of State Mark Martin has followed McDaniel's recommendation and rejected this challenge.
UPDATE II: Martin also rejected Texas promoter Michael Wasserman's appeal of the office's finding that he hadn't met a signature threshold for continued consideration of his casino amendment. He says he plans a court appeal.
Michael Wasserman, the Texas casino promoter who turned up with what he represented were sufficient signatures to qualify his constitutional amendment for an exclusive right to open seven casinos, won't make it to the November ballot.
He failed to get the required minimum alternative of a half-percent of the vote in the last gubernatorial election or 5 percent of the registered voters in each of 15 counties.
Here's Secretary of State Mark Martin's letter notifying Wasserman that at least three of his 15 counties (he actually designated 16) fell short. A "facial" review indicated shortcomings in other counties, the office said.
The county minimums had to be met at the July 6 deadline. The overall signature total of 78,133 for constitutional amendments — if found to be short of registered voters — can be added to during the certification process. Alex Reed of the secretary of state said Wasserman turned in only 332 signatures from Saline County, for example, needing 1,757. He came closer, but still fell short, in both Woodruff and Prairie Counties. Wasserman's canvassing was much less evident than many other initiative campaigns. He apparently gathered most of his signatures in Pulaski County.
The checking continues of the petitions submitted by Nancy Todd for a four-casino amendment being backed by Branson investors as well as those for a severance tax increase and a law to allow medical marijuana. Reed said he didn't know which amendment would be next in the initial check for meeting the signature distribution requirement.
Reed said the office had told Wasserman by phone of the news. It's not a finding that's readily open to any sort of appeal.
Nancy Todd met the initial signature threshold to put a constitutional amendment on the November ballot that would grant four casino licenses to promoters of the amendment. The secretary of state yet must verify the drive has gathered sufficient signatures of registered voters.
Todd got back to me yesterday on a point I'd made earlier in discussions on the proposal.
Todd, who's being paid by Branson investors to lead the campaign, had told me earlier that I was in error to presume the casinos — if approved by the voters — would be beyond the reach of state legislative regulation. Language in the amendment is restrictive as to legislative involvement, both in regulation of gambling and taxing proceeds.
But, Todd contends, there's an implicit authority of the legislature to impose regulation. She sent a note explaining her position, which I'll share on the jump. If and when the measure moves closer to a vote, it will bear further examination.
Another proposed amendment by Texas promoter Michael Wasserman would give him licenses for seven casinos. Wasserman, too, turned in sufficient signatures for a secretary of state review. Interesting. The last report he filed on his committee's ballot question activity was in March. It reported no contributions or expenditures. The Ethics Commission made clear, in the case of Todd's effort, that activities toward qualifying an amendment for the ballot must be reported when $500 has been spent. I'd be skeptical that Wasserman gathered 80,000 signatures without paying canvassers to gather them or otherwise spent less than $500 in his long effort to qualify a proposal for the ballot. Wasserman's amendment, by the way, explicitly prohibits legislative regulation.
Nancy Todd alerted me that the group pushing a casino amendment initiative had filed a batch of papers with the state Ethics Commission today. I've been writing about the absence of reports on her group's effort to gather signatures for an amendment to permit four unregulated casinos operated under her name.
The filings included organizational papers for two new ballot question organizations and they report the money supporting the campaign flows primarily from two investment companies in Missouri ($195,000):
* The Nancy Todd Poker Palace and Entertainment Venues LLC. It shows three people with Little Rock office addresses as leaders — Bob Womack, director; Larry Weis, officer, and Dianne Dalton as treasurer. Todd and Jim Thompson are also members of the committee, whose mission is to qualify and pass the amendment.
The commitee reported raising $27,600 — $20,000 from SKAP Investments of Branson, Mo., and $7,500 from Arkansas Development I LLC — in May. It spent about $3,700 on advertising and signature gathering.
* Also filed was paperwork for Arkansas Development I LLC. It has the same officers and purpose as the Nancy Todd Poker Palace filing.
This group reported (in a belated report on activities in March) raising $175,000 and spending about $45,000. All the money came from Evergreen Investments of Lebanon, Mo. In March, it spent more than $23,000 with the Williams and Anderson law firm in Little Rock and more than $21,000 paying Todd for consulting and expenses.
For April, the group reported spending another $58,753 — primarily for more Williams and Anderson fees and more payments to Todd.
In May, the group spent another $49,130, leaving about $29,000 of the original money on hand. More than $40,000 went to Todd.
The filings don't show recent expenditures for canvassers, except those on the Poker Palace May report, though the canvassers continue to work, according to multiple reports. I've also heard reports of robocalls and and radio advertising. The batch of late filings would seem tacitly to concede the obvious, that reports didn't begin as law requires with spending of $500.
