Gambling and the Law®: Legal Gambling Wins Again at the Polls

In 2004, legal gaming had one of its best years ever, but you would not know that if you read only the summaries in the national press.

Reporters count up the number of failed campaigns for more gambling and find that they greatly outnumber the successes. They then interview the "antis," activists who oppose all legal gambling. The antis tell them that this may be the "tipping point."

The antis are saying what they truly believe – that the public is turning against all gambling – even though they are completely wrong. The problem is, they talk only to themselves and others who agree with their cause.

Politics is a game best avoided by anyone who gets swept away by the emotions of people around them. Supporters and opponents of ballot initiatives are even more likely than candidates to think they're winning when the trend is clearly against them.

Of course, gaming proponents are as susceptible to self-delusion as opponents. They ignore polls and waste millions of dollars and thousands of hours when they haven't a prayer.

In fact, I know of only one initiative campaign ever where proponents made a conscious decision to give up after spending tens of millions of dollars. California card clubs and racetracks backed Prop. 68, which would have given them slot machines, until polls showing they would lose badly voluntarily ended their campaign weeks before the election. This proved a double benefit: The clubs and tracks locked away several million dollars for future campaigns, while their opponents continued to run expensive TV ads on a campaign they already had won, wasting money they could have spent on fights in which it might have made a difference.

True believers, who almost never talk to their opponents or even neutral observers, are particularly likely to fall into the trap of believing their own press releases. Here's how the Rev. Tom Grey, executive director of the National Coalition Against Legalized Gambling (NCALG), viewed the November 2004 elections.

He stated that campaigns to expand gambling lost in at least five states and won in only one. His conclusion: "These results indicate there is a backlash of, 'Enough is enough.'"

The states where he believes gambling lost are Florida, Missouri, California, Nebraska, and Washington.

He can be forgiven for getting one of those wrong – Florida. Amendment 4 asked whether Broward and Miami-Dade counties should be permitted to decide for themselves whether they wanted slot machines at their seven tracks and jai alai frontons. At the time Grey was interviewed, Amendment 4 was trailing by a thousand votes out of seven million cast. But – surprise – this was Florida. The state Division of Elections found 79,000 absentee ballots from Broward County that they forgot to count on election day – and 94 percent of them were in favor of Amendment 4.

It's not a done deal; in March 2005, Broward voters said yes again, but Miami-Dade voters said no, and Gov. Bush is pushing for restrictive state laws. Still, Florida clearly voted in favor of slot machines.

Grey is right about the other states. In August, Missouri voters turned down a constitutional amendment to allow a casino in Rockaway Beach. On Nov. 2, voters in California turned down not only Prop. 68, but also Prop. 70, which would have allowed tribes unlimited casinos for 99 years. An initiative for privately owned slots to compete against tribal casinos was defeated in Washington. And voters in Nebraska rejected Amendment 3, a referendum from the Legislature, which would have allowed two casinos anywhere in the state, and Initiatives 417, 418, 419, and 420, which would have allowed two casinos in Omaha and 4,900 locally approved slot machines in bars, keno parlors, and racetracks.

But Oklahoma was a big loss for the antis. Tribes and tracks won the right to Class III gaming devices. Although these will not be called slot machines, gamblers won't be able to tell the difference. Racinos and tribal casinos will also have non-house banked games, like the pai gow poker played in California card clubs.

Even local elections split. Voters in Warren, Madison, and Dallas counties in Iowa rejected a proposed new riverboat casino. But in Lewis County, West Virginia, voters approved, by a 2-1 margin, turning the Civil War-era Weston Hospital into a large hotel casino. And in Kenosha, Wisconsin, voters approved a non-binding referendum for more than just another giant casino: This proposed $800 million casino resort will be owned by the Menominee Tribe of Wisconsin, but financed and run by the Mohegans of Connecticut. The enormously successful Mohegan Sun casino generates so much cash that the tribe can finance this new casino out of its cash flow.

In Virginia, proposals for OTBs for Manassas Park and in Greene County were defeated. But local voters in Henry, Scott, and Westmoreland counties authorized OTBs.

The only way antis can claim 2004 was a year of victories, let alone a turning point against legal gaming, is for them to ignore the past, present, and future. In the past, when gambling was outlawed just about everywhere, every proposal for legalization was soundly defeated. Today, perhaps as few as one in 10 pass, but there are only steps forward, never back. No state in 50 years has voted to eliminate a form of gambling once it has been legalized.

But the biggest blind spot the antis have is to pretend there is no elephant in their living room. Notice that Pennsylvania and New York are not on the Rev. Grey's list of states. In July 2004, the Pennsylvania Legislature and Gov. Ed Rendell authorized one of the most massive expansions of legal gambling in history. This year and last, Gov. Pataki signed and is still signing compacts left and right for tribal casinos, while the New York Legislature tries to work out the kinks in the law it passed creating racinos. Conveniently for the antis thesis, neither of these states required a vote by the people.

Maybe the people of Pennsylvania don't want 61,000 slot machines installed in casinos and racetracks throughout the state. Maybe the people of New York don't want tribal casinos and racinos. But the antis can't even get a proposal on the ballot to slow down this expansion, and no candidate has been defeated for being in favor of more legal gaming.

The antis are predicting that the spread of legal gambling is coming to an end. The way things are going, they may be right, but probably not in the way they mean: Once every state has all forms of legal gambling, there won't be any room for further growth. ♠

© Copyright 2005 by I. Nelson Rose. All rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I. Nelson Rose, Whittier Law School, Costa Mesa, California.

Professor Rose teaches at Whittier Law School in Costa Mesa and is recognized as one of the world's leading authorities on gambling law. His website is www.GamblingAndTheLaw.com.