Supreme Court denies casino amendment challenges; reverses voter ID decision | Arkansas Blog

Thursday, October 11, 2018

Supreme Court denies casino amendment challenges; reverses voter ID decision

Posted By on Thu, Oct 11, 2018 at 10:31 AM

BIG BUSINESS: Casino sports wagering. It could be coming to Arkansas.
  • BIG BUSINESS: Casino sports wagering. It could be coming to Arkansas.
The Arkansas Supreme Court today turned down two challenges to the proposed constitutional amendment to expand casino gambling in the state. It also reversed a circuit court ruling that the current voter ID law was unconstitutional, meaning it will remain in force in November.

In the voter ID case, the court voted 5-2 to reverse Judge Mackie Pierce's ruling that the current voter ID law added an unconstitutional additional barrier to voting. The court majority opinion, written by Justice Robin Wynne, accepted the state's argument that the rule was a permissible change to the part of the Constitution pertaining to voter registration, though the Constitution says only that someone must be a citizen, aged 18 and registered to vote.   Barry Haas, who challenged the rule, said the ID provision resurrected the registration requirement each time a person votes. Wynne wrote:

We cannot say that Act 633’s constitutional amendment is clearly not germane to Amendment 51 and not consistent with its policy and purpose. It is therefore constitutional. Accordingly, we reverse the circuit court’s preliminary injunction and remand for further proceedings consistent with this opinion. 
Chief Justice Dan Kemp and Justice Jo Hart dissented. The dissent said the law was not germane to Amendment 51, the registration amendment. Hart wrote:

Like the circuit court, I find it telling that “an individual registering to vote is not required to provide photo identification.” Certainly the legislature could have required the presentation of a photo identification card when a person registers to vote. That would clearly be “germane” to the purposes of amendment 51. If providing photo identification were required at registration, requiring presentation of the card at the polling place would
be more defensible. Asking for a photo identification card at the polling place strikes me as locking the barn door after the horse has been stolen.

Finally, the secretary of state’s argument that sections 1 and 3 of amendment 51 “imply” that an “enforcement mechanism” is germane to the purposes of the amendment
is a leap that I cannot make. No one has suggested that an “enforcement mechanism” can be found anywhere in the text of amendment 51. Accordingly, if it is “implied,” then
support for that proposition must exist in the amendment 51 “penumbra.” Resorting to penumbras when the text of the constitution is silent on the subject is the kind of judicial activism that I have always opposed. The end never justifies the means.
The Supreme Court struck down a nearly identical earlier voter ID law, but membership in the court has changed and the previous law clearly didn't meet the vote threshold for amending the registration portion of the Constitution. This law did.

Voters will consider a legislatively-referred constitutional amendment this year that will toughen the voter ID requirement. Under current law, a voter can refuse to produce an ID and cast a provisional ballot, that might later be counted.

On casino gambling:

* One suit was filed by residents of the four counties where existing or new casinos would operate. It argued that the ballot title and popular name didn't sufficiently describe the amendment. The court said a popular name cannot name every eventuality of a proposed amendment.  Similarly, it said arguments on definitions, terms and future consequences failed.

... we conclude that this ballot title sufficiently informs the public of the amendment’s purpose and scope and its consequences. 
Justice Jo Hart dissented. She said the ballot title failed to sufficiently convey the amendments "purposes and scope and consequences."

* Another suit challenged the amendment's failure to state clearly that two private corporations — at Oaklawn Park and Southland Gaming — would be given monopolies for casino operations in their respective locations.. It also raised other questions about misleading portions of the title. But the key argument was that the amendment overturned the constitutional ban on monopolies.

However, the proposed amendment does not overturn the constitution’s general ban on monopolies. Just as a measure to allow a state lottery did not overturn the constitution’s general ban on lotteries in Cox v. Daniels, supra, the amendment proposed here does nothing to invalidate the constitution’s general prohibition on monopolies. Furthermore, the ballot title identifies Issue No. 4 as a constitutional amendment, which is sufficient to inform voters that change will result. Id. Additionally, petitioner is wrong in asserting that the proposed amendment is limited to gambling by named private-casino corporations. In reality, only two entities to receive casino licenses are identified. The proposed amendment would require the issuance of four casino licenses, one to Oaklawn, one to Southland, and one each in Jefferson and Pope Counties to an unnamed entity or entities. We considered a
similar proposed amendment in Parker, supra, in which the ballot title explained that the proposed amendment would allow voters in Hot Springs to decide whether to authorize casino gambling “at or adjacent to the Oaklawn racetrack.”

The proposal in Parker also provided for casino establishments at two other Hot Springs locations, as well as other types of gambling. Although we questioned whether the proposal there actually created a monopoly, we concluded that even if it did, “that effect is clearly stated in the ballot title.” 
Justice Courtney Goodson wrote one casino opinion and Justice Rhonda Wood wrote the other. In both cases, a special justice, Hugh Finkelstein, participated because Chief Justice Dan Kemp recused.

Indian casinos, with help from Southland Gaming and tacit support from Oaklawn Park have already been advertising to pass the casino amendment, which would legalize full casinos at Oaklawn and Southland, with sports bookmaking, and allow one casino in both Jefferson and Pope counties.

Rehearings may be requested in all these cases. But a change is unlikely.

Nate Steel, who leads Driving Arkansas Forward, the pro-casino committee:

These decisions clear the way for Arkansas voters to add almost $6 billion to our state’s economy and create 6,000 new jobs through a fair, measured and merit-based expansion of casino gaming. We are grateful the Supreme Court upheld the Attorney General’s certification that Issue 4 is clear and understandable to voters. We are confident Arkansans will vote to keep casino entertainment dollars in our state when they cast their ballots on Nov. 6.

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