Here’s a really old-fashioned political battle—one centered around the idea of betting on horse races—that raises some questions for the future, about what is real and what is electronically simulated, and also about Idaho’s constitution.

It comes in the form of a new proposed ballot initiative, the Save Horse Racing in Idaho Act.

The background runs this way.

Idaho’s constitution contains a stringent no-no on the subject of gambling, which a few generations back was used to shut down a briefly thriving slot machine business in the state. It still explicitly bans “slot machines” and specifically “any electronic or electromechanical imitation or simulation of any form of casino gambling.”

But gambling does have a way of poking its way back in. Voters chose to amend the constitution in 1986, for example, to allow for a state lottery, which still exists. The constitution now allows bingo-type games associated with charities. And it allows “Pari-mutuel betting if conducted in conformity with enabling legislation.”

The trick here is in the definitions. What exactly, for example, does “pari-mutuel betting” mean?

Strictly, it doesn’t mean what either the constitution or most people probably contemplate. It comes from a French term for “mutual betting” in which “a betting pool in which those who bet on competitors finishing in the first three places share the total amount bet minus a percentage for the management.” In effect, those bettors are to some extent betting against each other. Because that approach is common in betting on horse races (you bet on win, place or show), it’s loosely become a term of art for betting on horse races. You can see the language already is a little slippery here.

So we’re getting to: betting on horse races is OK under the constitution if done in compliance with state laws. And a ballot initiative, if passed, puts a state law in place.

But in its review of the initiative, the Idaho Attorney General’s office suggests this one may run afoul of the constitution anyway. And it has good reason to think so.

The initiative aims to legalize betting terminals, which are a lot like slot machines (depends, again, on how you define “slot machine”) which let gamblers place bets on random actual horse races from the past; it’s called “historical horse racing.” The legislature has at various times voted both to approve and disallow it. This would be betting undertaken by individuals, essentially against the machine (or the house), not against other bettors. At least not other actually, physical, live bettors, only theoretical ones, which turns the “pari-mutuel” element of this into a new kind of proposition.

The new initiative tries to elide some of this by proclaiming—defining—that the new terminals would be pari-mutuel gaming. But courts might look askance if they decide this is just an attempt to re-define a word. The point has come up in other states. In Wyoming, the Supreme Court said of something similar that, “we are not dealing with a new technology here, we are dealing with a slot machine that attempts to mimic traditional pari-mutuel wagering. Although it may be a good try, we are not so easily beguiled.”

Still, there is some new technology involved: This is something new.

And awaiting a clear settlement.

Randy Stapilus is a former Idaho newspaper reporter and editor and blogs at www.ridenbaugh.com. He can be reached at stapilus@ridenbaugh.com.

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