Statistics on Ohio's Taxes and Budget Plan

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                                             ACE IN THE HOLE:


      WHY OHIO BLUFFS WHILE OTHERS BITE ON LUCRATIVE CASINO ISSUES


                 AND HOW TO INDUCE BUCKEYE VOTERS TO GO “ALL-IN”


                                                BY: MIKE RASOR1




      I. Background…………………………………………………………………………...2

               a. Other Places to Gamble……………………………………………………...3

               b. Legal Forms of Gambling in Ohio…………………………………………12

               c. Thesis………………………………………………………………………...24

      II. Failed Attempts to Bring Casinos to Ohio………………………………………...25

               a. Voter Initiatives……………………………………………………………..25

               b. Indian Gaming……………………………………………………………....30

      III. Crafting an Amendment……………………………………………………………34

               a. Identifying the Opponents………………………………………………….35

               b. Identifying What Has Worked……………………………………………..40

               c. Identifying What Has Not Worked………………………………………...44

               d. Putting It All Together……………………………………………………...46

      IV. Conclusion…………………………………………………………………………...50




1
    Mike Rasor is Editor-in-Chief of the Akron Law Review.

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I.         BACKGROUND


           Sitting in the midst of a blossoming casino garden, Ohio remains in the stone age of


gambling law. Seventeen states generate more than five percent of their tax revenue from


gambling.2 Three of Ohio‟s five neighbors, plus nearby New York, allow casinos.3 A fourth,


Pennsylvania, has slot machines.4 In addition, Ohioans travel to Las Vegas and Canada for


gambling excursions.5 In November 2008, Ohioans rejected the most recent casino proposal by a


63% to 37% margin.6 Considering the economic hardship rampant in Ohio7 and the rest of the


nation‟s growing acceptance of gambling,8 it begs the question: Why won‟t Ohio allow casinos




2
  Pamela M. Prah, States Scramble for Gambling Jackpot, Stateline.org, Sept. 12, 2007 available at
http://www.stateline.org/live/details/story?contentId=239294 (last visited Sept. 30, 2008) (showing respective state
revenues in 2004-05 to be: Nevada (36.6 percent), South Dakota (17.7), West Virginia (12.1), Louisiana (10.9),
Michigan (9.9), Rhode Island (9.6), Mississippi (9.4), Indiana (8.6), Oregon (8.2), Missouri (7.8), Delaware (7.2),
Iowa (5.8), New Hampshire (5.8), Florida (5.6), New Jersey (5.4), New York (5.4), and Illinois (5.2)).
3
 Christopher B. McNeil, Interstate Compacts and the Gaming Industry: An Ohio Application, 9 GAMING L. REV.
449, 449 (2005) (noting that casino gambling is well-established in West Virginia, Indiana, Michigan, and New
York).
4
 Geoff Yuda, Opportunities on the Horizon; The Dawn of Gaming in Pennsylvania Holds Promise as a New Source
of Legal Business, PENN. LAWYER 14-15, January-February 2008.
5
    Id.
6
    Editorial, 0 for 4, AKRON BEACON J., Nov. 7, 2008.
7
 See Regional and State Employment and Unemployment Summary, Bureau of Labor Statistics, Oct. 24, 2008,
available at http://www.bls.gov/news.release/laus.nr0.htm (last visited Oct. 25, 2008) (showing that Ohio‟s
unemployment rate in September 2008 was 7.2 percent, with only six states having higher rates) [hereinafter, BLS
Report].
8
 Prah, supra note 2 (quoting Professor Richard McGowan from Boston College, who said Americans are more
supportive of gambling because the state revenue goes to pay for education, assistance for senior citizens, and
property-tax relief).


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to bolster the state‟s coffers? This article will prescribe an amendment to allay both sides‟


concerns and recommend the proper political avenues by which to achieve it.


A. Other Places to Gamble


           Four of the five states surrounding Ohio permit casinos and/or slot machines.9 Nearby


casinos in New York and Canada also are options for casino-goers.10 Kentucky is Ohio‟s only


neighbor that does not allow casinos.11


i.       Indiana


           Indiana is a good illustration of a neighbor that is prospering from casinos. In 1993, the


Indiana General Assembly overrode Governor Evan Bayh‟s veto to institute casinos on the Ohio


River and Lake Michigan.12 As of 2008, Indiana has thirteen casinos; they generated $818.98




9
    McNeil, supra note 3 at 449.
10
  See Bennett Liebman, New York‟s Expanded Gambling Statute Survives Judicial Scrutiny: A Closer Look at
Dalton v. Pataki, 9 GAMING L. REV. 579, 579 (2005); Adam Nossiter, Losses May Signal End of Gambling‟s Lucky
Run, N.Y. TIMES, Nov. 19, 1996.
11
  Jeffrey R. Soukup, Rolling the Dice on Precedent and Wagering on Legislation: The Law of Gambling Debt
Enforceability in Kentucky After Kentucky Off-Track Betting, Inc. v. McBurney and KRS § 372.005, 95 KY. L.J.
529, 529 (2005).
12
  John Warren Kindt, Subpoenaing Information from the Gambling Industry: Will the Discovery Process in Civil
Lawsuits Reveal Hidden Violations Including the Racketeering Influenced and Corrupt Organizations Act?, 82 OR.
L. REV. 221, 276-77 (2003) (describing the bill‟s passage). It was included as a provision of the biennial budget. Id.
A group of citizens said it unconstitutionally granted the privilege of geographic casino monopolies to some citizens
but not others. Id. The case went to the Indiana Supreme Court, which dismissed it for procedural reasons and
never decided the constitutional challenge on the merits. Id.


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million of tax revenue in fiscal year 2008.13 Almost all of the Indiana casinos are on Lake


Michigan or the Ohio River, which satisfies the legislature‟s intent to promote tourism.14


Targeting tourists ensures that more of the costs of gambling fall on nonresidents.15 In 2007,


Indiana also allowed its horse tracks to operate slot machines, which generated $550 million in


revenue and resulted in property-tax cuts.16


ii. Pennsylvania


           In 2004, the Pennsylvania General Assembly authorized a maximum of 61,000 slot


machines at fourteen locations.17 As of September 2008, seven Pennsylvania locations operate a



13
  Indiana Gaming Commission, Annual Report to Governor Mitch Daniels 8-9, (2008) available at
http://www.in.gov/igc/files/FY2008-Annual.pdf (last visited Sept. 30, 2008) (noting that $738.9 million came from
wagering tax and $80 million from admissions tax) [hereinafter, Indiana Annual Report]. The wagering tax fell 3.77
percent from FY 2007; the admissions tax was down by 4.26 percent. Id. December of 2007 and January and
March of 2008 were particularly poor months for Indiana‟s casinos, with admissions revenues falling by double-
digit percentages. Id. at 1. Bad weather and $4-a-gallon gas prices were causes for the declining tax revenue. Id.
14
     IND. CODE § 4-33-1-2 (2008) (stating the legislative intent to promote economic development and tourism).
15
  See Indiana Gaming Commission, A Cost-Benefit Analysis of Indiana‟s Riverboat Casinos for FY 2005 15, Jan.
17, 2006, available at http://www.in.gov/legislative/igareports/agency/reports/IGC02.pdf (last visited Oct. 25, 2008)
(noting that many of the casinos pull visitors from nearby, yet out-of-state, major metropolitan areas) [hereinafter,
Indiana Cost-Benefit Analysis]. Three casinos are close to Cincinnati: Argosy Casino in Dearborn County, Grand
Victoria in Ohio County, and Belterra Casino in Switzerland County. Id. Argosy Casino funded the opposition to
Ohio‟s Issue 6, which would have established a casino just 40 miles from Argosy. Michael Sangiacomo & Aaron
Marshall, Issue 6 on Ballot Despite Rival‟s Effort Against Casino Group, CLEV. PLAIN DEALER, Sept. 26, 2008, at
B3.
16
   Prah, supra note 2 (adding that Indiana was the 12th state to allow horse tracks to operate slot machines); Howard
Greninger, Property Taxes Down for Vigo Residents: Most Home Owners Will See Average of 39 Percent
Reduction, THE TRIBUNE-STAR (Terre Haute, Ind.), Aug. 5, 2008 (noting that license fees for slot machines at horse
tracks amounted to $250 million, and that new revenue source was one of two causes for property taxes to fall 39
percent in Vigo County, Ind.).
17
  Yuda, supra note 4 (stating that Pennsylvania‟s gambling industry is booming and that should mean there are
plenty of new opportunities for attorneys).


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combined 16,831 gambling machines.18 One of the legislature‟s main purposes was to raise


revenue.19 Pennsylvania achieves that goal by assessing the nation‟s highest tax on slot


revenues.20 In fiscal year 2007/2008, gamblers wagered $17.29 billion, which generated $477.6


million in state taxes, $56.2 million for local government revenue, and $138.8 million for the


state tourism and race horse funds.21


iii. New York


           Although not a direct neighbor of Ohio, New York is close enough to draw casino-goers.


Indian casinos have existed in New York since 1993 when Governor Mario Cuomo signed a


compact with the Oneida Indian Nation.22 The St. Regis Mohawk Tribe opened New York‟s




18
  Revenue FY 2008/2009, Pennsylvania Gaming Control Board, available at
http://www.pgcb.state.pa.us/files/revenue/Gaming_Revenue_Monthly_FY20082009.pdf (last visited Oct. 25, 2008)
(showing that Philadelphia Park has the most gambling machines with 2,911). The Meadows – located in
Washington, Pa. – has the fewest with 1,825. Id.
19
  4 PA. CONS. STAT. ANN. § 1102(3) (2004) (listing the state‟s other objectives: 1) regulating gaming, 2) creating
jobs, particularly in the live horse racing industry, 3) bringing in new revenue, 4) assisting the horse racing industry,
5) preventing monopolies, 6) enhancing tourism, 7) deeming the license a privilege revocable without compliance
with the law, 8) strict monitoring of the industry, 9) strict financial monitoring, 10) considering the social effects of
gambling, and 11) preventing perceptions of corruption and ensuring bipartisan oversight).
20
     Yuda, supra note 4, at 15 (noting that the state assesses a 55 percent tax on gross slot revenues).
21
   Revenue FY 2007/2008, Pennsylvania Gaming Control Board, available at
http://www.pgcb.state.pa.us/files/revenue/Gaming_Revenue_Monthly_FY20072008.pdf (last visited Sept. 30, 2008)
(tallying grand totals of $22.3 billion in wagers, $632.2 million in state taxes, $74.4 million in local government
revenue, and $167.4 million for the tourism and race horse funds) [hereinafter, Pennsylvania Revenue].
22
  New York State Racing and Wagering Board, Indian Gaming, Nov. 24, 2004,
http://www.racing.state.ny.us/indian/indian.html.


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second casino in 1999.23 New York quickly and dramatically expanded its gaming law when


faced with the economic difficulties that followed the attacks of September 11, 2001.24


Governor George Pataki‟s legislation authorized six additional Indian casinos.25 The new law


also allowed New York to participate in a multi-state lottery and permitted video lottery


terminals (VLTs) at many of the state‟s racetracks.26


            Casino opponents challenged Indian gaming in 2002 as being contrary to New York‟s


constitution, which bans commercial gambling.27 The plaintiffs also claimed that the VLTs were


actually dressed-up slot machines, which are unconstitutional.28 After some disagreement by the


lower courts, the New York Court of Appeals dismissed the claim, upholding Indian gaming




23
     Id.
24
  Liebman, supra note 10, at 579 (noting that Governor George Pataki‟s plan was introduced on Oct. 24, 2001, and
the governor signed it into law five days later).
25
  Id. (noting that the governor would still have to approve the compacts and it would be grounds for disapproval if
the tribes did not allow rights of labor unions, adequate liability insurance, or a civil recovery system).
26
  Id. at 580 (adding that the state‟s most prestigious tracks – Belmont Park and Saratoga – were not authorized for
the video lottery).
27
     Dalton v. Pataki, 5 N.Y.3d 243, 251 (2005).
28
     Id. at 263.


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because the federal Indian Gaming Regulatory Act preempts the state constitution.29 The high


court upheld VLTs as being an actual lottery, rather than a system of slot machines.30


            The expansion of gambling has translated into economic benefits for New York. In 2007,


the VLTs generated $875 million in state revenue.31 Although states are not permitted to directly


tax Indian gaming, the indirect benefits are substantial.32 For example, in 2006 the Oneida


Nation employed more than 5,000 workers, who paid $5.6 million and $3.4 million in state


property and income taxes, respectively.33


iv. West Virginia




29
   Id. at 259 (quoting the IGRA: “The language of the statute is clear that class III gaming will be permitted when
„located in a State that permits such gaming for any purpose by any person, organization, or entity‟”). New York
permitted class III gaming for charitable purposes. Id. Therefore, the court held that Indian tribes were permitted to
open a business that conducts class III gaming, as well. Id. See Part II.B., infra.
30
     Id. at 265 (“It is of no constitutional significance that the tickets are electronic instead of paper.”).
31
  New York State Lottery, Basic Financial Statements 7, March 31, 2008, available at
http://www.nylottery.org/storelayoutimages/nyl_fnl_stmnt.pdf. Revenue is defined as amount of money played
minus prizes awarded. Id. at 13.
32
  New York State Racing and Wagering Board, supra note 22 (providing answers to frequently asked questions,
such as “Why aren‟t Indian casinos taxed?”).
33
  National Indian Gaming Association, The Economic Impact of Indian Gaming in 2006 19, available at
http://www.indiangaming.org/info/pr/press-releases-2007/NIGA_econ_impact_2006.pdf (adding that “multiplier
spending” by these employees generated more than $30 million in the area surrounding the Turning Stone Casino
Resort in Verona, N.Y.).


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           In 2001, the West Virginia state legislature authorized slot machines.34 It quickly paid


dividends.35 By 2006, gambling taxes were West Virginia‟s third-largest source of revenue.36 In


2007, West Virginia‟s legislature further expanded gambling.37 The state gave counties with


racetracks the opportunity to approve or reject table games at their respective tracks.38 At the


time, Iowa was the only other state to allow table games at racetracks.39 While many states have


expanded gambling during economic downturns, West Virginia was experiencing a boom from


the coal industry when it authorized table games.40 The real impetus came from the racetrack


owners.41 Ted Arneault, president of Mountaineer Racetrack and Gaming Resort, lobbied for the


gambling expansion because of increasing competition from Pennsylvania.42 With 12.1 percent


of its revenue coming from gambling, West Virginia, perhaps more than any other state with so

34
  Tony Batt, West Virginia Approves Government-Licensed Slot Machines, LAS VEGAS REVIEW JOURNAL, April 25,
2001 (noting that citizens are permitted to own slot machines, just not gamble on them).
35
     Kris Wise, Arneault Says It‟s Time for Vote, CHARLESTON DAILY MAIL, Jan. 23, 2006.
36
     Id. (noting that only state sales and income taxes brought in more money).
37
     Ed Peeks, Table Games to Fatten Tax Rolls, CHARLESTON GAZETTE, March 20, 2007.
38
     Id. (mentioning poker, blackjack, and Keno). The legislature‟s purpose was to increase tourism revenue. Id.
39
     Jake Stump, Iowa Only Other State with „Racino‟ Table Games, CHARLESTON DAILY MAIL, Nov. 29, 2006.
40
 Editorial, W. Va. Needs to Hedge its Bets, CHARLESTON DAILY MAIL, Nov. 21, 2007 (suggesting, however, that
West Virginia relies too heavily on revenue from “racinos”).
41
     Wise, supra note 35 (reporting on an owner‟s speech to the Charleston Rotary Club).
42
  Id. (“Everybody in the state benefits from our revenues. We've been a good corporate citizen and a core industry
for West Virginia, and we hope legislators now will see fit to let us keep that economic advantage.” (quoting
Arnealut)).


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few casinos, has profited greatly from gaming.43 West Virginia‟s revenue totals are almost


certain to grow as the racetracks begin to implement table games.44


v.     Michigan


           Michigan, Ohio‟s northeastern neighbor, is home to twenty-one casinos. Twelve tribes


operate a total of eighteen casinos,45 which contain a state total of 18,589 slot machines.46


Although Michigan cannot tax the sovereign tribes, the state receives funds that Michigan and


tribes agreed upon in their tribal-state compacts.47 Michigan authorized tribal casinos with two


compacts through which the tribes pay a certain percentage of their after-payout profit from slot


machines (called the “Net Win”).48 Each tribe must pay 2% annually to local governments.49 In




43
  Prah, supra note 2 (showing that only South Dakota and Nevada received a greater share of their state revenue
from gaming in 2004-05) Id.
44
  Sunday Gazette-Mail, Entertainment Is a Sure Bet at West Virginia‟s Casinos and Racetracks, Feb. 3, 2008
(noting that three of the four tracks have implemented table games so far).
45
  Map of Michigan Native American Casinos, Michigan Gaming Control Board, available at
http://www.michigan.gov/mgcb/0,1607,7-120-1380_1414_2179---,00.html (last visited Nov. 20, 2008).
46
  Number of Indian Gaming Slots, Michigan Gaming Control Board, available at
http://www.michigan.gov/documents/Number_of_Indian_Gaming_Slots_76597_7.pdf (last visited Nov. 20, 2008).
47
  Tribal Gaming Q & A, Michigan Gaming Control Board, available at http://www.michigan.gov/mgcb/0,1607,7-
120-1380_1414_43365---,00.html (last visited Nov. 20, 2008).
48
  Id.; Tribal Casino Slot Revenue Payments & Slot Information, Michigan Gaming Control Board, available at
http://www.michigan.gov/mgcb/0,1607,7-120-1380_1414_27146---,00.html (last visited Nov. 20, 2008).
49
     Id. The eight tribes under the 1993 compact operate 15 of the 18 casinos. Tribal Gaming Q & A, supra note 47.


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2007, the 2% payments amounted to $17.31 million.50 The four tribes that signed the 1998


compact must also pay 8% to the State of Michigan Strategic Fund.51 In 2007, revenue from the


8% payments totaled $11.35 million. 52 Therefore, tribes paid a grand total of $28.66 million in


2007 because of their tribal-state compacts with Michigan.53


            In 1996 Michigan voters also approved three non-Indian casinos in Detroit.54 In a


surprise result, the referendum passed by three percentage points.55 Opponents were so certain


the measure would fail that they “hardly bothered to mount a campaign.”56 Advocates of the


measure insisted that gambling money was trickling across the Detroit River to the new Casino


Windsor in Ontario.57 The MotorCity Casino, Greektown Casino, and MGM Grand Detroit each




50
  2% Payments to Local Governments, Michigan Gaming Control Board, Nov. 7, 2008, available at
http://www.michigan.gov/documents/2_percent_Payments_76617_7.pdf.
51
  Tribal Casino Slot Revenue Payments & Slot Information, supra note 48. The four tribes under the 1998 compact
operate three of the 18 casinos. Tribal Gaming Q & A, supra note 47.
52
  8% Payments to Local Governments, Michigan Gaming Control Board, Nov. 7, 2008, available at
http://www.michigan.gov/documents/8_percent_Payments_76616_7.pdf.
53
     Id.; 2% Payments to Local Governments, supra note 50.
54
  Detroit Casinos, Michigan Gaming Control Board, available at http://www.michigan.gov/mgcb/0,1607,7-120-
1380_1412---,00.html (last visited Nov. 20, 2008).
55
     Nossiter, supra note 10.
56
     Id.
57
     Id. (noting the casino‟s success).


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received their licenses in 1999 or 2000.58 Unlike the Indian casinos, Michigan is free to tax the


Detroit casinos.59 Each casino pays 12.1% of its annual Net Win to the state for K-12 education


funding.60 That total reached $108.14 million in 2007.61 The Detroit casinos also pay 11.9% of


their Net Win to the city for various initiatives designed to revive the local economy and hinder


violence.62 The casinos also pay millions annually for various fees.63 Although the expansion of


gambling has helped generate revenue, the sheer amount of casinos in Michigan might have


oversaturated the market.64 The Greektown Casino entered bankruptcy in May 2008.65


vi. Kentucky




58
     Detroit Casinos, supra note 54.
59
  See, e.g., Fees and Wagering Tax Information, Michigan Gaming Control Board, available at
http://www.michigan.gov/mgcb/0,1607,7-120-1395_1469_47836---,00.html (last visited Nov. 20, 2008).
60
     Id.
61
  Michigan Gaming Control Board, Annual Report to the Governor 21, available at
http://michigan.gov/documents/mgcb/annrerp07_231975_7.pdf (last visited Dec. 22, 2008) [hereinafter, Michigan
Annual Report].
62
     Id.
63
   Fees and Wagering Tax Information, supra note 60 (listing the one-time application fee of $50,000, the annual
license fee of $25,000, the annual state service fee of about $8.33 million, and the municipal services fee of $4
million).
64
     Editorial, Michigan on its Way to a Gambling Glut, KALAMAZOO GAZETTE, Aug. 14, 2008.
65
     Id. (noting that Greektown Casino has continued to expand regardless).


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             Although Kentucky bans casinos, it might not be that way for long with polls showing


that Kentuckians are increasingly supporting a casino initiative.66 Whether to allow casinos has


been one of Kentucky‟s most heavily debated topics in the past decade.67 Governor Steve


Beshear suggested in November 2008 that the state should pass a constitutional amendment that


would permit casinos.68 Casinos, the governor believes, could help cure Kentucky‟s projected


$300 million budget shortfall.69




B.         Legal Forms of Gambling in Ohio


             Weekend trips to casinos in neighboring states can ruin a family or bank account just as


easily as excursions to a casino inside Ohio.70 While Ohioans can travel to a casino, they also


can legally gamble within Ohio‟s borders thanks to several gambling exceptions within the Ohio




66
     Id. (quoting a poll that the author admitted was conducted by casino advocates).
67
     Id.
68
  Ryan Alessi, Beshear Pushing to Raise Revenue, LEXINGTON HERALD-LEADER, Nov. 7, 2008, at 1 (noting that an
amendment would require a super-majority vote of 23 Kentucky senators).
69
     Id. (suggesting also a 30 percent tax increase on cigarettes).
70
  See generally id. (noting bankruptcies). See, e.g., Mike Barajas, Some Local Taverns, Service Clubs Flip Switch
on Now-Legal Keno Machines, ATHENS NEWS, Aug. 7, 2008 (noting that Ohioans spent $2.259 billion on the state
lottery in 2007).


