Nebraska Supreme Court hears arguments on gambling initiative

The Nebraska Supreme Court heard arguments on gambling Wednesday, with two judges listening remotely (NET screenshot)
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September 2, 2020 - 5:58pm

The Nebraska Supreme Court heard arguments Wednesday on whether or not proposals to legalize casino gambling should be on the ballot this November.


Supporters of legalizing casino gambling circulated petitions and gathered enough signatures to put three measures on the ballot: one is an amendment to the state constitution that would allow all forms of gambling within licensed racetracks, a second is a law to establish a state gaming commission to regulate gambling, and a third is a law for a tax on gambling revenue, with 70 percent of the proceeds to go for property tax relief, 25 percent to the city or county where the racetrack is located, and 2.5 percent each to compulsive gambling assistance and the state’s general fund. 

After the petitions were submitted, Secretary of State Bob Evnen ruled that they should not appear on the ballot, in part because the way they are worded might confuse voters. Evnen cited arguments that under federal law, casinos would not be limited to racetracks, but could also be built on Indian tribal lands. Arguing for putting the measures on the ballot, lawyer Andy Barry addressed that issue.

“The most significant argument before the court is that the constitutional initiative would be a hidden authorization of tribal gaming. And this claim is wrong for two reasons. First, the constitutional initiative would not authorize tribal gaming. And second, any collateral effects that the constitutional initiative might have on tribal gaming are not hidden. They’re visible in plain sight,” Barry said.

The federal Indian Gaming Regulatory Act, or IGRA, says that if states allow casinos, they also have to negotiate with tribes to allow them, or tribes can go the federal government for permission. Arguing against allowing the measures on the ballot, lawyer Dave Lopez said the language about restricting gambling to racetracks might confuse a hypothetical voter in Pender, Nebraska.

“If they had said all forms of games of chance (are) authorized, or alternatively, as I hinted in the brief, if they had punted it to the Legislature for them to decide time, place and manner and thus and such, that would not be asking my hypothetical voter in Pender to agree to only have it at racetracks,” Lopez said.

Ho-Chunk Inc., the economic development arm of the Winnebago Tribe, is the major backer of the gambling initiative. But it already owns the Atokad racetrack in South Sioux City, and has been open about its desire to operate a casino there.

The other tracks in Nebraska are in Omaha, Columbus, Grand Island, Lincoln, and Hastings.

Evnen has said he needs the court to decide before Sept. 11 in order to know what to put on the November ballot.

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