BOISE – The Coeur d’Alene Tribe is asking the Idaho Supreme Court to declare Gov. Butch Otter’s attempted veto of the instant racing repeal bill invalid, and enforce the law banning the slot machine-like devices on its effective date of July 1.
The lawsuit, filed directly with the Idaho Supreme Court on Wednesday, asks the justices to order Idaho Secretary of State Lawerence Denney to certify SB 1011 into law, saying that’s what the Idaho Constitution requires.
“The powers defined by the Constitution are an essential part of the checks and balances of our democracy,” Deborah Ferguson, attorney for the tribe, wrote in legal arguments filed with the court. “The governor cannot enlarge his veto power under the Constitution. … The Constitution was not created for the benefit of the governor or the Legislature. Instead, it was created by our founders to protect the citizens of Idaho and their right to have duly enacted laws enforced. This basic right goes to the heart of our democracy.”
Ferguson is the same attorney who successfully represented four lesbian couples whose lawsuit overturned Idaho’s ban on same-sex marriage last year.
The instant racing repeal bill passed both houses of the Idaho Legislature this year by more than two-thirds margins, to repeal a law passed two years earlier to allow wagering on “historical” horse races, or replays of randomly selected past races. Lawmakers said they were duped, however, when the machines were installed at three Idaho locations – including 35 at the Greyhound Park Event Center in Post Falls, hundreds at Les Boise Park near Boise and dozens at an off-track betting bar in Idaho Falls – and they looked, sounded and acted like slot machines.
Backers of the move said the so-called “instant racing” machines, which show a few seconds of the end of a horse race on a tiny screen while reels spin, lights flash and the player either wins or loses, would save Idaho’s financially troubled horse racing industry by raising money for race purses.
The bill was among the most heavily lobbied of this year’s legislative session. Otter had five days to act on it after it passed, with the deadline falling on the Saturday afternoon before Easter. Lawmakers had adjourned for the weekend on Thursday. So Otter announced he wouldn’t reveal his decision until the following Monday.
But not only did he keep his veto decision, which he later said occurred Friday afternoon, secret, he never delivered the vetoed bill back to the Senate until Monday morning. That was after the deadline, according to statements entered into the Senate journal by Senate President Pro-Tem Brent Hill, R-Rexburg; Senate Minority Leader Michelle Stennett, D-Ketchum; and Senate Secretary Jennifer Novak.
The Coeur d’Alene Tribe, which pushed for the bill, called on Denney to certify the law, but he refused.
Denney said last month that he didn’t believe he had the authority to certify the bill as law. “I think the court is probably the appropriate place to have those questions answered,” he said.
“The integrity of the lawmaking process is at stake,” Ferguson wrote in court documents. “Neither the Legislature nor the people can force the Secretary of State to perform his duties if he refuses; only this Court can do so.”
The court filing cites several similar cases, from Idaho and elsewhere, in which governors’ attempted vetoes after the deadline had passed were ruled invalid.
After Idaho senators received the governor’s message, and after entering into their journal the statements about the failure to meet the deadline, they took a veto override vote anyway. It failed, as a majority voted to override the veto, but not the required two-thirds.
“This action had no legal effect because the bill had already become a law,” Ferguson wrote. “The governor had five days to return SB 1011 to the Senate with his veto message. He failed to do so.”
Mark Warbis, spokesman for Otter, said Wednesday that the governor had no comment. Todd Dvorak, spokesman for Attorney General Lawrence Wasden, said Wasden’s office was still reviewing the legal filing, which seeks an expedited review before July 1.
Chief Allan, chairman of the Coeur d’Alene Tribe, said, “The record clearly shows the governor did not follow the constitutional requirements for a legal and valid veto. It’s a shame the Secretary of State has chosen to waste taxpayer dollars by refusing to do his job. Unfortunately, we have no choice but to pursue this matter in court.”
David Adler, a constitutional scholar, former professor and president of the new Sun Valley Institute, noted that Jennifer Novak, secretary of the Senate, submitted a formal letter to the Senate, which was entered into the Senate’s official journal on that Monday, stating that she had received other correspondence from the governor over that weekend, but not a veto. “So there’s every reason to believe that if the governor did in fact intend to veto that bill that weekend, his office would have provided that correspondence to the secretary of the Senate as it did with other correspondence,” Adler said.
He said, “The Idaho Constitution and the applicable statute are very clear, and the governor did not meet the deadline.”
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter.