The North Carolina Institute for Constitutional Law (former-Justice Robert Orr, in particular) will go before a Wake Co. judge tomorrow looking for an injunction to stop the lottery (AP Wire story at Charlotte.com). According to NCICL, the NC Constitution required that the lottery-enabling bill be read before each house of the legislature three times on three separate days. That didn't happen, so (the argument goes) the law is void. And the lottery is void.
If that sounds like calling the whole game on a technicality to you, you're probably not alone. On the one hand, the "read-three-times" requirement is applied to several different kinds of laws in the state constitution, and they're all things that the legislature should be required to take very seriously (such as reapportionment plans, constitutional amendments, and bills raising taxes). "Sleep on it," says the constitution. On the other hand, do we really think the law wouldn't pass if it went back before the legislature and they had to listen to it three more times? Does Art Pope think he can change some votes? (The NCICL is a Pope-baby.)
Of course, those aren't the questions in court. In court, the question will be whether the following constitutional provision, Art. II, § 23, was violated:
No law shall be enacted to raise money on the credit of the State, or to pledge the faith of the State directly or indirectly for the payment of any debt, or to impose any tax upon the people of the State, or to allow the counties, cities, or towns to do so, unless the bill for the purpose shall have been read three several times in each house of the General Assembly and passed three several readings, which readings shall have been on three different days, and shall have been agreed to by each house respectively, and unless the yeas and nays on the second and third readings of the bill shall have been entered on the journal.
If I understand how this lottery is to be operated (and I fully acknowledge that to be a big "if"), it looks like the only way Orr can win this argument is by convincing the court that the lottery is a tax. And while it's not crazy to call the lottery a tax in everyday conversation, I'd be surprised if it meets the definition of "tax" in this provision. Indeed, it isn't hard to find North Carolina opinions interpreting this section (or its predecessor) that read the word "tax" narrowly. North Carolina Eastern Mun. Power Agency v. Wake County, 1990, 398 S.E.2d 486, 100 N.C.App. 693, North Carolina Ass'n of ABC Boards v. Hunt, 1985, 332 S.E.2d 693, 76 N.C.App. 290, McLean v. Durham County Board of Elections, 1942, 21 S.E.2d 842, 222 N.C. 6, O'Neal v. Jennette, 1925, 129 S.E. 184, 190 N.C. 96. I've only read synopses of these cases, but I'll bet an underlying thread is judicial unwillingness to undo the otherwise-legal actions of the people's representatives on a technicality.
Besides, even if the law is found to be unconstitutional, it's likely that the legislature can cure the problem by passing an amendment to the bill and following the three day procedure in doing so. Reeves v. Board of Educ. of Buncombe County, 1933, 167 S.E. 454, 204 N.C. 74. Or, the legislature could just re-read the bill one or two more times, add these to the prior reading(s), and call it even. Edwards v. Nash County Board of Com'rs, 1922, 110 S.E. 600, 183 N.C. 58.
Summing up: if the lottery is a tax, it's passage was unconstitutional, but the lottery probably isn't a tax. And if the law is constitutional, then the legislature can easily remedy the problem, but law probably isn't unconstitutional. This whole lawsuit may just be an academic exercise: if Orr loses, the lottery goes forward; if Orr wins, the lottery goes forward perhaps a few days behind schedule.
So why do it? Is it to be seen fighting the lottery to the bitter end? That kind of street cred can be turned into donations down the road. Or does PopeCo have the votes to keep the lottery from going through a second time? The approving vote in the House was 61-59, Jim Black is busy defending his image right now, and some of the shine has worn off of the idea of an "education" lottery. The lottery fight may not be over yet.