LITTLE ROCK — The ballot petition process has been turned into “an obstacle course” for a businesswoman seeking to place on the ballot a proposed constitutional amendment to allow casinos in four counties, her attorney argued Thursday before the state Supreme Court.
Attorneys for the secretary of state and a casino opponent said the proposed ballot item is legally insufficient and asked the court to uphold the secretary of state’s ruling to that effect.
The high court heard oral arguments but did not immediately issue a ruling Thursday in Nancy Todd’s appeal of Secretary of State Mark Martin’s rejection of her ballot item, which proposes amending the state constitution to allow Nancy Todd’s Poker Palace and Entertainment Venues LLC to operate casinos in Crittenden, Franklin, Miller and Pulaski counties.
The measure has been certified for the ballot because of the appeal, but if the court rejects the appeal it could order that any votes it receives not be counted.
Peter Kumpe, attorney for Todd, told the justices the petition process is designed to give the public access to the ballot, but “the sponsors have experienced the process more like an obstacle course.”
Kumpe said Attorney General Dustin McDaniel approved the wording of the measure and cleared Todd to gather signatures, but after she submitted more than enough signatures to qualify for the ballot, an “11th hour challenge” was filed by Chuck Lange, chairman of the group Stop Casinos Now, and McDaniel then reversed himself and advised Martin to declare the measure legally insufficient.
Kumpe said McDaniel sided with Lange in objecting to a clause Todd added to the ballot item stating that her amendment “may” repeal the 2005 state law allowing games of electronic skill at Oaklawn Park thoroughbred track in Hot Springs and Southland Greyhound Park in West Memphis.
Stop Casinos Now is funded by the parent company of Southland Greyhound Park.
Kumpe said Todd only added the clause because it was “solicited by the attorney general and the secretary of state,” who he said had complained that the ballot item did not address the potential impact on electronic games of skill.
He argued that there should be no overlap between casino games and electronic games of skill because the Legislature specifically defined electronic games of skill as being different from casino games.
Asa Hutchinson, attorney for Martin, argued that the addition of a clause stating that the proposed amendment “may” repeal the Electronic Games of Skill Act made the ballot item unclear.
“There is nothing clear about the word ‘may.’ It is shrouded in doubt, confusion and speculation,” he said.
Hutchinson also argued that the clause was not in the measure when Todd and her supporters were collecting signatures for it, so the proposal in its current form is materially different from what was presented to the public by signature gatherers.
Steve Lancaster, attorney for Lange, made a similar argument. Justice Paul Danielson pointed out that state law allows proposed ballot questions to be amended to correct deficiencies under certain circumstances.
“It’s never going to be the same if it’s amended,” Danielson said.
Lancaster said the remedy for the situation “would be that they … go back and get new signatures.”
Lancaster also argued that the proposed amendment would repeal the Electronic Games of Skill Act because there is “no distinction” between the games operated at the tracks and some of the games that would be played at Todd’s casinos. He said voters should be informed of the possibility that passing Todd’s amendment could result in the loss of millions of dollars that the racetracks generate through fees for the state and the local communities.
Justice Karen Baker asked Kumpe if telling voters that the amendment “may” repeal the Electronic Games of Skill Act was conveying any actual information.
“People engage in contingent thinking all the time,” he answered.
As an example, Kumpe said that if the weatherman says the chance of rain is 40 percent, people planning a barbecue can use that information to decide whether to go ahead with their plans.
“But (the ballot title) doesn’t give them the odds,” Baker said.
Todd, who moved to Little Rock from Las Vegas earlier this year, told reporters later she believed justice would be served. She attributed the difficulties her proposal has faced to politics.
“I no longer believe I’m fighting against two tracks. I think it’s a deeply entrenched political system at work here,” she said.
Todd also said her casinos would generate a “substantial” amount of money for the state through construction spending, taxes, fees and the creation of between 1,200 and 1,600 jobs at each facility. The total revenue of the casinos could be as high as $1 billion a year, she said
Hutchinson told reporters, “We’re happy with the way the case was presented today and very pleased that they picked up some of the issues that we raised by the secretary of state. I think they’re looking at the ambiguity.”
Last week, the court heard oral arguments in Texas businessman Michael Wasserman’s appeal of Martin’s rejection of his proposed constitutional amendment to allow casinos in seven counties. By Thursday the court had not issued a ruling in that case.