In the immortal words of that baseball great, Yogi Berra, the historical horse-racing initiative, Proposition 1, is “déjà vu all over again” for me. In 1986, Idaho voters approved an initiative in the general election to establish a state lottery. As Idaho Attorney General, I had warned earlier in the year that a state lottery might violate Idaho’s constitutional prohibition against gambling.

Jim Jones

Jim Jones

A lawsuit was commenced by anti-gaming forces to invalidate the voter-approved lottery. The Idaho Supreme Court ruled that the Idaho Constitution’s strong prohibition against gambling did, indeed, prohibit a lottery and that legislation initiated by the voters could not amend the constitution. So, the lottery failed.

However, lottery supporters were able to convince the Legislature to put a proposed constitutional amendment on the 1988 general election ballot to permit a state-run lottery. That amendment passed and resulted in the establishment of our present state lottery.

However, the strict prohibition against most other games of chance remains in the constitution to this day. The constitution “strictly” prohibits casino gambling, specifically including slot machines and “any electronic or electromechanical imitation or simulation of any form of casino gambling.”

This year, voters will have the opportunity to vote on Prop. 1, which would approve a form of gaming on “historical horse race terminals.” Proponents contend that this is mere “pari-mutuel betting” which is permitted by the constitution. Opponents say that the terminals are prohibited slot machines because no real horses are involved and there are no other attributes of traditional horse racing.

Attorney General Lawrence Wasden reviewed the initiative and pointed out that the Wyoming Supreme Court struck down a similar horse-racing scheme in 2006. In doing so, that Court said, “we are dealing with a slot machine that attempts to mimic traditional pari-mutuel wagering. Although it may be a good try, we are not so easily beguiled.” The Wyoming Legislature passed legislation in 2013 permitting this kind of gaming, provided that the “outcome is not completely controlled by chance alone,” and it is currently being conducted there. That does not necessarily detract from the reasoning in the Wyoming Supreme Court’s decision.

In his review, Attorney General Wasden did not render a hard-and-fast opinion as to the constitutionality of Proposition One under Idaho law. He did indicate that it would likely face a legal challenge if approved by the voters. Opponents of the initiative have vowed a court challenge if it is approved, just as the lottery opponents did in 1986.

Although I have absolutely no inside information as to how our present Supreme Court would rule on the constitutionality of the historical horse-racing plan, I think the smart money would be on a holding similar to the Wyoming Supreme Court. Idaho courts have generally taken a strict approach toward gaming activities.

Where the action is confined to a machine and there are no horses, no turf, no jockeys, no betting pool for each race and none of the other things that make a horse race exciting, it is likely that the plan will fade in the stretch just like those nags I occasionally bet upon in the distant past. An unfavorable court ruling would put everyone back on square one.

Jim Jones is the former chief justice of the Idaho Supreme Court.

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