Court disqualifies casino amendment from ballot


LITTLE ROCK — The state Supreme Court on Thursday disqualified a proposed constitutional amendment to allow casinos in four Arkansas counties.

The measure will still appear on the Nov. 6 general election ballot, but the Supreme Court ordered that any votes cast for it not be counted.

The court ruled that sponsor Nancy Todd improperly changed the wording of the proposal after gathering signatures for it. Todd changed the wording to say the measure may repeal a 2005 state law that allowed local elections to permit Oaklawn Park thoroughbred track in Hot Springs and Southland Greyhound Park in West Memphis to operate electronic games of skill.

The casino measure would have allowed Nancy Todd’s Poker Palace and Entertainment Venues LLC to operate casinos in Crittenden, Franklin, Miller and Pulaski counties.

Todd said it was a “huge disappointment that the voices of 200,000 people who expressed interest in this doesn’t seem to count.”

The professional poker player initially fell more than 55,000 signatures short of the 78,133 valid signatures needed to qualify the proposed amendment for the ballot. After Todd later submitted more than 100,000 additional signatures, Secretary of State Mark Martin certified that she had met the threshold.

But Martin also ruled, on advice from Attorney General Dustin McDaniel, that the measure was legally insufficient because it did not adequately address the issue of the amendment’s possible impact on games of skill.

Todd appealed that ruling. She argued that she had addressed this concern, which McDaniel had raised previously, by adding a phrase stating that the amendment may repeal the Electronic Games of Skill Act.

The Arkansas Racing Alliance, a ballot committee funded by Oaklawn, filed a separate lawsuit arguing that the measure was legally insufficient because, among other things, the language about repealing the Electronic Games of Skill Act was not in the measure when Todd was gathering signatures for it, so the people who signed petitions did not fully know what they were supporting.

In its unanimous opinion Thursday, the Supreme Court agreed, noting that Amendment 7 to the Arkansas Constitution states that petitions in support of a ballot initiative must have attached to them “the exact title to be used on the ballot.”

“Because (Todd’s) revised ballot is clearly ‘something different’ than their original ballot title … we hold that no signatures collected under the former title may support certification of the revised ballot title. Accordingly, we hereby vacate respondent’s Aug. 23, 2012, certification and order that any votes cast for or against the proposed amendment not be counted or certified,” Justice Jim Gunter wrote in the opinion.

Todd said she felt no anguish over having added language to the proposal after McDaniel reviewed it and said it did not address the issue of the possible impact on the Electronic Games of Skill Act.

“Had we not added that language, the argument that it was not clear in the amendment would have held true,” she said.

Elizabeth Robben Murray, attorney for the Arkansas Racing Alliance, said the alliance was “very pleased” with the ruling.

“I think that based on the language of Amendment 7, the court’s holding is the only logical result,” she said.

Todd, who moved to Arkansas from Las Vegas to push her casino proposal, said she was in Arkansas to stay but that it was too soon to say whether she would make a future attempt to pass it here.

“That’s a little premature. I just had a long hard fight and I want to digest it before you start talking about the future,” she said.

The Supreme Court previously upheld a ruling by Martin that disqualified a separate proposed amendment that would have allowed casinos in seven counties, because of insufficient signatures.

Alex Reed, a spokesman for Martin, said the secretary of state’s office is working to notify county election commissioners that votes for both casino measures are not to be counted. He said counties may choose to post notices at polling places to let voters know the votes on those items will not be counted, but they are not legally required to do so.

The court has upheld Martin’s certification of a proposed initiated act that would allow marijuana use for medicinal purposes.

Also on the general election ballot will be two measures referred to voters by the Legislature.

One of the referred measures would raise the state sales by half a cent to fund construction of a statewide four-lane highway system. The other would allow cities and counties to do three things — create districts for development and redevelopment projects; issue bonds payable from city and county sales taxes; and issue bonds and levy a local sales tax, with voter approval, to retire unfunded liabilities of closed local police and fire pension plans.