The Arkansas Scholarship Lottery Amendment

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. ~C.S. Lewis

There are many applications of Lewis' wisdom, but none so obvious to me at the moment than the fight being waged against Arkansas' lottery amendment by the Arkansas Family Council.

Arkansas is one of only 8 states that does not have a state-sponsored lottery. Some of the other seven are expected (Alabama, Mississippi, Alaska, Wyoming and Utah). The remaining two are more unexpected (Nevada and Hawaii). I suppose Nevadans are happy enough with tax revenues from Las Vegas.

In any case, Lt. Gov. Bill Halter and friends launched a campaign to establish a state lottery exclusively benefiting education. Jerry Cox and his cronies at the Arkansas Family Council have filed an eleventh hour Hail Mary challenge to the ballot initiative. It was first challenged in the Pulaski County Circuit Court, where the FC lost, and it is now being appealed. I'll go through the three arguments raised by the Family Council and provide rebuttals from the pro-lottery group and some of my own commentary.

I. Omission of Material Provision

The FC's first contention is that the ballot title is misleading fails to tell the voters that they are voting yes or no to repeal an existing constitutional provision and replace it with language permitting the state legislature to establish a state lottery. The basic premise of the argument is that it doesn't tell voters that they have a choice between the status quo (no lottery) or amending the constitution (to have a lottery).

Halter responds, in part, with the first three words of the popular title, which is likely the only thing a voter will read before casting his vote. Those three simple words are "A constitutional amendment..." I realize Arkansas may not boast the most intellectually gifted populace, but really. I honestly can't even wrap my mind around this point.

II. Failure to Define "State Lotteries"

The FC's second point is that because the proposed amendment does not expressly definite "state lotteries" it could open the door to (gasp!) casino gambling. The FC has a bit of help here because of a couple of Attorney General opinions recommending (not requiring, however) that the lottery proponents define the phrase in the text of the proposed amendment. They also cite cases in other jurisdictions in which "lottery" was construed to permit video lottery terminals (New York) and casino gaming (Rhode Island and Kansas).

Halter responds with Arkansas case law in which the Court held, inter alia, that voters "know" what a lottery is. The distinction in that case, as argued by the FC, is that the proposed "state lottery" in that context was readily understood without definition when it was listed along with various other forms of gambling. Halter further argues that when the previous constitutional prohibitions against lotteries were adopted by Arkansas voters (in 1836, 1861, 1864, 1868 and 1874) the voters weren't so unintelligent as to require a definition of "lottery." Additionally, Halter cites the laws of the 42 states which permit lotteries. Only 3 of them contain a definition of "lottery."

III. No Adequate Information About Casino Gaming

The FC's final main argument is that the ballot title does not adequately inform voters about the effects on casino gaming. This contention is beyond ridiculous because the proposed constitutional amendment has no effect on casino gaming. This point is related to point 2 insomuch as, because "state lotteries" is not defined, it must be some underhanded scheme to establish casino gaming in the Natural State. The FC cites the lottery laws of California and Georgia which expressly prohibit casino gaming within the text of the law.

Halter's rebuttal again focuses on the plain meaning of "lottery" and the fact that Arkansas courts have refused to give credence to challenges based on the imagined consequences of a proposed amendment. "No reasonable person would confuse a State lottery with 'casino gaming.'"

Conclusion

From Halter's brief: By authorizing State lotteries to fund college scholarships the people will not be permitting “casino gaming.” Based on the utter lack of support for this argument in Arkansas law, a cynic might conclude that this argument is presented in an eleventh-hour lawsuit in order to grab free publicity and to scare the electorate with a false claim. The Scholarship Lottery Amendment will not permit “casino gaming.”

The Arkansas Family Council plays on the fears and prejudices of Arkansas voters. This was done in the 2004 election with the Marriage Protection Amendment. It is being done again this election with the lottery amendment and the adoption amendment (to be discussed soon). As an attorney, I can admire the legalistic, technical arguments raised by the FC. I think they are utterly without merit, but as a member of the profession I understand the place for such challenges. As a voter and as a libertarian, I want to see the substantive arguments. If you don't want a lottery, challenge it on the merits, let both sides duke it out and let the democratic process work. There is no challenge to the liberty of the citizens of the state of Arkansas, economic or otherwise. This is one for the voters now. So accept your impending loss with grace, Family Council, though I seriously doubt that's possible.