The Massachusetts constitution gives voters wide latitude to propose changes in state law, and a ballot measure proposed by gambling critics bent on repealing the state’s controversial 2011 casino legislation falls squarely within that power. So when Attorney General Martha Coakley blocked the measure last year, casino opponents understandably sued to overturn her decision in state court. Keeping the question off the November ballot may soothe the anxieties of gambling firms. But Coakley’s office simply hasn’t offered a compelling legal rationale for denying voters a direct voice on the gambling issue. The Supreme Judicial Court, which heard arguments in the case this week, should overturn the attorney general’s decision, and quickly.
Under state law, it’s up to the attorney general to certify that initiatives meet constitutional requirements, one of the first steps in a process that also involves collecting thousands of signatures, a hurdle the anti-casino campaign cleared easily. Courts have ruled that attorneys general should err on the side of voters, instructing them to green-light referendums “unless it is reasonably clear that a proposal contains an excluded matter.” Coakley has authorized many controversial ballot measures, including the 2008 referendum that banned dog racing. Yet when organizers of the casino repeal filed their petition last year, she rejected it. But her arguments, then and now, are convoluted.
Before the SJC on Monday, Coakley’s office cited a provision in the Massachusetts constitution that prohibits popular initiatives that take away an individuals’ “right to receive compensation for private property appropriated to public use.” But nothing in the repeal proposal takes away anything that fits the common-sense definition of property, such as objects or real estate. Rather, Coakley claims the companies that have applied for the four casino licenses created by the law have an “implied contract” with the state that amounts to a kind of property. Since the applicants have anted up a $400,000 fee to determine an outcome to the licensing process, Coakley says, they have a right to get a resolution of that process, one that voters may not take away.
As a practical matter, though, the gaming commission expects to award all its licenses by November anyway. If the repeal law passes, it wouldn’t go into effect until December. That means the applicants will have received the determination they’ve paid for before the law goes into effect, rendering the attorney general’s central argument against a referendum moot.
And even if the commission misses its deadline, it’s long been understood that the Commonwealth can change the rules governing gambling at will — whether by legislative fiat or at the ballot box. After all, the former operators of dog tracks in Massachusetts invested money in keeping up their licenses, only to see the voters abolish their whole industry.
That precedent has caused some apprehension in the broader business community, because additional wrangling on a high-profile policy matter is said to exacerbate the state’s reputation for unpredictability. Yet the court’s job here is simply to assess the legal issues. At the very least, there is no “reasonably clear” case that anything in the proposed referendum runs afoul of the law — the standard the attorney general should have applied before blocking a vote. The court should authorize the ballot question, and rule quickly to resolve uncertainty around the issue.