"It's crazy to have Louisiana gamblers mad at Oklahoma for taking away their Texans." – Kinky Friedman
As I noted earlier, legal gaming is coming to Texas. At first, I stated the question was not “if?”, but “when?” Now there is a new question presented and that is “how?”
There is a natural progression of how states legalize gaming: pari-mutuel betting such as dog tracks and horse tracks, state or multi-state lottery, video slot and bingo machines, and finally table games. A pattern that many states, including Texas, has followed. Given the buzz in Austin, I fully expect the 2009 Texas Legislature to legalize 8-Liners or slot machines, video poker, and video bingo at horse tracks, off-shore casino boats along the Texas Coast, and certain Native American reservations.
While the Texas legislature may approve legalized gambling, the more difficult task is how to get typically conservative Texans, especially in East and Central Texas, to vote for it. So, how?
To predict the future, we must first look to the past, the very recent past. Just this past August the Maryland Secretary of State, a former racing industry lobbyist, submitted the final ballot language for their proposed video slot machines. The ballot initiative as decreed the “Authorized Video Lottery Terminals to Fund Education.” That’s right, “to Fund Education.” As American essayist, Gore Vidal, once wrote, “As societies grow decadent, the language grows decadent, too. Words are used to disguise, not to illuminate, action: you liberate a city by destroying it. Words are to confuse, so that at election time people will solemnly vote against their own interests." Not only does the Maryland ballot language include the now ubiquitous language of taxing moral vices for benefit education, but it is also the language that law makers left out, which is important – “slot machines.”
According to an article by Tom LoBlanco of the Washington Times, the Maryland constitutional amendment contains not one mention of slot machines, only video lottery terminals. The ballot language further explains that the measure, “Authorizes the state to issue up to five video lottery licenses for the purpose of raising revenue for education of children in public schools.” As Mr. LoBlanco aptly points out, the ballot language does not inform the voters that one-half of the tax proceeds from legal gambling will go to the State’s general coffers and not to education. This, of course, is reminiscent of the ballot language, or absence thereof, used by Governor Ann Richards to pass the Texas lottery.
Critics of the Maryland gambling bill sued claiming that the ballot language was “misleading.” One month later, in September, a three-judge panel ruled that the ballot language was indeed misleading. However, the court also held that if the word “primary” was added before the word “education”, then the ballot language would most likely pass judicial muster. Most notably, however, the Maryland court did not require the inclusion of the term “slot machines.”
Writing misleading ballot language is a common practice for law makers who know that their propositions are unpopular with the voting public. There is not a better local example of using deceptive ballot language than the Trinity Parkway Project a/k/a Trinity Toll Road, where voting Yes meant No and voting No actually meant Yes.
When the Texas legislature passes legal gaming next year, and it will, and presents the initiative to Texans for a vote, don’t be surprised to find the phrase “to support education” on the ballot. Similarly, don’t be surprised when the term “slot machine” is conspicuously absent. As humorist Henry Wheeler Shaw said over a century ago, "There's a great power in words, if you don't hitch too many of them together."
Adam W. Vanek
avanek@tiptonjoneslaw.com
214-890-0991