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Revised Code. By comparing these exceptions with casino gambling, one can see that a casino is


not such a large step for Ohio to take.


i. Comparing the Ohio Lottery to Casino Gambling


           Prior to 1973, the Ohio Constitution declared that lotteries “for any purpose whatever,


shall be forever prohibited in this State.”71 But voters adopted the Ohio Lottery in 1973 by a 2-


to-1 margin.72 The purpose was to compete with Michigan and Pennsylvania.73 Losing


Ohioans‟ money to neighboring states is a common argument for allowing casinos today.74


           In any given month, the Lottery Commission usually produces about four different


scratch-off games that cost $20 each.75 Additionally, patrons at 9,000 Ohio retailers can


purchase several varieties of $10 games and about 15 varieties of $5 games.76 A scratch-off



71
     OHIO CONST. art. XV, § 6
72
  Thomas Suddes, Betting on Voters Not to Notice?, CLEV. PLAIN DEALER, June 17, 2007, at M1; OHIO REV. CODE
ANN. § 3770.03(A) (2007) (granting to the lottery commission the power to create rules regarding the type of
lottery, the price of tickets, and the nature and amount of prizes).
73
     Id.
74
     See History of the Lottery in Ohio, AKRON BEACON J., Jan. 16, 2002, at A5.
75
  Ohio Lottery Instant Games, http://www.ohiolottery.com/games/instants/AllGames.aspx (last visited Oct. 27,
2008) (showing the “$5 Million Cash Winfall” [sic] game to pay out $5 million over a 20-year span). Top prizes for
the other three varieties of $20 tickets are $2 million. Id.
76
   Id. (listing the top prizes for the $10 tickets, which range from $500,000 to $2 million). The top prizes for $5
tickets range from $100,000 to $250,000 with a separate prize granting the winner $25,000 per year for life. Id. The
$2 and $3 tickets grant prizes between $8,888 and $30,000 with a separate prize granting the winner $10,000 per
year for life. Id. The $1 tickets grant prizes between $333 and $10,000 with a separate prize granting the winner
$5,000 a year for life. Id. Find an Ohio Lottery Retailer Near You,

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game takes less time to play than a hand of blackjack.77 Buying one is usually more convenient


than driving to the nearest casino.78 With $20 and $10 tickets available, an Ohioan can gamble


in the same increments as is available with a roulette wheel.79


            Ohioans spent $2.259 billion on lottery tickets in 2007.80 That means the average lottery-


eligible Ohioan spent $259.66 in 2007.81 As the seventh-most populous state,82 Ohio ranked


ninth nationally in lottery sales in 2007.83


            The question is: “How did lottery advocates succeed?” The proposal for the 1973


amendment supported schools.84 In 2007, the commission gave $669.3 million to Ohio schools

http://www.ohiolottery.com/agents/Retailer_Search.aspx (last visited Sept. 23, 2008) (noting the amount of
retailers).
77
     See id. (calling them “Instant Games”).
78
     See id. (stating that there are 9,000 Ohio Lottery retailers).
79
     Ohio Lottery Instant Games, supra note 75.
80
     Barajas, supra note 70 (stating that $1.35 billion of that money went to pay winners).
81
  Id.; Ohio – Fact Sheet, U.S. Census Bureau, available at
http://factfinder.census.gov/servlet/ACSSAFFFacts?_event=&geo_id=04000US39&_geoContext=01000US|04000U
S39&_street=&_county=&_cityTown=&_state=04000US39&_zip=&_lang=en&_sse=on&ActiveGeoDiv=&_useE
V=&pctxt=fph&pgsl=040&_submenuId=factsheet_1&ds_name=null&_ci_nbr=null&qr_name=null&reg=null%3A
null&_keyword=&_industry= (last visited Sept. 23, 2008) (showing there are approximately 8.7 million Ohioans
age 18 or older). The “$259.66” figure is calculated by dividing the $2.239 billion by 8.7 million lottery-eligible
Ohioans. Id.
82
  Population Projections, U.S. Census Bureau, available at
http://www.census.gov/population/www/projections/natproj.html (then click the top link) (citing the 2000 Census).
83
  Ohio Lottery Facts, http://www.ohiolottery.com/about/facts.html (last visited Oct. 26, 2008) (listing the per capita
spending on lottery as $193 per year). However, that figure does not take into account that only a certain part of the
population is eligible to play the lottery. Id. Assuming some minors illegally play, the actual per capita amount is
somewhere less than the $259.66 figure. Id. See Paul Walsh, National Ranking of Lottery Games Scores Minnesota
Near Top, Jan. 2, 2008 available at http://www.startribune.com/local/12971101.html (listing the top five states as
being California, Pennsylvania, Texas, Iowa, and Minnesota).


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after paying the winners and administering the program.85 The Ohio Lottery also produces state


revenue through the taxes on winnings and by extracting from winners any debts they owe to the


state.86 However, because the lottery revenue is coming almost exclusively from Ohio residents,


one might analogize it to a tax – a very regressive tax that has a disproportionate effect on poor




84
     OHIO CONST. art. XV, § 6

           (“. . . provided that the entire net proceeds of any such lottery are paid into a fund of the state
           treasury that shall consist solely of such proceeds and shall be used solely for the support of
           elementary, secondary, vocational, and special education programs as determined in
           appropriations made by the General Assembly . . .”).

See also OHIO REV. CODE ANN. § 3770.06(B)

           (“Whenever, in the judgment of the director of budget and management, the amount to the credit
           of the state lottery fund that does not represent proceeds from statewide joint lottery games is in
           excess of that needed to meet the maturing obligations of the commission and as working capital
           for its further operations, the director shall transfer the excess to the lottery profits education fund
           in connection with the statewide lottery. . . . The lottery profits education fund shall be used solely
           for the support of elementary, secondary, vocational, and special education programs as
           determined in appropriations made by the general assembly, or as provided in applicable bond
           proceedings for the payment of debt service on obligations issued to pay costs of capital facilities,
           including those for a system of common schools throughout the state pursuant to section 2n of
           Article VIII, Ohio Constitution.”).
85
     Barajas, supra note 70.
86
  OHIO REV. CODE ANN. § 3770.073(A) (instructing the lottery commission to withhold debts to the states from any
awards of $5,000 or more, including taxes and worker‟s compensation premiums); OHIO REV. CODE ANN.
3770.072(B); OHIO REV. CODE ANN. 5747.062 (requiring a 6 percent deduction in prizes of more than $5,000 before
further income taxes are levied).


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people.87 Casinos, by contrast, generally pull from a better-educated and higher-paid base of


patrons.88


           Despite opponents‟ attempts to eliminate the lottery, it has expanded since its inception in


1973.89 The institution grew sizably in August 2008 when the Ohio Lottery unveiled Keno,


which one editorial called “remote-control slot-machine[s].”90 More than 1,000 businesses


agreed to allow the Ohio Lottery to place an electronic gaming board on their premises.91


Governor Ted Strickland hoped it would help bar owners revive profits after Ohio‟s smoking ban


deterred many bar patrons.92 By encouraging the combination of gambling and drinking, Keno‟s


side effect is to narrow the gap between the lottery and a casino. In fact, Keno is only available


87
  See e.g. Joseph McCrary & Thomas J. Pavlak, Who Plays the Georgia Lottery? Results of a Statewide Survey,
Univ. of Ga. (2002), available at
http://www.ncalg.org/Library/Studies%20and%20White%20Papers/Lotteries/Georgia%20Lottery.pdf (reporting that
a Georgia resident without a high school degree or GED is four times more likely to buy a lottery ticket than a
Georgia resident who has education beyond high school).
88
  See e.g. Ricardo C. Gazel &William N. Thompson, Casino Gamblers in Illinois: Who Are They?, Univ. of Nev.
Las Vegas (1996), available at http://www.bettergov.org/pdfs/policy_gambling_demographics_1996.pdf (reporting
their survey that a majority of patrons at Illinois riverboats have a high school degree and 38.4 percent have college
degrees).
89
  Horstman, supra note 212 (describing an effort by a Methodist pastor to abolish the state lottery). The pastor, the
Rev. Tom Grey, saw a proposed expansion of the lottery to multi-state games as an opportunity to mobilize the
lottery‟s opposition. Id.
90
 Thomas Suddes, Editorial, Statehouse Republicans Seem to Roll Over, Play Dead for Strickland, DAYTON DAILY
NEWS, Aug. 25, 2008, at A12 (blaming Republicans for not standing up to Governor Strickland, who allowed the
Ohio Lottery to establish Keno).
91
  James Nash, Bars Betting that Keno Will Help Lure Customers, COLUMBUS DISPATCH, Aug. 4, 2008 (quoting an
official as saying she hopes to have 2,000 businesses operating a Keno board by the end of the 2008).
92
     Id. (noting that the Ohio Lottery also expects Keno to produce an extra $73 million per year for public schools).


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to Ohio businesses with a Class D liquor permit.93 Considering the variations and high stakes of


the Ohio Lottery, finding a meaningful distinction between playing a lottery ticket and pulling


the slot-machine arm is difficult. And with Keno, the distinction became even smaller.


ii. Comparing Bingo to Casino Gambling


          In 1975, Ohio voters amended the state constitution to allow charitable bingo.94 The


subsequent statute contained a wealth of regulations.95 For a license, the state requires the


charity to pay anywhere between $200 and $5,000, plus one percent of annual profits.96 The


legislature closely monitors bingo supplies, as well.97 Distributors of bingo supplies cannot


operate without a distributor license.98 Nor may a distributor sell supplies to a charity that does


93
  Jim Carney, Ohioans Betting New Keno Game Boosts Fun, Profit, AKRON BEACON J., Aug. 5, 2008, at B1 (stating
that the lottery‟s created the Class D liquor license requirement to ensure that only adults could play Keno); Ohio
Liquor Control Info and Services, Ohio Division of Liquor Control, available at
http://www.liquorcontrol.ohio.gov/liquor16a.htm (last visited Oct. 26, 2008) (explaining that liquor permit classes
differ based on the community in which they are granted). Class C permits are issued per ratio of every 1,000
persons. Id. Class D permits are issued per ratio of every 2,000 persons. Id.

  OHIO CONST. art. XV, § 6 (“The General Assembly may authorize and regulate the operation of bingo to
94

be conducted by charitable organizations for charitable purposes.”).
95
  See, e.g., OHIO REV. CODE ANN. § 2915.09(A)(2) (2004) (listing, in detail, the proper expenditures for bingo
revenue).
96
  OHIO REV. CODE ANN. § 2915.08(A)(1) (2003) (requiring the licensee to pay a fee on a sliding scale that depends
on how profitable the licensee‟s bingo operation is).
97
     See OHIO REV. CODE ANN. § 2915.081 (2004).
98
  OHIO REV. CODE ANN. § 2915.081(E) (2004) (granting the attorney general the power to refuse a license to any
distributor who has been convicted of a felony, convicted of a gambling offense, made a material misstatement in its
application for a distributor‟s license or similar gambling license, or had a gambling license revoked or suspended in
any state). The attorney general may not grant a license to someone who is involved with conducting bingo on
behalf of a charity. Id.

