State Politics

Was Otter’s veto a veto or not? Is ‘instant racing’ repealed or legal?

Constitutional questions are swirling around Gov. Butch Otter’s veto of a bill eliminating instant racing machines at three Idaho locations.

The questions themselves are novel, and any lawsuit challenging the constitutional validity of the veto will find itself in uncharted waters.

“We really haven’t seen this specific scenario,” former Secretary of State Ben Ysursa said Tuesday.


The key question centers around when the Senate received the vetoed bill from Otter’s office, and when he received it .

“The governor gets the bill for five days, and if he objects, he needs to get those objections into the originating body — or at least a member or presiding officer. That, of course, did not occur,” Ysursa said.


Ysursa said the veto is “of questionable legal validity” and will be decided by “the folks in the robes.” He isn’t alone in that assessment.

The Shoshone-Bannock Tribes released a statement Tuesday indicating that it believes the veto is void and the repeal of instant racing is now law.

Constitutional scholar David Adlersaid much the same thing, as did University of Idaho law professor Shaakirrah Sanders, who has taught classes in constitutional procedure.

“If it’s true that he did not return the bill until Monday, then it would also appear that he is not in compliance with (the constitution),” she said.


Otter vetoed the bill Friday without disclosing it to the public.

The Legislature had adjourned Thursday afternoon, setting Monday as its return date. Under the state constitution, Otter had until Saturday to inform the Senate that he had vetoed the bill and to return the bill to the chamber.

The Senate didn’t receive the bill until Monday.

Later that day, the Senate attempted to override Otter’s veto. Although the original repeal legislation passed with veto-proof majorities in both the House and Senate, six senators who originally voted for the repeal bill voted against overriding the governor.


Sanders said it is quite possible that any person in the state has standing to file suit against the governor for violating the constitution, not just members of the Senate or affected Indian tribes.

“This is really about (whether) the formal requirements for a veto have been complied with,” she said. “And I would think anyone would have standing to make sure that the requirements of the state constitution have been met in the legislative process.”


If the veto is invalid, then instant racing has been repealed.

“Article IV, Section 10, gives him (the governor) five days to both veto and return,” Sanders said. “If those two things are not done within those five days, then the bill automatically becomes law.”

Much hangs on how one interprets the word “adjournment” for the purposes of that section of the constitution.


At a Monday news conference, Otter said the constitution forbids the Legislature from not accepting a bill by adjourning. What Article IV, Section 10, of the constitution says, in fact, is that if the Legislature prevents return of the vetoed bill by adjournment, then the governor has 10 days to file the bill with the secretary of state instead.

But Ysursa said “adjournment” clearly means the end of the session, not what happens when the Legislature goes home each day.

If daily or weekend adjournments were counted in that provision, Ysursa said, it could open the door to all sorts of abuses, such as a governor trying to return a bill in the middle of the night — and never having to return it to the Legislature since it had adjourned for the day.


Otter said the delayed announcement was at the request of Senate leadership, who wanted to inform their caucuses before they read about it in the newspaper. But that explanation doesn’t seem to be holding water.

Many in the Senate — including Majority Leader Bart Davis, R-Idaho Falls, its second-ranking member — weren’t aware the bill had been vetoed until Monday morning, although President Pro Tem Brent Hill, R-Rexburg, said Otter informed him by phone Friday.

Hill said he did not ask Otter to keep the veto secret. Hill, Minority Leader Michelle Stennett, D-Ketchum, and Senate Secretary Jennifer Novak all filed letters into the Senate record stating that the vetoed bill had not been returned to the Senate until Monday.


Hill said the Senate has no plans to pursue the issue, but he left the question of whether other parties could do so.

The Coeur d’Alene Tribe, the primary backer of the repeal, so far has remained mum on whether it will challenge the veto in court.