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Blair Horner: Lessons From New York's Casino Vote

Election Day was a big one for the governor and other supporters of adding casinos in New York State.  The proposition, which passed with 57% of the vote, will mean New York will add up to seven casinos in a state that already has nine racetracks with video-lottery terminals and five casinos located on Native America reservations.

The first four casinos will be built upstate: the Catskills, Southern Tier and Albany area.  They will operate exclusively for seven years.  After that seven year period, there will be an opportunity to add three in the New York City area.

The law takes effect Jan. 1.

Casino proponents benefited from big spend.  Supporters of the casino proposal raised over $2.2 million.  The proposal also benefited from out-of-state money.  The national Teamsters union, Las Vegas-based Bally Gaming and EPR Properties, a Kansas City-based real estate trust, donated a total of $100,000 to New York Jobs Now, a coalition of labor and business groups pushing the casino amendment.

Opponents of casinos questioned the economic impact of the proposal.  Casinos, they said, amounted to a regressive tax on lower income individuals and gambling addicts.

But the proponents won.  New York State will expand the number of casinos.  However you felt about the decision, one problem was clear: the process of choosing the ballot language was deeply flawed.

New York law requires that the state Board of Elections develop the ballot language that goes along with a constitutional amendment.  Sometimes those amendments are quite technical and need a common sense explanation.

However, the law is weak in this area – there is no clear, election law requirement that the ballot language must be unbiased; there is no requirement that the public have a meaningful opportunity to comment on the drafted ballot language; and there is no place where the public can go to get unbiased information on the potential benefits and costs of the proposal.  I'll briefly touch on each of these areas.

1.  Unbiased language.  The state election law requires that the state Board of Elections ensure that it produce ballot language that "briefly, and in a clear and coherent manner using words with common and every-day meanings, the subject matter of the amendment, proposition or question."  There is no explicit requirement that the language be unbiased.  There must be.

2.  Comment period.  Current law requires that the Board must "at least three months prior to the general election" ...  "transmit to each county board of elections a certified copy of the text of each amendment."  In addition, current law allows that any legal action on the language must be brought "within fourteen days after the last day to certify the wording of any such abstract or form of submission."

There is no requirement that there be a public comment period on any proposed ballot language.  Under state law, any draft agency regulation is subject to a public comment period, amendments to the state constitution deserve it too.

3.  Public information.  As you know, when it came to the casino vote, virtually all the money spent was in support of the Proposal.  It's fair to say that supporters' ads were one-sided.  The government should provide a voters guide to ballot propositions.  According to the National Conference of State Legislatures, at least 16 states offer voters' guides (including Massachusetts) usually to help explain referenda questions on the ballot.  Ironically, New York City residents already get a voters guide (see: http://www.nyccfb.info/public/voter-guide/general_2013/ballot_proposals.aspx).

The rest of New York State should too.

When lawmakers return to the Capitol in January, fixing the ballot language process should be something that gets done quickly.

Blair Horner is the Legislative Director of the New York Public Interest Research Group.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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