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not have its bingo license.99 Manufacturers of bingo supplies have similar duties; they must be


licensed and only can deal with licensed distributors.100 It is a first-degree misdemeanor for a


manufacturer or a distributor to violate the statute.101 The state further restricts the growth of a


bingo industry by disallowing payment of any sort to a bingo operator.102


            Non-charitable bingo, on the other hand, is severely limited; it must be for “amusement”


only.103 A game can be for amusement in two ways.104 The first form of amusement bingo is a


game that does not include: (1) giving any sort of value to play the game, including tips or


payments to defray the costs; (2) prizes of value in excess of $100; (3) payment of any sort to the


bingo operator for labor; (4) games with more than 50 participants; and (5) games played within




99
     Id.
100
   OHIO REV. CODE ANN. § 2915.082 (2003) (providing similar parameters for license granting as the attorney
general has for distributor licenses under OHIO REV. CODE ANN. § 2915.081).
101
  OHIO REV. CODE ANN. § 2915.081(G) (2004) (adding that subsequent offenses are fifth-degree felonies); OHIO
REV. CODE ANN. § 2915.082(F) (2003).
102
   OHIO REV. CODE ANN. § 2915.09(D)(2) (2004) (“[N]o charitable organization shall provide to a bingo game
operator any commission, wage, salary, reward, tip, donation, gratuity, or other form of compensation, directly or
indirectly, regardless of the source, for conducting instant bingo other than at a bingo session at the site of instant
bingo other than at a bingo session”).
103
      OHIO REV. CODE ANN. § 2915.12(A) (2003).
104
      Id.

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10 hours of a permissible charitable bingo game or other game of chance.105 It makes you


wonder why the legislature bothered to waste the ink.


            The second acceptable game of bingo involves small house games and very few


gambling aspects.106 A person who conducts an improper bingo game is charged with a fourth-


degree felony for “conducting illegal bingo.”107


            The discrepancies between charitable bingo and “amusement” bingo show that Ohioans


place more trust in a game run by charity. Most states allow bingo, at least in its charitable


form.108 However, bingo is not quite what many legislatures envisioned.109 It has become highly


addictive.110 The purpose is not to raise money “for a new community fire truck”; rather, it is the


same vision of making an easy buck that swirls around Las Vegas.111


105
      OHIO REV. CODE ANN. § 2915.12(A)(1) (2003).
106
    OHIO REV. CODE ANN. § 2915.12(A)(2) (2003) (allowing individuals only to play at their own residence).
Admission fees are prohibited, but players can pay 25 cents for a bingo card or other devices in playing the game.
Id. The small amount of money accumulated must be paid to the winner or used to provide refreshments. Id. The
game cannot be played within 10 hours of a charitable bingo game. Id. The game must be played on different days
of the week and not more than twice in a single week. Id.
107
   OHIO REV. CODE ANN. § 2915.07(B) (2003). That would make for an interesting prison-cell conversation:
“What are you in for?” . . . “Illegal bingo.” Apparently prosecutions are not so common. A Westlaw search of the
statute number and “illegal bingo” only turned up six results.
108
      Joseph L. Lester, B-I-N-G-No! The Abuse of a Legal Game, 18 ST. THOMAS L. REV. 21, 21 (2005).
109
      Id.
110
   Id. See, e.g., Julie Arrington, Casino Plans Could Pay Off, MONTGOMERY ADVERTISER, March 29, 2005 (telling
the story of a woman who spent three straight days playing bingo-based electronic games).
111
      Id.

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            Bingo halls are places where people convene for the primary purpose of gambling –


which is a trait bingo has in common with casinos. Presumably, it is the high amount of


regulation, taxes, fees, and charitable outcome that gives bingo its support in the Ohio public and


General Assembly.112 Still, it is difficult to discern a meaningful difference between shouting


“bingo!” and “blackjack!” As one commentator said, “Bingo is now slang for big-time gambling,


and treating it as anything but, is foolish.”113


iii. Comparing Internet Gambling to Casino Gambling


            Americans bet $6 billion online each year, which is half the world‟s online gambling


market.114 As of 2006, there were 23 million internet gamblers in the United States.115 Although


poker has been the engine driving online gambling, many sites offer other casino games, such as


slots, blackjack, and roulette.116 The U.S. government cites several reasons why it wants to ban




112
      See, e.g., OHIO CONST. art. XV, § 6 (requiring bingo to be charitable and to be regulated).
113
   Lester, supra note 108, at 49 (suggesting a solution that involves revising the statutes to provide a new definition
of bingo that slows the rate of play, lowers the prizes, does not allow a third-party to operate the game, requires the
game only takes place on charity property, and limits the amount of people present at a game).
114
   Shailagh Murray & James V. Grimaldi, House Passes Bill to Restrict Internet Poker, WASH. POST, July 12, 2006
(quoting the Congressional Research Service).
115
   Id. (mentioning the Poker Players Alliance, a grass-roots political organization of poker players that boasts more
than 25,000 members).
116
      See e.g. PartyCasino.com – Games, http://www.partycasino.com/games/ (last visited Sept. 25, 2008).


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internet gambling.117 First, it is conducive to fraud.118 Unlike real casinos, there is no squadron


of security forces to prevent a player from colluding with friends.119 The government is also


concerned that the internet facilitates gambling problems because it is available at all hours.120


Further, it is nearly impossible to ensure that gamers are over the legal casino gambling age of


21.121


            The government has understood for some time, however, that prohibitions on internet


gambling are difficult to enforce.122 Although federal gambling laws have withstood Commerce


Clause challenges,123 other barriers have made internet gambling unenforceable. First, internet


gambling is legal in at least 50 other countries, and that keeps most of the kingpins out of U.S.


117
  Michael Blankenship, The Unlawful Internet Gambling Enforcement Act: A Bad Gambling Act? You Betcha!, 60
RUTGERS L. REV. 485, 500 (2008).
118
   Id. at 500-01 (stating that the government‟s main concern is that Internet gambling operators will steal a
gambler‟s money or sell his private information). Stealing does not necessarily mean pure theft. Internet sites can
easily adjust the odds to cheat users out of money. Id. The level of anonymity on the Internet is also conducive to
money laundering. Id. at 503.
119
      Id.
120
   Id. at 501-02 (citing a United Kingdom study that said 75 percent of Internet gamblers are “problem” or
“pathological” gamblers, as opposed to 20 percent of people who visit real casinos).
121
   Id. at 503-04 (stating that younger gamblers are more likely to become pathological gamblers). Age verification
has improved in the last few years. Id. One tool in the United States is a comprehensive registration process that
cross-verifies with available databases. Id.
122
   See GOV‟T. ACC. OFFICE, GAO-03-89, INTERNET GAMBLING – AN OVERVIEW OF THE ISSUES 3, Dec. 2, 2002
available at http://www.gao.gov/new.items/d0389.pdf [hereinafter GAO].
123
   See, Champion v. Ames, 188 U.S. 321, 330 (1903) (“[L]ottery tickets are subjects of traffic among those who
choose to buy or sell them; that the carriage of such tickets by independent carriers from one state to another is
therefore interstate commerce . . .”).


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jurisdiction.124 Many gambling sites are located in Antigua, for example.125 Also, these websites


generally disguise their transfers so credit card companies are unable to block transactions to


them.126


           The federal government relies on four statutes to stop internet gambling, mostly by


prosecuting the organizers, not the players.127 The most recent Congressional act attempts to ban


payouts to players, but it is far from air-tight.128 Ohio does not have a statute prohibiting internet


gambling specifically, but it does ban gambling generally.129 Because prohibitions are


unenforceable, internet gambling provides a quasi-legal outlet for gamblers that is every bit as


conducive to addiction as a casino.

124
  GAO, supra note 122, at 3 (citing an interactive gambling industry services group). Most countries are in
Europe, the Caribbean, and the south Pacific region. Id. Conversely, only a few countries have prohibited Internet
gambling. Id.
125
   See Kelly Ann Tran, The WTO Appellate Body Gambles on the Future of the GATS: Analyzing the Internet
Gambling Dispute Between Antigua and the United States Before the World Trade Organization, 6 APPALACHIAN
J.L. 165, 165-75 (2006) (chronicling a dispute between the United States and Antigua in which Antigua and Barbuda
contested the U.S.‟s regulation of the Internet gambling industry). The Caribbean nations claimed the regulation
was contrary to a trade agreement. Id. In November 2004, a World Trade Organization panel ruled in favor of
Antigua. Id. In April 2005, an appellate court reversed because the U.S. regulation was “necessary to protect public
morals or maintain public order.” Id.
126
   GAO, supra note 122, at 4 (noting that cardholders can also use online payment providers as an intermediary to
pay for gambling).
127
  Blankenship, supra note 117 at 487 (listing the Wire Act, Interstate Transportation of Wagering Paraphernalia
Act, Travel Act, Illegal Gambling Business Act, and Professional and Amateur Sports Protection Act).
128
   Id. at 496-98 (stating that the passage of the Unlawful Internet Gambling Enforcement Act (UIGEA) was a huge
success for Congress and Internet gambling opponents). It prohibits gambling sites from accepting credit cards and
checks. Id. The problem is that these sites can hide these transactions by miscoding them. Id. UIGEA provides
criminal penalties of up to five years in prison and fines. Id. Because these companies usually are located outside
the United States, the government usually must wait until the violator enters U.S. territory. Id.
129
      OHIO REV. CODE ANN. § 2915.02(A)(2) (2003).

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iv. Comparing Horse Racing to Casino Gambling


            In terms of ambiance, horse racing is the closest thing Ohio has to a casino.130 The state


has seven licensed tracks for pari-mutuel racing.131 In 2007, visitors at Ohio tracks bet


approximately $365 million.132 Of that money, the tracks kept $63.5 million and gave $13.1


million in taxes to the state.133 Ohio‟s horse racing statute carefully allocates the tax revenue.134


Two-thirds of the revenue goes into the PASSPORT fund, which provides medical services to


the elderly as an alternative to living at a nursing home.135 The other third supports the horse


racing industry.136




130
   See generally Northfield Park (homepage), http://www.northfieldpark.com (last visited Nov. 17, 2008) (showing
that tracks are private entities that offer gambling, dining, and alcohol).
131
    Welcome to the Ohio State Racing Commission, http://www.racing.ohio.gov/links.stm (last visited Jan. 3, 2009).
The tracks are Beulah Park in Grove City, Lebanon Raceway in Lebanon, Northfield Park in Northfield, Raceway
Park in Toledo, River Downs in Cincinnati, Scioto Downs in Columbus, and Thistledown in Cleveland. Id. Pari-
mutuel racing is a French term that refers to a system where the wagering pool is the primary source for the purse.
SaveOhioRacing.com, Economic Impact of Horse Racing in Ohio, http://www.saveohioracing.com/faq.htm (last
visited Feb. 2, 2009). “Pari-mutuel” refers to a system of betting where the winners split the total amount of money
in the pool. Definition from the Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/pari-mutuel (last visited March 13, 2009).
132
   2007 OSRC Annual Report Highlights, available at http://www.racing.ohio.gov/pdfs/AnnualReport.pdf (last
visited Sept. 26, 2008).
133
      Id.
134
      OHIO REV. CODE ANN. § 3769.087(A) (2007).
135
      Id.; OHIO REV. CODE ANN. § 173.40 (2005).
136
  OHIO REV. CODE ANN. § 3769.087(A) (2007) (listing the beneficiaries as the Ohio Fairs Fund, Thoroughbred
Race Fund, Standardbred Race Fund, Quarter Horse Development Fund, and the State Racing Commission
Operating Fund).


