by Max Brantley
Secretary of State Mark Martin has declared that the ballot title for Nancy Todd's casino amendment is not fair and complete and thus not legally sufficient for inclusion on the ballot.
However, both Arkansas statute and constitution provide a means for the proposal to be altered to "cure" the single deficiency that was found in Attorney General Dustin McDaniel's review.
For now, a spokesman said, it is the position of Martin's office that the administrative declaration means the amendment will not appear on the ballot.
Martin concurred with a finding by McDaniel, who'd earlier found that the title WAS fair and complete. But, in an opinion rejecting most of the objections raised by the committee fighting the casino amendment, McDaniel said on one key point that, "on reflection," the ballot title should have included a mention of the measure's potential impact on "electronic games of skill" at the Oaklawn and Southland racetracks. Both have been active in opposing casino measures aimed at this year's ballot because their electronic games mimic all the standard casino games. The challenge to the Todd amendment said the amendment could put other casino operators out of business by making her group the sole permitted casino operator in four places.
"...I believe it would have been advisable to expressly point out the Amendment's implied repeal of the EGS Act, which has, after all, resulted in significant casino gaming activity at the Oaklawn and Southland horse and dog racetracks," McDaniel's opinion said. "I cannot predict with certainty how the Arkansas Supreme Court might rule on a challenge based on this objection. The court may indeed be convinced that the adoption of the amendment would effect a change in law whose disclosure would have given a reasonable voter serious ground for reflection. Accordingly, should you choose to declare the ballot title insufficent on this ground, I believe a strong argument would be made in support of your action."
Martin concurred with McDaniel's opinion. In the process, they also rejected an argument by casino amendment opponents that the measure as written would violate state or federal constitutions or other regulations.
I have questions out, but I believe this now leaves it up to Todd and her backers, Branson businessmen,
to decide whether they'll challenge that determination in court. Wrong. The statute provides for a means of fixing shortcomings found in the review process, if possible.
If the Secretary of State declares the initiative petition legally insufficient, the sponsors of such measure may attempt to cure the insufficiency by correction or amendment, as provided in Arkansas Constitution, Amendment 7.
(b) Within fifteen (15) days after a correction or amendment is filed with the Secretary of State, the Secretary of State shall notify the petitioner and sponsor of the measure of this declaration by certified mail on the date that it is issued.
In this case, the fix could be simple — inclusion of a clause that said a court might find an effect on existing gambling operations. I'm still trying to reach Todd to see what her plans are.
UPDATE: She says she was "explore all options" to bring the measure to a vote of the people.
Meanwhile, a simpler question still remains to be answered: Will she submit sufficient signatures from registered voters to qualify for the ballot? The gathering of those signatures continues. Opponents of the measure may also mount further challenges on signatures, such as sufficiency of the notarization process and witnessing of signatures. This has been a familiar path of challenge by opponents of other ballot measures over the years. Todd has until Aug. 22 to turn in additional signatures. Needing 78,133 signatures, Todd in July turned in only 23,616 valid signatures among some 80,000 submitted. But by surpassing the threshold in raw signatures, she got additional time to seek the almost 56,000 additional needed. A statement follows from the anti-casino committee.
Below is a statement from Chuck Lange, Stop Casinos Now! Committee Chairman, on the Secretary of State's granting, in part, his petition concerning Nancy Todd's Casino Amendment:
"We are pleased today that the Secretary of State has agreed with our petition that Nancy Todd's ballot title is not fair or complete. Arkansas voters deserved to know the truth about Vegas-insider Nancy Todd's casino plan for our state. Like most of her shadowy campaign, the ballot title she peddled kept Arkansans in the dark.
"In an effort to protect Arkansans in the future, our campaign continues to investigate Nancy Todd's signature collection practices to root out any questionable activities that may have been used to obtain more than 56,750 invalid signatures.
We are thankful to all the members of the Stop Casinos Now! Committee who have worked very hard to get the truth out about Nancy Todd's casino proposal