Unless the Arkansas Supreme Court diverges from its historical interpretation of the Constitution, the drafters and sponsors of the lottery amendment have made a fatal mistake. The court will be obliged to invalidate the proposal before the election.
What voters will see in the voting booth is the popular name and ballot title, and the Supreme Court has always said that the ballot title must tell voters every significant thing in the actual amendment. Voters must not be misled into voting for something they didn’t know about.
The proposed amendment would allow the legislature to create the first state lottery. What the ballot title does not tell voters is that the amendment would repeal the current prohibition against lotteries. It is how the amendment begins. That sounds like a harmless omission, but it is not.
The prohibition against lotteries in the 1874 Constitution has been interpreted by the courts over the years to prohibit any game of chance — that is, any form of gambling where someone puts up some money in the hope of winning money and where the outcome is determined by chance, not by the skill or judgment of the bettor. Betting on horse or dog racing does not violate the Constitution because the court said at least some skill or knowledge improved the bettor’s chance of winning.
The skill of the animals also is a factor in winning the bet. It is not left entirely to chance.
By not telling voters that the provision of the Constitution is repealed, the ballot title does not inform voters that if the amendment is ratified the legislature could thereafter legalize any form of gambling that any casino might offer from blackjack to slots. There are statutes against casino gambling, too, but those could be changed at any legislative session once the lottery prohibition is repealed.
Oh, but the legislature would never do anything like that, say the sponsors, including Lt. Gov. Bill Halter. The people do not want wide-open casinos and the legislature just would never authorize them.
Oh, no? The legislature did just that 40 years ago, and it took a veto by Gov. Winthrop Rockefeller to kill it. The sponsors hoped that if the bill became law the courts might alter the precedents and uphold it.
In 2007, the legislature authorized casino gambling as long as the casino games had an element of skill and were not simple games of chance. Gov. Mike Huckabee, who had got a little political help from the tracks, let it become law. There is little, if any, skill involved in the electronic games now going on at the state racetracks.
The sponsors would have achieved their stated purpose, legalizing only what is commonly known as lotteries, if they had not repealed the lottery prohibition but merely carefully defined the lottery they say they want to authorize to raise money for college scholarships. Attorney General Dustin McDaniel, who reviewed the ballot title, strongly advised them to do that, but they refused. If their only interest is a lottery, why would they not make that simple gesture? It makes you wonder what their purposes are.
Now the ballot title is under attack for trying to mislead voters, and the Supreme Court will hear arguments on Oct. 13. If the current justices ignore precedent and hold that “lottery” does not mean any game of chance but only the narrow form of betting used in state lotteries across the country, then the ballot title will stand and the lottery election will go on. And we will know, finally, that casino gambling is not prohibited after all by the Constitution.
Remember, if the courts strike a lottery proposal from the ballot once again, it will not be the fault of a meddling judiciary but the arrogance and duplicity of the sponsors.