                                                        23
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            Indeed, horse racing is a robust industry nationwide.137 But a secondary motivation for


legalized horse racing is likely society‟s history of infatuation with the sport.138 In the 1930s,


almost every state legalized wagering on horse racing.139 The excitement at the track, when


winners and losers simultaneously learn of their lot, is comparable to when a roulette ball drops


into a red slot, meaning fortune for one group and failure for another.


C.      Thesis


            Ohio simply cannot prevent its citizens from gambling – either through other states‟


casinos or state-sanctioned institutions.140 However, by permitting casinos, Ohio can prevent the


tax and tourism dollars from flowing out of the state. Despite the clear financial benefits,


Ohioans have rejected casinos because of imperfect proposals.141 This Comment will attempt to


provide a carefully crafted amendment to the Ohio constitution that should overcome opponents‟


fears and finally allow Ohio to double-down on the gambling industry after years of folding.

137
    Joan S. Howland, Let‟s Not “Spit the Bit” in Defense of the “Law of the Horse”: The Historical and Legal
Development of American Thoroughbred Racing, 14 MARQ. SPORTS L. REV. 473, 476 (2004) (noting that the U.S.
horse industry produces goods and services worth $25.3 billion a year). Thoroughbred racing contributes $7.383
billion to the U.S. Gross Domestic Product and supports 500,000 jobs. Id.
138
      See id.
139
   Id. at 498 (noting that the only states that resisted were in the Bible Belt, such as Oklahoma). The timing is
significant because states legalized the industry to help with suffering budgets during the Great Depression. Id.
140
      See, e.g. Prah, supra note 2; OHIO CONST. art. XV, § 6 (permitting Ohio to create a lottery).
141
      See, e.g. Editorial, note 6.


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II.        FAILED ATTEMPTS TO BRING CASINOS TO OHIO


           It is helpful to begin by examining past attempts to bring casinos to Ohio. Except for a


prohibition on lotteries, Ohio‟s Constitution is silent about gambling.142 One has to look to the


Ohio Revised Code for guidance, where the state prohibits operating a game or scheme of chance


for profit.143 Several organizations have taken shots at reversing the prohibition.144 Despite


possessing superior financial resources, casino proponents have not come close to winning.145 In


the past 18 years, Ohioans have rejected casino initiatives four times.146


A. Voter Initiatives


i.     1990 Casino Initiative




142
      OHIO CONST. art. XV, § 6.
143
   OHIO REV. CODE ANN. § 2915.02(A) (2003) (prohibiting also: bookmaking, information exchanges involved
with bookmaking, engaging in betting as a significant source of income, and purposely possessing a gambling
device).
144
   Blake A. Watson, Indian Gambling in Ohio: What are the Odds?, 32 CAP. U. L. REV. 237, 244 (2003) (surveying
the several attempts to further gambling and casinos in Ohio, which this article will later examine).
145
   See, e.g., Randy Ludlow and Dan Horn, Casino Gambling Loses by Wide Margin in Ohio, CINCINNATI
ENQUIRER, Nov. 6, 1996, at 1A (noting that the 1996 riverboat issue failed by a 62-38 count, despite its proponents
outspending the opponents $8 million to $1 million).
146
      Editorial, Voters Show Savvy, COLUMBUS D ISPATCH, Nov. 7, 2008, at 08A.


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            In 1990, voters rejected by a 62% to 38% margin a proposal that would have allowed


voters to allow a casino on a trial basis.147 If passed, car dealer Alan Spitzer would have built a


$450 million resort and casino in Lorain.148 Before going to the voters, the plan passed the Ohio


House, but the Senate rejected it.149 The Akron Beacon Journal opposed the issue because it was


“a selfish proposition from the very beginning aimed at making one man [Spitzer] fantastically


wealthy. The rhetoric used to disguise the self-interest was appalling.”150 Opponents argued that


the amendment was too complex, and casinos would lead to more crime.151 The horse-racing


interest strongly opposed the measure, as well.152




ii. 1996 Riverboat Initiative




147
  Associated Press, Casino Promoters Hoping to Try Again in ‟92, AKRON BEACON JOURNAL, Nov. 19, 1990, at
B1 (quoting a casino advocate as immediately looking forward to 1992‟s presidential election for their next attempt).
148
   Carl Chancellor, Casino Proponents Losing Their Bet by Hefty Margin, AKRON BEACON JOURNAL, Nov. 7, 1990,
at A11.
149
      Editorial, Casinos – Not Again, AKRON BEACON J., Nov. 20, 1990, at A8 [Hereinafter, Editorial – Not Again].
150
   Id. (quoting also William Thompson, professor at University of Las Vegas-Nevada). Passing the issue would be
“bad for Ohioans, bad for communities and bad for family values.” Id.
151
      Chancellor, supra note 148.
152
      Id.


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           In 1996, Ohio voters defeated a casino riverboat issue by the same 62% to 38%


margin.153 Spitzer‟s newest proposal would have allowed eight casino riverboats permanently


moored in Cleveland, Lorain, Youngstown, and Cincinnati.154 The plan promised $186 million


for schools, tens of millions for local governments, and 21,000 new jobs.155 The proponents


outspent the opponents by more than $6 million.156 The defeat was part of a nationwide rejection


of gambling proposals; similar referendums failed in six other states.157


           Spitzer expected support from Ohio‟s Catholics, males and Democrats, but each of these


groups opposed the riverboat issue.158 Casino advocates also blamed the opposition from


Governor George Voinovich and concerns from voters that schools would not receive as much of



153
      Ludlow, supra note 145.
154
   Id. (showing that the issue failed in each of the counties where the initiative would establish a casino). Id. In
Hamilton County, where voters can make a short drive to Indiana‟s casinos, the issue failed 63-37. Id. County
commissioner John Dowlin said Cincinnatians refused to be “bamboozled” by the “fraud.” Id. Lorain businessman
Alan Spitzer led the initiatives in 1990 and 1996. Id.
155
  Benjamin Marrison, Voters Were Not Convinced Casinos Would Help Schools, CLEV. PLAIN DEALER, Nov. 7,
1996, at 1A.
156
   Paul Souhrada, Casino Opponents Assess Their Winning Hand, CLEVELAND PLAIN DEALER, Nov. 24, 1996, at 4B
(quoting Ohio Governor George Voinovich: “I hope today's resounding defeat of Issue 1 will at last convince those
people who have been promoting it over the years that the people of Ohio don't want casino gambling, not
yesterday, not today, not ever”).
157
   Nossiter, supra note 55 (noting that optimism about the economy and grass-roots moral attacks on the issues
contributed to their defeat). The other states were Washington, Arkansas, Louisiana, Colorado, Iowa, and Nebraska.
Id. Only Michigan passed a pro-gaming referendum in 1996. Id.
158
   Margaret Newkirk, Casinos Roll Snake Eyes All Over Even in Lorain County, AKRON BEACON J., Nov. 7, 1996,
at A1 (noting that Lorain County voted against the issue, despite supporting the casino initiative in 1990). “It has to
be the economy, that it‟s much better now,” Spitzer said. Id.


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the pot as promised.159 Another scapegoat was the final push from presidential candidate Bob


Dole, which increased Republican turnout.160


iii. 2006 Slot Machine Initiative


            In 2006, proponents of slot machines at horse racing tracks spent $26.8 million on their


campaign.161 The opponents of slot machines spent only $1.1 million, but the issue was struck


down by a 57% to 43% margin.162 Dubbed the “Learn and Earn” proposal, it received the most


support from voters in Northeast Ohio, where four of the seven racetracks are located.163 If


passed, the issue would have permitted 31,000 slot machines.164 The issue proposed to pay $850


million annually for college scholarships and $230 million annually for economic development


projects.165 However, voters displayed their distaste for the amendment‟s singling out of a




159
  Id. (noting that Dole‟s surge brought more Republicans to the polls, and Republicans are traditionally more
opposed to gambling).
160
      Id.
161
    Jim Provance, Nearly $44 Million Spent to Fund, Fight Ohio‟s 4 Statewide Ballot Issues, TOLEDO BLADE, Dec.
16, 2006 (quoting a political analyst who did not believe such a loss would deter gambling advocates).
162
      Id.
163
      Rick Armon, Experts Say Gambling Issue Will Be Back, AKRON BEACON J., Nov. 10, 2006, at A1.
164
      Id.
165
      Id.


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handful of business owners.166 A columnist from the Cleveland Plain Dealer likened “Learn and


Earn” to King George III‟s monopoly over tea, which led to the Boston Tea Party.167 Similar to


1996, voters were also skeptical that the money would go where the casino advocates said it


would go.168 Unlike previous gambling initiatives, however, “Learn and Earn” received zealous


support from the horse-racing industry.169


iv. 2008 Casino Initiative


            In 2008, voters defeated an amendment to approve a hotel and casino in Clinton County,


by a 63% to 37% margin.170 Issue 6 promised 5,000 new jobs and $200 million in state revenue


per year.171 Its opponents warned against giving away a casino monopoly for free.172 One of



166
      Id. (quoting University of Dayton law professor Blake Watson).
167
      Thomas Suddes, Slots Monopoly a Perpetual Con, CLEVELAND PLAIN DEALER, Nov. 5, 2006, at M1

            (“Issue 3 would, for all practical purposes, tweak that [Ohio‟s Bill of Rights] to read, "All men
            have certain inalienable rights, but only certain men - if they own racetracks, or Cleveland realty -
            have the perpetual right to coin their own money in Ohio. No one else need apply. Ever.”).
168
   Tom Breckenridge, Middling Support in Cuyahoga Doomed Slot-Machine Proposal, CLEV. PLAIN DEALER, Nov.
10, 2006, at B4.
169
   Rob Modic, Issue 3 Supporters Stage Protest at „News‟, DAYTON DAILY NEWS, Nov. 6, 2006, at A6 (noting that
50 families drove empty horse trailers around the Dayton Daily News‟ office for an hour to protest the newspaper‟s
opposition to the “Learn and Earn” initiative). Supporters within the horse-racing industry believed that the issue
would provide larger purses. Id.
170
      Editorial, supra note 6. Clinton County is halfway between Cincinnati and Columbus. Id.
171
      Id.
172
  Jim Provance, Passage of Issue 6 Would Pave Way for Southwest Ohio Casino: Backers Trumpet Job Creation;
Foes Object to Tax „Loophole‟, TOLEDO BLADE, Nov. 2, 2008.


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those opponents was an owner of a rival casino.173 Newspapers in Ohio‟s eight largest cities


opposed Issue 6, as well.174 The Columbus Dispatch‟s scathing dissent indicated that no casino


proposal would ever gain the newspaper‟s approval.175


v.         Speculation about 2009


           The Issue 6 advocates suggested they would propose another measure in 2009 that would


include multiple sites, rather than the single casino in Clinton County.176 In March, they


followed up by submitting a proposal for casinos in four cities: Cleveland, Columbus, Cincinnati,


and Toledo.177


B. Indian Gaming




173
      Michael Sangiacomo, Casino Backers Will Try Again, CLEVELAND PLAIN DEALER, Nov. 6, 2008, at B1.
174
   SCIENCE LETTER, Ohio‟s Daily Newspapers Agree: Vote „No‟ on Issue 6, Nov. 1, 2008 (quoting the Lorain
Morning Journal: “Even if you would like to see casinos in Ohio some day, the Issue 6 casino proposal on the Nov.
4 ballot deserves your „no‟ vote. It is a bad deal for Ohioans.”).
175
      Editorial, COLUMBUS DISPATCH, Nov. 7, 2008, at 08A

           (“Ohioans recognize the gambling business for what it is: a parasitical industry that spreads
           financial ruin, destroys families and courts unwelcome political influence. Dollars spent at casinos
           are dollars diverted from productive activities. The more people spend on gambling, the less they
           have for sports, movies, concerts and other events across the state. Instead of creating jobs,
           expansions in gambling within Ohio would hurt well-established businesses that already employ
           many Ohioans.”).
176
  BUSINESS FIRST, Rejected Tuesday, Casino Proponents Will Try Again in 2009, Nov. 6, 2008 (quoting advocated
Brad Pressman as saying: “We remain optimistic. We know there is a large base that supports the idea of a casino in
Ohio. With that in mind, MyOhioNow has decided to move forward.”).
177
   Thomas J. Sheeran, Gambling Proposals Return to Ohio, AKRON BEACON JOURNAL, March 12, 2009. The
amendment will go on the ballot in November 2009 if Ohio‟s attorney general approves its language. Id. Gov. Ted
Strickland said the proposal is not in Ohio‟s best economic interests.

