Lottery Litigation May Go Forward

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 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.


It's strange to find myself

sharing any point of view with el Pope. I must not be thinking right about this.

Of course, he may just be pissed because there's a bunch of money getting spent and none of it's lining his own winger pockets.

There's nothing quite like a lottery

for bringing together strange bedfellows. I feel like traditional taxes for education should be an easy sell, and I definitely don't like regressively taxing the poor to raise money for education (which money won't go to education anyway). So here's me standing next to the guy who believes that gambling is a sin and a threat to every North Carolinian's quality of afterlife. It is a little weird.

Grade Posting Time

Lance get a A for legal opinion
Orr gets another paycheck from Art and F on legal opinion
Art gets another incompete grade and out another 250 thousand to keep up Orr

Regressive tax?

A bit too rhetorical. It is only a "tax" on those that choose to waste their money on the thing. I tend towards it because it allows someone working hard and doing the right thing (by not playing) to have a little bit of his tax burden shifted. The only way this is regressive is that it taxes those that are bad at math more than others. But this is a darwinian way to improve math education.

I tend against the lottery because it gives an incentive for the government to educate people to elevate irrational exuberance over playing the lottery over rational calculations of your odds.

All in all, it is a wash. I personally think all gambling should be legalized. I mean are all adults that can make our own decisions after all.

I was careful to make a distinction

in my post concerning different ways to use the word "tax," but in my comment I was sort of puffing the rhetoric to highlight a contrast.

That said, my biggest (perhaps only?) problem with the education lottery is that it shifts the burden of an essential government function away from the people who would pay under a progressive tax scheme. It's no way for a government to do business. Consider an extreme case, where all government funds come from a lottery. If the same segments of society play the lottery under that system as the ones who play today, you've got a tax burden allocation that's completely backwards. That's regressive.

As for the word "tax," we could define it a number of ways, most of which wouldn't include a lottery. But in both taxes and the education lottery, we're talking about the way that the government collects from citizens the cash it takes to make the system go. So it's not a tax; it still stinks.

Legal eyes

Forgot to say that I agree with TG about legalized gambling. And I wouldn't be surprised if I agree with John Hood too. But I'd extend that libertarian instinct to a host of other stuff too. Suicide, drugs, gay marriage, to name a few.

I just don't get the government being in the gambling business.

And I don't understand the rationale in how we discriminate among various "vices" in terms of their deletorious affect. Gambling = okay. Prostitution = not okay?

Shoot. I forgot.

Of course prostitution is worse. It involves sex and we all know what a terrible horrible no good really bad thing sex is.

If the tax fits! You must aquit player?

King George the 3 rd Tax 101... Only the State can force you to pay the Tax!
Do you see anybody being force to play the lottary games by the State?

It appears that Judge Orr and John Boy miss this theory in action course from the American revolution!