LITTLE ROCK — Attorney General Dustin McDaniel’s determination that a proposed constitutional amendment to allow casinos in four counties is legally insufficient, after he previously certified it, smells of politics in the opinion of the proposal’s backer.
McDaniel says politics had nothing to do with his decision.
Professional Poker Player Nancy Todd is seeking to place on the November ballot a proposed constitutional amendment that would allow her company, Nancy Todd’s Poker Palace and Entertainment Venues LLC, to operate casinos in Crittenden, Franklin, Miller and Pulaski counties. McDaniel rejected the wording of her first two versions of the proposal but certified her third submission in April.
Todd said McDaniel actually approved the measure three times, because it was challenged twice by the backer of a rival casino proposal, Texas businessman Michael Wasserman, and both challenges were rejected by Secretary of State Mark Martin on McDaniel’s advice.
The proposal was challenged again by Stop Casinos Now, a group funded by the parent company of Southland Park greyhound park in West Memphis, and last month Martin declared the ballot item legally insufficient.
Martin issued the ruling on the advice of McDaniel, who said the ballot title did not adequately advise voters of the amendment’s possible impact on the operation of electronic games of skill at Southland and Oaklawn Park thoroughbred track in Hot Springs. A 2005 state law allowed local voters to decide if the tracks could operate the games — voters in both locales approved — but casino gambling is prohibited under the state constitution.
“It’s politics, it’s deeply entrenched politics,” Todd said. “It’s always politics when you can get somebody to flip-flop on something that they certified on three separate occasions.”
McDaniel said through a spokeswoman that “it is always prudent” to review ballot language before issuing an opinion.
Arkansas Code 7-9-107 requires backers of ballot initiatives to submit them to the attorney general for certification of the popular name and ballot title before collecting signatures.
Arkansas Code 7-9-503 requires the secretary of state, after consultation with the attorney general, to determine whether a ballot question is clear, complete and consistent with the state and federal constitutions.
“In this final review, our office identified a concern regarding the potential confusion to the voter over the issue of electronic gaming at Oaklawn and Southland,” McDaniel spokeswoman Cindy Murphy said Friday. “As such, we made the secretary of state aware of it. Whatever weight he gave it is for him to say. Politics played no role in that legal determination.”
McDaniel, who has announced plans to run for governor in 2014, said publicly in July — after he certified the measure but before he advised Martin to reject it — that he personally opposed Todd’s proposed amendment and would vote against it if it got onto the ballot.
Todd said she thought it was inappropriate for McDaniel to take a public position on an issue that he was not done evaluating as attorney general.
“I think it would be more appropriate as an elected official to make those statements after everything is outside of his office,” she said.
Murphy said Friday, “It is not unusual for the A.G. in his private capacity to express a position as to how he will vote on a ballot issue. But that position does not affect the office’s role in providing advice to the secretary of state in these matters.”
Graham Sloan, executive director of the state Ethics Commission, said he was not aware of any law that would prohibit the attorney general from taking a public position on a ballot issue he was evaluating.
“In the judicial realm, yes, there would be,” he said. “The Code of Judicial Conduct would prohibit a judge from talking publicly about an ongoing case, but there’s not a code of attorney general conduct.”
But Sloan said that if an attorney general said he opposed a ballot item personally and then rejected that ballot item as attorney general, “when you appealed, you’d sure want to make that argument, (that) he was prejudiced and biased.”
Todd’s initial submission of signatures fell far short of the 78,133 signatures of registered voters needed to place a constitutional amendment on the ballot. Martin gave her 30 days to correct deficiencies, and last month she submitted more than 100,000 additional signatures.
Despite Martin’s rejection of it, the measure has been certified for the ballot because Todd has filed an appeal with the state Supreme Court. If the court upholds Martin’s ruling it could order that votes for the measure not be counted.
Todd moved to Little Rock from Las Vegas earlier this year. Some have criticized her as an outsider seeking to give herself a casino monopoly in Arkansas.
Todd noted that Southland’s parent company, Delaware North Companies, is located in New York state and that Oaklawn owner Charles Cella lives in Missouri.
“Both of them are from out of state, and yet they are deeply entrenched in the political system here,” she said.
In the first half of 2012, the two race tracks took in a combined total of $1.3 billion from wagers on electronic games of skill.
Meanwhile, Wasserman is appealing Martin’s rejection of his proposed constitutional amendment to allow his company, Arkansas Hotels and Entertainment Inc., to operate casinos in seven counties. That measure also has been certified for the ballot while the matter is in court.
Martin rejected that proposal because of insufficient signatures. He said Wasserman was not entitled to extra time to collect signatures because his petition was invalid on its face.
Wasserman’s attorney, John Harmon, suggested last week that the political power of the race tracks had influenced Martin’s decision.
“There are some moneyed interests in this state that don’t favor anyone else being able to have a gambling place,” Harmon said.
Martin spokesman Alex Reed said the suggestion of political motivation was false and that “we are committed to following the law.”