                                                           30
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           Although ballot initiatives have failed, casino advocates have another avenue. In 1988,


Congress passed the Indian Gaming Regulatory Act.178 The measure was a response to the


Supreme Court‟s 1987 decision in California v. Cabazon Band of Mission Indians,179 which held


that states could not enforce their gambling laws on Indian reservations.180 The Act allows


federally recognized tribes to open casinos in states where they are located if that state allows a


certain class of gaming.181 Indian tribes currently operate gaming establishments in 28 states.182


As of April 2008, none of the 562 recognized Indian tribes in the United States were domiciled


in Ohio.183




178
      25 U.S.C.A. § 2719 (a) (1988).
179
  480 U.S. 202 (1987). Scott A. Taylor, The Unending Onslaught of Tribal Sovereignty: State Income Taxation of
Non-member Indians, 91 MARQ. L. REV. 966 (2008).
180
    Cabazon, 480 U.S. at 207-12 (1987) (deciding the issue on federalism grounds). In 1970, Congress passed the
Organized Crime Control Act, which allowed six states, including California, to enforce criminal laws on Indian
territory. Id. The Court held that the bingo statute at issue was civil in nature, not criminal. Id. The 1970 act pre-
empted state regulation because state regulation is inconsistent with the federal interest of self-determination for
Indian tribes. Id. at 219.
181
      25 U.S.C.A. § 2719(a)(1) (1988) (allowing land contiguous to tribe territory to be used for gaming, as well).
182
   National Indian Gaming Commission, Frequently Asked Questions, available at
http://www.nigc.gov/AboutUs/FrequentlyAskedQuestions/tabid/57/Default.aspx (last visited Oct. 26, 2008) (listing
the states as: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Idaho, Iowa, Kansas, Louisiana,
Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North
Dakota, Oregon, Oklahoma, South Dakota, Texas, Washington, Wisconsin, and Wyoming).
183
  Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Services, 73
Fed. Reg. 18553-01 (April 4, 2008) available at http://edocket.access.gpo.gov/2008/E8-6968.htm ; Carrie Newton
Lyons, Indian Casinos, the Red Herring in the Issue 6 Debate, AKRON BEACON JOURNAL, Oct. 31, 2008.


                                                            31
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           However, the Act grants some exceptions for tribes that did not hold land in a specific


state as a registered tribe when the Act was passed on October 17, 1988.184 Three of those


exceptions are germane to achieving Indian gaming in Ohio.185 First, an Indian group in Ohio


can apply for, and receive, federal recognition as an Indian tribe.186 As of September 2008, 12


Indian groups have pending applications for acknowledgment.187 There are seven mandatory


criteria for Indian groups to meet, and meeting them is not easy.188 The adjudication process




184
      25 U.S.C.A. § 2719(a).
185
      Watson, supra note 144, at 262.
186
   25 U.S.C.A. § 2719 (b)(1)(B)(ii) (stating that subsection (a)‟s requirement of gaming on land within the tribe‟s
domain does not apply when “lands are taken into trust as part of . . . the initial reservation of an Indian tribe
acknowledged by the Secretary under the Federal acknowledgment process”).
187
   Office of Federal Acknowledgment, Number of Petitions by State as of September 22, 2008, Sept. 22, 2008
available at http://www.doi.gov/bia/docs/ofa/admin_docs/num_petitioners_state_092208.pdf (showing only five
states have more groups seeking acknowledgment than Ohio).
188
      25 C.F.R. § 83.7 (1994)

           (“a) The petitioner has been identified as an American Indian entity on a substantially continuous
           basis since 1900. . . . b) A predominant portion of the petitioning group comprises a distinct
           community and has existed as a community from historical times until the present. … c) The
           petitioner has maintained political influence or authority over its members as an autonomous
           entity from historical times until the present. . . . d) A copy of the group's present governing
           document including its membership criteria. In the absence of a written document, the petitioner
           must provide a statement describing in full its membership criteria and current governing
           procedures. e) The petitioner's membership consists of individuals who descend from a historical
           Indian tribe or from historical Indian tribes which combined and functioned as a single
           autonomous political entity. . . . f) The membership of the petitioning group is composed
           principally of persons who are not members of any acknowledged North American Indian tribe. . .
           . g) Neither the petitioner nor its members are the subject of congressional legislation that has
           expressly terminated or forbidden the Federal relationship.”);

Watson, supra 144 at 274.


                                                           32
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lasts several years,189 and the Assistant-Secretary of Indian Affairs has turned down many


applications.190 Many tribes, including the Ohio petitioners, have found it difficult to assemble


the evidence necessary to meet the seven criteria.191


           Second, a tribe can operate a casino on land received after October 17, 1988, but only if


the tribe obtained the land through a past grant of land that the tribe never received.192 However,


this option is not possible because all Ohio land due to tribes through treaties has already been


ceded to the United States, making it clear from claims.193


           Third, the Secretary of the Interior can grant a plot of land to an out-of-state tribe if the


tribe meets a three-step process.194 The tribe must first prove to the Secretary that a casino



189
   Id. at 275 (saying a substantial majority of the petitioners sit in administrative purgatory). A large reason is that
groups are given unlimited time after filing a letter of intent to file their formal petition, which contains evidence of
the aforementioned seven mandatory criteria. Id.
190
   Bureau of Indian Affairs, Acknowledgment Decision Compilation list: Petitions resolved by the Department of
the Interior, Sept. 22, 2008 available at http://www.doi.gov/bia/ofa_adc-petitions_decided.html (showing no Ohio
petitioners having been accepted or denied since 1981, when the process began). The Assistant Secretary has
granted acknowledgment to only 16 of 44 petitioners. Id.
191
  See Watson, supra note 144, at 282 (stating that, as of 2003, none of the seven Ohio petitioners had submitted a
complete application). The chief of one group said it has been difficult to document continual tribal existence. Id.
192
  Id. at 283-88 (examining several instances of this occurring, typically from the 19th century); 25 U.S.C.A. §
2719(b)(1)(B)(i) (“lands are taken into trust as part of . . . a settlement of a land claim”).
193
   Lyons, supra note 183; Watson, supra note 144, at 288-92 (acknowledging that several tribes have historical ties
to Ohio). Five tribes reserved Ohio land through treaties with the United States. Id. However, the United States has
since purchased that property. Id.
194
      25 U.S.C.A. § 2719(b)(1)(A)

           (“Subsection (a) of this section will not apply when . . . the Secretary, after consultation with the
           Indian tribe and appropriate State and local officials, including officials of other nearby Indian

                                                             33
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would be in the best interest of the tribe.195 Next, the tribe must show that a casino would not be


a detriment to the surrounding community.196 Third, the state‟s governor must agree with that


assessment.197 Thirty tribes have applied for the so-called “best-interests” exception.198 Only


four have been successful.199 Tribes have faced greater difficulty as the distance between the


tribe‟s reservation and the proposed casino has increased.200 Although Ohio Governor Ted


Strickland recently sought to expand the lottery to help the state deficit, he has traditionally been


against gambling.201 For these reasons, Indian gaming has slim odds in Ohio.




III.        CRAFTING AN AMENDMENT


            tribes, determines that a gaming establishment on newly acquired lands would be in the best
            interest of the Indian tribe and its members, and would not be detrimental to the surrounding
            community, but only if the Governor of the State in which the gaming activity is to be conducted
            concurs in the Secretary's determination”).
195
      Id.
196
      Id.
197
      Id.
198
   Carl Artman, Hearing of United States Department of Interior Before the House Natural Resources Committee,
Feb. 27, 2008 available at http://www.doi.gov/ocl/2006/IndianTribeLand_022708.htm (stating that the amount of
applications has increased in recent years).
199
      Id.
200
   Id. (explaining that some applications are for land within 2 miles of the reservation; some are 1,000 miles from
the reservation). Artman says he is concerned that applications for development of land far from the reservation will
entice tribe members to leave the reservation to work at the casino. Id. It will also be harder for the tribe to regulate
the casino if it is hundreds of miles away from the reservation. Id.
201
  William Hershey, Strickland Prepares Second State of the State Speech, DAYTON DAILY NEWS, Feb. 3, 2008, at
A10; Sheeran, supra note 177.


                                                           34
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           After 18 years of failed voter initiatives, casino advocates should know that they cannot


slop together an initiative, throw a truckload of money into the campaign coffers, and expect to


win. They must analyze their opponents‟ fears, why other gambling proposals have passed, and


why their own initiatives have failed.


A. Identifying the Opponents


           Because voter initiatives have failed so badly (even with vast funding imbalances) and


Indian gaming is an “89-degree uphill climb,”202 the next casino initiative will have to creatively


address opponents‟ many concerns. The opponents generally fall into one of three categories: 1)


those who have an economic incentive to fight casinos, 2) those who have a moral objection, and


3) those who believe it will have a bad effect on society. A carefully crafted amendment can


appease some of these people, but not all.


i. Those Who Have an Economic Incentive


           A casino will cause people in that area to spend less money on other forms of


entertainment. For example, many opponents say that a casino would bankrupt the state lottery




202
      Watson, supra note 144, at 251.


                                                   35
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and race tracks.203 The Ohio Lottery has 333 employees and seven individuals in Ohio own race


tracks, which employ hundreds.204 Each might lose their livelihoods if casinos began to pop up.


            Competing casinos also have a direct stake in the matter.205 In the 2008 election, the


main opponent of Issue 6 was Penn National Gaming, which owns Argosy Casino in


Lawrenceburg, Indiana; Argosy is only 40 miles away from the proposed site for the Issue 6


casino.206 Penn National, which founded the group called “No on Issue 6 Committee,” also owns


Raceway Park, a horseracing track in Toledo.207 For its part, Penn National said it fought Issue 6


because it created a monopoly in Ohio, not because of personal greed.208 Ohio voters


overwhelmingly accepted Penn National‟s arguments, rejecting the amendment by almost a 2-to-


1 ratio.209




203
      Id. at 247.
204
  See Ohio Lottery Facts, supra note 83 (tallying the employees as of July 2008); Welcome to the Ohio State
Racing Commission, supra note 131.
205
      See, e.g., Sangiacomo, supra note 15.
206
    Id. (quoting Issue 6 advocate Rick Lertzman: “Penn National fears that we will take away their business. Our
casino will be 40 miles away and we will attract the Ohioans who have been going across the border to Indiana to
gamble at The Argosy.”).
207
      Editorial (2), Against the Odds, AKRON BEACON J., Sept. 30, 2008.
208
      Editorial (2), supra note 207.
209
    Editorial, supra note 6; Teresa L. Kline, The Law and Economics of Native American Casinos, 78 NEB. L. REV.
263, 269 (1999) (likening gambling to prostitution, abortion, and homosexuality, which some consider to be harmful
to their participants and to society).


