Nebraska Voters Won't See "Historic Horserace" Measure on Ballot, High Court Rules

Nebrakska case law summary by Attorney Richard Clem: constitutional amendments.

State of Nebraska ex rel. Patricia a. Loontjer v. Hon. John A. Gale, Secretary of State . NE constitutional amendments

The Nebraska constitution prohibits the Legislature from authorizing games of chance, other than specific exceptions, including parimutuel betting on horseraces. In 2010, a bill was introduced to allow betting on "historic horseraces." But the Attorney General opined that this bill would violate the Constitution, citing Wyoming Downs Rodeo Events, LLC v. State, 134 P.3d 1223 (Wyo. 2006). As the Wyoming Supreme Court stated in that case: "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."

(It should be noted that the database of historic races included thousands of prior races. While handicapping data was provided to the bettor, current as of the date of the race, no identifying information was provided, and presumably the bettor would not know the actual outcome of the race prior to placing a bet.)

Undaunted, the supporters went back to the Legislature to put a Constitutional amendment on the ballot. The Legislature obliged, and passed a bill to put the amendment on the November 2014 ballot. The proposed amendment would do two things. First of all, it would allow wagering on "replayed" races. Secondly, it would specify how taxes on both live and replayed races must be appropriated. Such funds were to be expended only for property tax relief and for K-12 education.

The opponents then asked the Secretary of State to withhold the measure from the ballot, arguing that it covered two subjects and thus violated the "separate vote" provision of the Constitution. The Secretary of State rejected that argument, and the measure was set to appear on the ballot. The opponents of the measure then went to the Nebraska Supreme Court on a petition for mandamus. The Supreme Court action was brought by Patricia A. Loontjer, an Omaha resident with a group named Gambling With the Good Life. She argued once again that the proposed ballot measure violated the "separate vote" rule.

The high court first had to tackle the issue of whether the issue was ripe and justiciable. It held that it was. While a question of the validity of the underlying amendment would not be ripe for review, the court held that this challenge to the balloting procedure was both ripe and justiciable. And the "single vote" rule came under that category.

On appeal, the Secretary of State argued that the single vote rule was satisfied, since only one subject, parimutuel racing, was covered. Loontjer argued, however, that there were actually two subjects: Allowing the betting on historic races, as well as the separate question of appropriation of revenues from all types of parimutuel betting.

The court first held that the "single vote" rule for constitutional amendments is not the same as the "single subject" rule applied to legislation. Instead, the standard is more stringent. Two measures can be considered in a single vote only if there is a "natural and necessary connection." There must be a greater connection than being of the same "broad, general subject matter." The court noted that in this case, voters could be in favor of one part but not the other. Therefore, the test was not met.

For these reasons, the court held that mandamus should issue and the matter should be removed from the ballot.

288 Neb. 973 (Sept. 5, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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