‘Instant racing’ ballot measure pushed, but Idaho AG says it may be unconstitutional

A proposed ballot initiative to legalize “historical horse racing” – slot machine-like betting terminals at which players bet on randomly selected past horse races – has been submitted to the state, but the Idaho Attorney General’s office has issued an opinion that raises serious questions about whether the measure is constitutional.

“The status of historical horse racing as legally permissible pari-mutuel betting under Article III, Sec. 20 (of the Idaho Constitution) is uncertain and likely to draw a legal challenge,” the Attorney General’s certificate of review says.

Such reviews are advisory for those proposing initiatives; they can go forward even if the Attorney General says their proposal is unconstitutional, but they risk having it overturned in court. Sponsors would need to gather more than 56,000 signatures, from all over the state, by April 30 to make the November 2018 general election ballot.

Idaho lawmakers first authorized betting on “historical horse racing” terminals in 2013, after being shown machines that looked kind of like microwave ovens, described as a new form of betting on broadcasts of races, with the races involved being randomly generated past races rather than races happening now. They were shocked a year later when the machines that showed up featured spinning reels, cherries and bars, flashing lights and instant wins, with just a tiny screen depicting the final seconds of a horse race.

In 2015, the Legislature repealed its authorization for the machines. Gov. Butch Otter belatedly attempted to veto the bill, but the Idaho Supreme Court ruled he’d missed the deadline.

Since then, horse racing proponents have pushed hard, without success, to reintroduce the idea, saying the profitable betting terminals are the only way to save the live horse racing industry in Idaho.

The Idaho Constitution specifically permits pari-mutual betting, like the pooled betting that occurs on horse races, but not if it involves “any electronic or electromechanical imitation or simulation of any form of casino gambling.” The new initiative declares that the “historical horse racing” terminals are pari-mutuel betting, and are not slot machines or simulations of casino gambling.

The Attorney General’s review notes that three other state attorneys general have reviewed the machines, commonly called “instant racing” terminals, and concluded they’re not pari-mutuel betting. In Wyoming, the state Supreme Court ruled in 2006 that they’re not, stating in its ruling, “We are not dealing with a new technology here, we are dealing with a slot machine that attempts to mimic traditional pari-mutuel betting. Although it may be a good try, we are not so easily beguiled.”

The attorneys general of Maryland and Nebraska have reached similar conclusions, the Idaho attorney general’s review reports.

It also says a clause in the proposed initiative seeking to forbid future legislative changes on the issue is “of no binding effect” legally.

After the Idaho Supreme Court’s ruling on Otter’s veto attempt was issued in September of 2015, hundreds of the machines across the state went dark, including some located at the Greyhound Park in Post Falls; many more at Les Bois Park horse race track in Boise; and 40 at an off-track betting parlor in Idaho Falls. Les Bois subsequently canceled all live horse racing, with its operators saying they couldn’t make it without the profits from the lucrative betting machines.

The proposed initiative would allow the machines at anyplace that is licensed for live racing or wagering on simulcasts of races, if the location either hosts at least eight days a year of live racing, or is the Greyhound Park in Post Falls. The park was grandfathered in to allow wagering there after Idaho banned live dog racing in 1996 amid concerns over reported abuse of greyhounds at the North Idaho dog track.

The initiative was filed by Benn Brocksome, a lobbyist with the Boise firm Strategies 360. He didn’t immediately return a reporter’s calls for comment on Tuesday afternoon.

Three other proposed initiative are now in the signature-gathering stage in Idaho with hopes of making the 2018 ballot: One to expand Medicaid; one to classify abortion as first-degree murder; and one to legalize medical marijuana.