                                                          36
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            It is hard to say how to appease people who might lose their jobs or economic power.


The best method might be to allow other casinos to bid on a casino license. To win the horse


tracks‟ support, it might help to give them an incentive for their support – perhaps a license for a


limited amount of slot machines. Such a license also would also enable Ohio‟s seven tracks to


compete better with Pennsylvania‟s tracks.


ii. Those Who Have a Moral Incentive


            Many Americans feel gambling violates their moral code, and that breadwinners should


not divert their attention from hard work in order to provide for themselves and their families.210


Others think of casino dwellers to be chain-smoking drunks who sleep with prostitutes.211 Much


of the opposition to gambling initiatives comes from churches.212 Although the Bible does not


use the term “gambling,” it stresses the importance of hard work.213




210
      Id.
211
   Steven R. Salbu, Who Should Govern the Internet?: Monitoring and Supporting a New Frontier, 11 HARV. J.L. &
TECH. 429, 444-45 (1998) (adding that gambling might contribute to poor parenting if parents lose their money or
divert their time in order to gamble).
212
      See, e.g., Barry M. Horstman, Churches Want to Kill State Lottery, CINCINNATI POST, Aug. 9, 2000, at Page 1.
213
   See, e.g., Proverbs 12:24 (“Work hard and be a leader; be lazy and become a slave”); Luke 12:15 (“Then he
[Jesus] said to them, „Be careful to guard yourselves against every kind of greed, because a person‟s life does not
consist of the amount of possessions he has.‟”).


                                                          37
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           The economic benefits that casino gambling can bring to a state have served to loosen


some of the moral opposition.214 However, casino advocates must discover a way to soften


churches‟ disdain.215 Although the Establishment Clause prevents direct benefit to churches, a


clever initiative could create a fund for traditional church causes, such as prisoner counseling,


homeless shelters, or orphanages. Considering Governor Strickland‟s past as a Methodist


minister and the Supreme Court‟s refusal to strike down President Bush‟s faith-based


initiatives,216 the amendment could provide charity money that would indirectly reach the


churches.217


           Another avenue is public relations. Advocates must talk to newspapers and community


leaders, expressing that Ohioans are already gambling at a high rate and that Ohio law already


permits types of gambling that are similar to casinos. In essence, explain that casinos are not


much different than Ohio‟s current legal forms of gambling.




214
      Kline, supra note 209, at 269.
215
      Winning church approval for casinos is unlikely, but keeping them from organizing their congregations is crucial.
216
   Hein v. Freedom from Religion Found., Inc., 127 S.Ct. 2553 (2007) (holding that taxpayers do not have standing
to challenge the executive branch‟s grant of general appropriations to churches).
217
   Matt Leingang, Democrat Leads in Ohio Governor‟s Race, WASH. POST, Oct. 18, 2006, available at
http://www.washingtonpost.com/wp-dyn/content/article/2006/10/18/AR2006101800298_pf.html.


                                                           38
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iii. Those Who Believe It Will Be Harmful to Society


           Gambling will always have its social costs, such as divorce, bankruptcy, domestic


violence, underage gambling, and crime.218 Because of these elements, Kansas City once


estimated that casino gambling drains about $50 million per year from the area.219 In 2005,


Indiana estimated that it lost $52.14 million as a result of crime caused by its casinos.220 The


state believes it also lost significant money due to other social costs (between $41.87 million and


$19.02 million), bankruptcies ($1.21 million), and regulatory costs ($3.34 million).221


           To combat these legitimate fears, advocates must accentuate the positive. Although


Indiana‟s annual social costs rise to nearly $100 million annually, the state received $818.98


million of tax revenue in 2008.222 Pennsylvania,223 Michigan,224 and West Virginia225 have


218
   National Gambling Impact Study Commission Report, available at
http://govinfo.library.unt.edu/ngisc/reports/1.pdf (last visited Sept. 30, 2008).
219
   John Warren Kindt, Diminishing or Negating the Multiplier Effect: The Transfer of Consumer Dollars to
Legalized Gambling: Should a Negative Socio-Economic “Crime Multiplier” Be Included in Gambling Cost/Benefit
Analyses?, 2003 MICH. ST. DCL L. REV. 281, 295 (2003) (noting that these losses were probably masked by the size
of Kansas City‟s economy).
220
      Indiana Cost-Benefit Analysis, supra note 15, at 2.
221
   Id. at 2-3 (totaling between $717.29 million and $740.14 in costs to society). The study said behaviors that led to
these costs were preoccupation with gambling, higher tolerance to gambling (needing to wager more and more to
experience a thrill), feeling withdrawal when not gambling, gambling as an escape mechanism, and repeated failures
to control one‟s gambling activity. Id. Meanwhile, the benefits in tourism and tax revenue totaled $815.85. Id.
222
      Indiana Annual Report, supra note 13, at 8-9.

                                                            39
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similarly tantalizing figures, of which advocates must apprise the public. Concrete examples are


more persuasive than promises from people who have an incentive to exaggerate.226


B. Identifying What Has Worked


i.     Other States‟ Successes


           Ohio is not the only state to struggle with permitting gambling. Four of its gambling


neighbors conquered an anti-gambling constituency. Their techniques and arguments are


instrumental as Ohio designs its own plan for success.


           Indiana, for example, permitted casinos because its voters believed gambling would


improve tourism.227 Also, the Hoosier State pushed some of the intangible costs on its neighbors




223
   Pennsylvania Revenue, supra note 21 (stating that in fiscal year 2007/2008, gaming brought in $477.6 million in
state taxes, $56.2 million for local government revenue, and $138.8 million for the state tourism and race horse
funds).
224
   Michigan Annual Report, supra note 61, at 21 (stating that the Detroit casinos contributed at least $200 million to
state and local governments in 2007).
225
  Prah, supra note 2 (stating that 12.1 percent of West Virginia‟s revenue is from gambling taxes). Picture what
Ohio‟s legislature could do with a 12.1 percent larger budget.
226
      See, e.g., Breckenridge, supra note 168 (demonstrating voter skepticism over advocates‟ promises)
227
      IND. CODE § 4-33-1-2 (2008)


                                                          40
1659475


by enticing migrating gamblers across state lines.228 Thus, a significant portion of the


accompanying social problems would follow them home.229


            Michigan utilized casino placement in another manner: Economic revival.230 Michigan


permitted casinos in Detroit, where the taxes and jobs could assist a crime-ridden and


economically suffering city.231 Michigan also had a second purpose for allowing three Detroit


casinos: Competition.232 Casino Windsor sits within miles of Detroit, on the other side of the


Detroit River.233


            Indeed, a state‟s economy plays a role in determining the constituency‟s receptiveness of


gambling.234 Similar to Michigan, New York also loosened its gambling prohibitions in the


economic struggle post-9/11.235 West Virginia‟s impetus for allowing table games was rescuing




228
      Indiana Cost-Benefit Analysis, supra note 15, at 15.
229
      Id.
230
   See Michigan Annual Report, supra note 61 (noting that the Detroit casinos pay 11.9% of their Net Win for local
economic revival and crime fighting).
231
      Id.
232
      Nossiter, supra note 10.
233
      Id.
234
      See, e.g., Liebman, supra note 10, at 579
235
      Id.


                                                             41
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its race tracks from interstate competition.236 Thus, examples from New York, West Virginia,


and Michigan show that adverse economic conditions can convince voters to allow casinos.


           If Ohio studies these other states, it will see that gambling is an easier sell when the


regions are suffering economically. Consider what Cleveland would do for a $108.14 million tax


boost and the accompanying economic benefits and jobs.237 Further, Ohio could take a lesson


from West Virginia and Michigan, among others, who persuaded voters that casinos are


necessary to compete with other states. In Ohio‟s case, for example, an amendment might situate


casinos in Toledo, Dayton, and Youngstown to compete with Michigan, Indiana, and


Pennsylvania, respectively. These casinos would be situated near the border to accomplish the


tourism goal, which pacified Indiana voters.238




236
      Wise, supra note 35.
237
   See, e.g., Michigan Gaming Control Board, supra note 61, at 21 (noting what benefits Detroit receives annually
from its three casinos).
238
      Indiana Cost-Benefit Analysis, supra note 15, at 15.


                                                             42
1659475


ii. Ohio‟s Successes


           Casino advocates also could learn from the instances where voters chose to expand


gambling in Ohio. A legal lottery and bingo system exist through voter initiatives.239 The lottery


initiative passed because voters wanted the state to compete with Michigan and Pennsylvania,


who conducted lotteries.240 Perhaps more important was the mandate that profits shall go


directly to the schools.241 Voters passed the bingo initiative to give charities a way to raise


money.242 However, the legislature saddled the industry with regulations to prevent it from


spiraling down less desirable paths.243


           Certainly, a specific and credible plan for the additional tax revenue is necessary to


garner support for the issue. A strong regulation plan also should accompany the next casino


initiative. One commentator suggested an interstate compact, where Ohio and another state, such




239
   OHIO REV. CODE ANN. § 3770.03(A) (allowing a state lottery); OHIO CONST. art. XV, § 6 (allowing charitable
and amusement bingo);
240
      Suddes, supra note 72.
241
      OHIO CONST. art. XV, § 6.
242
   Id. (“The General Assembly may authorize and regulate the operation of bingo to be conducted by charitable
organizations for charitable purposes.”).
243
      See, e.g., OHIO REV. CODE ANN. § 2915.081(E) (2004) (listing the qualifications to hold a bingo license).


                                                           43
1659475


as Nevada, share regulations and industry duties.244 It would trim costs and give Ohio a


workable plan from the beginning.245


C. Identifying What Has Not Worked


            The four failed attempts to amend Ohio‟s constitution each had pitfalls. Examining these


errors and avoiding them will be important for future amendments. Many opponents harbored


distaste for the initiative‟s greedy advocate.246 In 1990, the Akron Beacon Journal urged its


readers to reject a modest casino amendment because its primary purpose was to make one man


wealthy, not to help Ohio.247 Similarly, in 2006, voters shot down a slot machine measure


because the race track owners were simply creating an oligopoly for themselves.248 Voters in


both the 1996 and 2006 elections bore skepticism that the schools would really receive as much


new funding as gambling advocates promised.249



244
   McNeil, supra note 3 at 450 (suggesting that a compact with Nevada would give Ohio essential information and
regulatory support).
245
    Id. at 450-51 (listing the functions of a state regulatory body: levying/collecting taxes, granting casino licenses,
enforcing the casino laws, educating courts on how to deal with casinos, and keeping track of individuals involved
in the industry – including some players). The author says Ohio would profit from tapping into Nevada‟s ready-
made infrastructure. Id.
246
      See, e.g., Editorial – Not Again, supra note 149.
247
      Id.
248
      Suddes, supra note 167.
249
      Breckenridge, supra note 168.


