Jeremy Curtis: Instant racing fails Idaho's constitutional tests


March 21, 2014 

Idaho's Constitution determines whether statutes passed by our legislators are valid and lawful. All elected officials take an oath to "support … the Constitution of the State of Idaho."

Instant racing should be opposed as unconstitutional in Idaho.

Idaho's Constitution deems all gambling to be "strictly prohibited" with three narrow exceptions: state lottery, charitable bingo and raffles, and pari-mutuel betting. It also prohibits any "form of casino gambling" and bans slot machines. Any law authorizing gambling contrary to these criteria is unconstitutional. Elected officials who support such laws act in breach of their oath-bound duty and should seek to repeal and oppose such laws.

In order for instant racing machines to be legal in Idaho they must:

1. Not be slot machines;

2. Not be in the form of casino gambling; and

3. Be in the form of pari-mutuel betting.

Are they slot machines? You put money in and push buttons with a chance of getting money back. The machines have bright lights and allow for fast, repetitive play. They make most gamblers poorer in exchange for an occasional winner. The machines only make money for the gambling establishment by returning less value in dollars to the population of gamblers than the dollars that are cumulatively lost by them. Consider this, if one gambler had total control over all the machines at one location, and constantly fed money into them, that person would usually lose, occasionally win, but always end up with less money in his or her pocket over time. The establishment would always collect the gambler's net loss over time. Instant racing machines look and function like other slots.

Are they in the form of casino gambling? There will be hundreds of machines lined up in a room. People will go there to gamble and drink. In the course of a month, most gamblers will lose, some will win, but winnings will be less than total losses of participating gamblers. It would be hard to imagine anything more in the form of casino gambling. A Google search for "list of casinos with historic racing" brings up Boise's Les Bois Park on Even Google knows that historic racing is a form casino gambling.

Are they pari-mutuel? Pari-mutuel is a French term that literally means "mutual wager" or "betting between ourselves." It is a system of gambling where participants pool their wagers, against one another, and each selects who they think will win a sporting event. The outcome of the event is not known before it takes place. The pool is closed to new wagers once the event has begun. The "house" that manages the wagers takes a cut of all wagers as a commission. Once a winner is determined, the payout is calculated. Example: There are three possible winners in a sporting event (A, B and C). Before the event, $500 is wagered that Team A will win, $400 on Team B and $250 on Team C. The pool is $1,150. Suppose the commission is $150. $1,000 remains to be divided pro-rata among the gamblers who picked the correct winner. Horse racing is an example of a type of gambling that is only legal when conducted in a pari-mutuel manner.

Instant racing is not conducted in a pari-mutuel manner. Wagers are not pooled "mutually" against any others. Instead, the gambling is against "the house" based on known outcomes accounted for in the machines. It allows for wagers after the recorded ("historic") races occurred. Instant racing is not pari-mutuel.

Instant racing is unconstitutional in Idaho.

Jeremy Curtis, JD, MS, of Meridian, is an Idaho native and CEO of a startup company providing Web-based educational solutions to law students.

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