Registered agent for SKAP Investments is Marc Williams of Branson. He, Todd confirms, is also CFO of HCW LLC, a development firm whose projects have included Branson Landing and hotels in that area. He was out of the office this afternoon. Evergreen Investments is headed by Stephen Plaster, and the firm is also an investor in Branson Landing. Todd said they are partners in the casino effort. Evergreen's holdings were amassed by Plaster's father, the late Robert Plaster, a former utility company chief (Empire Gas) who became well-known for philanthropy in the region, including, perhaps ironically in this context, in support of a Baptist college. I've left a message for him.
Todd also filed a report showing no activity in either fund-raising or expenditures by the organization for which she'd originally filed papers, Arkansas Counts.
The casino amendment would allow casinos in Pulaski, Miller, Crittenden and Franklin counties and prohibit legislative oversight. Amendments require more signatures than initiated act. The group must obtain 78,133 signatures of registered voters by July 6. Initiated acts need 62,507.
UPDATE FOLLOWS AFTER A LATE-AFTERNOON PHONE INTERVIEW WITH TODD:
I sent a note Friday to Nancy Todd, who's fronting the petition campaign to put a casino amendment on the November ballot. The amendment would authorize four unregulated casinos, operating under the name Nancy Todd Poker Palace, in Pulaski, Miller, Crittenden and Franklin counties.
As you can see from her website, she's busy. You can find her canvassing operation anywhere a crowd is gathered, such as War Memorial Park today for the balloon races.
Todd filed an organizational statement in May, but has otherwise made no disclosures, though paid canvassers have been at work for weeks.
So the question: Who's paying for this operation? In response to my inquiry, I got this note back from Todd:
Hi Max, I got your message and I'm not ignoring you. The attorney and the CPA firm, as well as the ethics director for the state, have talked about the distinction between the "campaign" and the "signature gathering" phases of the campaign. I will track it down officially for you Monday morning. Thanks. Nancy
A cursory reading of the rules on ballot question committees suggests more disclosure is overdue. The relevant section pertaining to ballot questions says the terms is defined as an "initiative or referendum which is submitted or intended to be submitted to a popular vote at an election, whether or not it qualifies for the ballot." Committees are subject to disclosure rules from the moment bills are received if they make expenditures "for the purpose of expressly advocating the qualification, disqualification, passage, or defeat of any ballot question." Disclosure is required as soon as $500 is spent, even just for "qualification" of a measure.
Others see the rules as I do. A group formed to oppose this petition drive, backed financially by the Southland casino in West Memphis, has filed financial disclosure. So have groups on both sides of the gas severance tax. So have two committees working to qualify an ethics petition for the ballot.
CORRECTION: Who is Nancy Wilson? I got the casino amendment sponsors' name wrong in the original post.
Noticed this squib on the Channel 4 Twitter feed:
A Pine Bluff Woman hit a jackpot Monday for $62,407.85 on a $.25 Wheel of Fortune Secret Spin machine.
That is the second largest jackpot at the Oaklawn Gaming Center since it opened in 2009.
Oaklawn's record for a single jackpot is $81,640 won by a Jacksonville woman on a $.25 Wheel of Fortune machine in November 2011.
The winner did not wish to give out her name.
Wish she'd let us know how to get in touch. Because there's nothing but electronic games of skill at Oaklawn, no slot machines. It is a gaming emporium, not a casino. The rest of us could use some advice on picking up the skills necessary to win big jackpots there.
The Southland park anti-casino campaign has already hit mailboxes with a hypocritical mailer decrying the predatory nature of casinos on families. Southland oughtta know. The flyer, needless to say, doesn't identify the underwriter or that it is the work of the infamous Markham Group of secretive political consultants.
Nonetheless, the Southland opposition makes some good points. One is this: Why give some monopoly casino rights to a single operator? Who better to know the benefit of a Crittenden County monopoly than Southland? Still, there's truth in this. If we're to gamble, let's gamble. Let's have competition and the greater investment this brings.
This is a better criticism: The unregulated nature of what Nancy Todd proposes. Here's what the amendment says: It is a measure "prohibiting the General Assembly and any political subdivision of the state from enacting any legislation, rules or regulations regarding casino gambling; prohibiting casino gambling at any other than the locations operated by Nancy Todd's Poker Palace and Entertainment Venues..."
Wow. Forget for a minute that this language arguably could clearly make illegal the casinos operating (as electronic games of skill parlors) at Southland and Oaklawn. Consider what a prohibition on regulation means? Supply your own nightmare. Scary stuff. Even the carefully regulated gambling businesses in other states — and our own lottery — have been subject to problems inherent in the cheaters and crooks that flock to any place piles of cash stack up.
I had a brief discussion in e-mails yesterday with Todd about the monopoly angle and lack of regulation. Her response:
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