                                                           44
1659475


            The lack of trust might stem from unclear wording. In 2008, casino opponents‟ most


common argument was that Issue 6 contains a loophole.250 If another casino entered Ohio, the


Issue 6 casino would pay the lower of two totals: 25 percent of gambling revenue or the


percentage paid by another operator.251 If an Indian casino opened in Ohio, the Indian casino


would not pay taxes, so neither would the Issue 6 casino.252 Therefore, some voters did not trust


Issue 6 and considered it an amateur attempt to expand gambling.253


            Examining these issues, voters must not look upon the advocate as a greedy, sneaky, or


untrustworthy. Perhaps the proponents need a respected spokesperson. For example, then-


Governor George Voinovich was the megaphone by which opponents bellowed their message in


1996.254 Gambling advocates need a respected person with the opposite viewpoint.


            Also, the language of the initiative must be clear. If advocates did not intend to create a


loophole in 2008, they should have amended the language to include a sentence such as, “Indian


casinos will not affect the casino‟s tax rate.” Further, the amendment could garner more trust

250
      Dennis J. Willard, Stakes High, Lines Drawn in Ohio Casino Battle, AKRON BEACON J., Oct. 19, 2008, at A1.
251
      Id.
252
   Id. But see Lyons, supra note 183 (stressing that the possibility of Indian gaming in Ohio is remote). If it did
happen, the Indian casino would probably pay some taxes as part of a tribal-state compact. Id.
253
      Id.
254
      Newkirk, supra note 158.


                                                          45
1659475


with a procedural safeguard, such as allowing the casino only on a trial basis.255 Such a


safeguard will assure voters that if this initiative is a mistake, it will be short-lived. The state


might even run the casino itself, as Kansas is doing, 256 which would reduce concerns that one


entity is getting rich at Ohioans‟ expense. After five years, Ohio voters can decide whether to


maintain the casino, or develop it into a hotel with a convention center.


           In order to allay the greed factor, the initiative should not grant a monopoly license to one


or several individuals. A bidding process would be the fairest method. It would give Ohio


hundreds of millions of dollars for the license, rather than handing one out for free, which the


four failed proposals did.


D. Putting It All Together


           If casino advocates are planning another attack, they must begin by examining their


opponents, the circumstances under which Ohio‟s neighbors have passed gambling initiatives,


and the reasons why they have failed four times in the past 18 years in Ohio.




255
      Advocates attempted this in 1990. Associated Press, supra note 147.
256
   Prah, supra note 2 (stating that Kansas is the first state to operate its own casino). Some states do own and
operate slot machines, however. Id. While independent contractors will manage the operation, the state owns the
building and the business. Id. Governor Kathleen Sebelius said this arrangement “ensures not only the highest
possible return, but also the toughest regulation.” Id.


                                                          46
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            An examination of the opponents would indicate that some people will oppose even the


perfect casino proposal because of their moral distaste for gambling or because of the economic


ramifications to them.257 With these individuals the goal should be to draft the least


objectionable proposal so that these groups do not mobilize their animosity in the form of an


organized campaign. Advocates can quell economic opponents by including them in the


proposal, such as allowing racetrack owners to install slot machines. When drafting the


amendment and running a campaign, however, it is more valuable to target those people who


might support a casino, depending on the persuasiveness of the plan.


            Looking at other states, it is apparent that the site of the casinos makes a large difference.


There are four factors to consider: First, putting a casino in a high-population area often gives the


proposal more support from that region.258 Second, locating a casino near the border allows a




257
      See, e.g., Editorial, supra note 175 (expressing the view of those who never will support a casino issue).
258
   See, e.g., Armon, supra note 163 (noting that the counties with racetracks supported the measure the equip them
with slot machines); Newkirk, supra note 159 (stating that the casino passed in the targeted community of Lorain in
1990, but Lorain did not support the 1996 proposal). There were two differences between the two initiatives: 1) In
1990, Lorain would get the only casino; the 1996 provided eight riverboats in four communities. Id. 2) The 1990
casino would have created a casino in Lorain on a trial basis; the 1996 initiative had no such provision. Id. Spitzer,
the casino entrepreneur, said the difference was that Lorain‟s economy had improved between 1990 and 1996. Id.
But see Ludlow, supra note 145 (noting that the 1996 issue failed in every county where a casino was proposed to be
built).


                                                             47
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state to maximize tourist dollars and pawn part of the social costs off onto its neighbors.259


Third, states are generally more receptive during difficult economic times – particularly when the


casino sits in a particularly destitute region.260 Fourth, placing a casino near competition


comforts voters that gambling dollars will stop trickling out of state.261


            Under the first factor, the five biggest cities by population are Columbus, Cleveland,


Cincinnati, Toledo, and Akron.262 Under the second factor, Cincinnati, Youngstown, and Toledo


are the major metropolitan areas that sit near a border.263 Under the third factor, several of


Ohio‟s large cities have unemployment rates that rise above the national average of 6.1.264 The


most notable are Toledo at 8.5 percent, Dayton at 7.6 percent, and Youngstown at 7.5 percent.265



259
   See, e.g., Indiana Cost-Benefit Analysis, supra note 15, at 15 (showing how Indiana has positioned its riverboats
near the borders to increase tourism and minimize social costs to Hoosiers).
260
    See, e.g., Liebman, supra note 10, at 579 (noting that New York Governor George Pataki‟s gambling plan was
introduced on Oct. 24, 2001 – six weeks after 9/11); Michigan Annual Report, supra note 59 (noting that Detroit
casinos pay 11.9% of their Net Win to the city for economic revival and initiatives against violence).
261
   See, e.g., Nossiter, supra note 10 (noting that Michigan allowed casinos in Detroit in order to compete with
Casino Windsor, which sits across the Detroit River). See generally Wise, supra note 35 (noting that West
Virginia‟s racetrack owners started the slot machine initiative in order to stay ahead of tracks in Pennsylvania);
Suddes, supra note 72 (noting that Ohio adopted the lottery in order to compete with Michigan and Pennsylvania,
which were bolstering their state revenue with lotteries).
262
  City-Data.com, Ohio Bigger Cities, http://www.city-data.com/city/Ohio.html (last visited Dec. 23, 2008) (listing
Columbus at 711,470, Cleveland at 478,403, Cincinnati at 331,285, Toledo at 313,619, and Akron at 217,074).
263
      Ohio-map.org, ohio-road-map.gif, http://www.ohio-map.org/ohio-road-map.gif (last visited Dec. 23, 2008).
264
   Bureau of Labor Statistics, Unemployment Rates for Metropolitan Areas (Oct. 2008 data), available at
http://www.bls.gov/web/laummtrk.htm.
265
      Id.


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Under the fourth factor, a casino in Toledo would compete with Detroit and Windsor. A casino


in Youngstown might keep Ohioans from traveling to gambling resorts to the east, such as those


in Pennsylvania, West Virginia, and New York. Building a casino in Dayton or Cincinnati might


lure gamblers who might otherwise take a road trip to Indiana. After analyzing these factors, it


appears that Toledo meets all of them, and Youngstown and Dayton also would be appealing to


voters.


           The casino issue must also present some plan for the tax dollars, such as funding


education. Each time Ohio has expanded its gambling laws, a secondary purpose has


accompanied the new law.266 Gambling advocates have tried to use education funding as a carrot


before. Although education funding was part of the successful lottery issue in 1973,267 it has not


led to passage of a slot machine or casino initiative.268 Perhaps it would be judicious to create a




266
   See OHIO REV. CODE ANN. § 3769.087(A) (2007) (allocating two-thirds of racetrack taxes to the PASSPORT
fund, which provides medical care for the elderly); OHIO CONST. art. XV, § 6 (allowing bingo, provided that it is for
charitable purposes; allowing a state lottery, provided that the profits are used solely for education).
267
      OHIO CONST. art. XV, § 6
268
   See Marrison, supra note 155 (promising $186 million for schools in the 1996 riverboat proposal); Armon, supra
note 163 (calling the 2006 proposal “Learn and Earn”).


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fund for a heavily voting constituency, such as the elderly, which is what the legislature did for


pari-mutuel horse racing.269


           Lastly, the organizers of the next casino proposal must examine where their predecessors


went wrong. They must strive for clarity, integrity, and fairness. Ohioans will refuse to give a


windfall to individuals. A bidding process for licenses would help. So would a procedural


safeguard, such as allowing the casinos only on a trial basis.




IV.           CONCLUSION


           As money continues to trickle out of Ohio, it is imperative that the Buckeye State creates


a plan to compete with its neighbors for gambling revenue. Ohio has consistently rejected casino


proposals by about 25 percentage points.270 The slot machine proposal was slightly closer, but


still not a nail-biter.271 Because Indian gaming is not a realistic alternative, Ohio‟s only chance


for a casino is through a voter initiative.




269
      OHIO REV. CODE ANN. § 3769.087(A) (2007).
270
   Associated Press, supra note 147 (showing the 1990 proposal lost by a 62-to-38 margin); Ludlow, supra note 145
(showing the same margin for 1996); Editorial, supra note 6 (showing a 63-to-37 margin in 2008).
271
      Provance, supra note 161 (showing a 57-to-43 margin on the 2006 slot machine proposal).


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           Despite casino advocates‟ repeated failures, that there are several legal forms of gambling


in Ohio. 272 That fact suggests that most Ohioans are not completely opposed to gambling. If a


gambling proposal is done right, Ohioans will vote for it. Primarily, casino advocates must


understand that Ohioans want a fair deal. Ohioans will not make you rich without getting a lot


out of it. For example, the lottery provides money for schools.273 With bingo, it receives money


for charity.274 With horse racing, it receives money for the elderly.275


           No casino advocate has gained the trust of Ohio‟s newspapers or even more than 38


percent of the voting base.276 On top of being fair, the proposed amendment must be backed by


someone with community respect. That respected person must present the amendment clearly,


without loopholes.


           The advocates also must be mindful of the strategy involved with finding locations for


the casinos. Toledo, Youngstown, and Cincinnati appear to be prime communities to satisfy the
272
      See, e.g., Ohio State Racing Commission, supra note 131.
273
      Barajas, supra note 70.
274
      OHIO CONST. art. XV, § 6.
275
      OHIO REV. CODE ANN. § 3769.087(A) (2007).
275
      OHIO REV. CODE ANN. § 3769.087(A) (2007); OHIO REV. CODE ANN. § 173.40 (2005).
276
   See SCIENCE LETTER, supra note 174 (showing that none of Ohio‟s eight largest newspapers supported the casino
issue in 2008); Chancellor, supra note 148 (reporting that the 1990 casino proposal only garnered 38 percent of the
vote). The casino proposals in 1996 and 2008 received 38 and 37 percent, respectively. Ludlow, supra note 145;
Editorial, supra note 6. The 2006 slot machine initiative received 43 percent. Provance, supra note 161.


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state‟s goals and achieve passage of the amendment. Regulations must also be a big part of the


plan. The interstate compact between Nevada and Ohio sounds like a workable idea to jumpstart


Ohio into the industry.277


           Judging from the financial success Ohio‟s neighbors have achieved with casinos, the


initiative would create millions in revenue.278 With Ohio‟s economy lagging, the state must act.


Casino advocates must finally craft an amendment that will induce Ohioans to go “all in.”




277
      See McNeil, supra note 3 at 450.
278
  See generally Revenue FY 2007/2008, supra note 21 (showing that Pennsylvania‟s slot machines brought in
hundreds of millions of dollars in 2007).


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