Idaho Supreme Court rejects Otter veto; ‘instant racing’ machines banned

Slot machine-like “instant racing” machines operating at three Idaho locations – including the Greyhound Park Event Center in Post Falls – are illegal, the Idaho Supreme Court ruled Thursday.

Lawmakers this year repealed the authorization for the controversial betting machines, which Idaho’s horse racing industry promoted as a way to raise money to support live racing. Amid heavy lobbying, Gov. Butch Otter issued a veto in April, but didn’t return the vetoed bill to the Idaho Senate within the state constitution’s required five-day time limit. The high court said that means the repeal bill became law without the governor’s signature on July 1.

Idaho Secretary of State Lawerence Denney, who was ordered by the court to certify the repeal legislation as law, won’t appeal, according to the Idaho attorney general’s office.

“The secretary of state has said all along that he will do whatever the court instructs in this case,” said Todd Dvorak, spokesman for Idaho Attorney General Lawrence Wasden. “This is it.”

Otter said in a news release that he believes he properly vetoed the bill.

“While I disagree with today’s ruling, I will continue working toward a solution that ensures a viable live horse racing industry in Idaho,” he said.

Idaho lawmakers first authorized the machines as a new form of betting on broadcasts of horse races in 2013, but said they didn’t expect the slot machine-like terminals that showed up a year later. The machines were touted as terminals showing “historical” or past horse races, but instead had spinning reels, flashing lights and a tiny screen showing a few seconds of the end of a horse race.

Many lawmakers said they’d been duped, and the Legislature voted overwhelmingly this year to repeal all authorization for the gaming machines.

Idaho’s anti-gambling laws are strict; they forbid most forms of gambling other than a state lottery, tribal gaming on Indian reservations and pari-mutuel, or pooled, betting on horse races. Horse racing operators in Idaho contended their machines are just a new form of pari-mutuel betting.

The Coeur d’Alene Tribe, which operates its own gambling casino on its reservation in Plummer and which was turned down by the state in 1998 in its bid to open one at Greyhound Park, proposed the repeal bill, arguing that expansion of gambling machines beyond tribal reservations directly undercuts the main funding source for tribal government functions, including schools, courts and law enforcement. When the question arose over the veto, the tribe sued.

“This pivotal decision reaffirms that even Idaho’s highest elected officials must follow the Constitution,” tribal Chairman Chief Allan said in a news release. “More importantly, this is a big win for the Idaho Legislature because the Court is upholding a law that was passed by a supermajority of both the Idaho Senate and the House of Representatives. This is exactly why our government has checks and balances in place.”

The state and the three companies that operate the gambling terminals in Idaho argued that because the Senate treated the governor’s veto as if it were valid and took an unsuccessful veto override vote, that meant the veto was valid. The justices disagreed.

“If either house can disregard one plain provision of the Constitution, then it may disregard all of its provisions, and the Constitution, instead of being the fundamental law of the land, is a mere sham, an idle mockery, a nullity,” the justices wrote.

They also rejected arguments that separation of powers should prevent the courts from telling the Senate or the executive branch how to handle the veto. “It is … this Court’s duty to intervene to prevent the governor and the Senate from circumventing the Constitution and manipulating the veto power in this case,” wrote Justice Roger Burdick in the court’s unanimous decision.

The court also ordered the state to pay the tribe’s attorney fees and costs.

David Leroy, a former Idaho attorney general who represented Greyhound Park in the case, called the court’s ruling “a sweeping and significant precedent.”

He said he planned to review the ruling.

“There’s no appeal from this,” Leroy said. “It’s my belief the possibility of rehearing is available under the rules,” but he said the parties hadn’t conferred about that idea.

The court sent a strong message in its ruling, Leroy said.

“They have said they will take a very activist role in being the constitutional referees in a battle such as this.”