Goodwin Gaming
July 6, 2016

Massachusetts Gaming Update: Ballot Initiative for Second Slots Parlor

A petition to allow a second slots parlor in Massachusetts has moved one step closer to advancing to the November 2016 ballot. In December 2015, opponents to the ballot initiative filed suit challenging the petition on the ground that it was not properly certified by the Attorney General. On Tuesday, June 28, the Massachusetts Supreme Judicial Court (“SJC”) gave the procedural green light to the petition, finding it was properly certified and disregarding the plaintiffs’ claims of the proponent’s self-interest in seeing the proposed law enacted. If enough signatures are gathered in July, the petition will have punched its ticket to the November polls.

As a recap, on August 4, 2015, Eugene McCain filed an initiative petition seeking to broaden the 2011 Expanded Gaming Act by authorizing the Massachusetts Gaming Commission to license a second slots parlor within 1,500 feet of a horse race track or a location that can accommodate horse racing. On September 2, 2015, the Attorney General certified the measure, as required under Article 48 of the Amendments to the Massachusetts Constitution, and filed it with the Secretary of the Commonwealth. Then, on December 7, 2015, registered voters and residents in Suffolk County filed suit against the Attorney General and the Secretary in an effort to halt the petition.

According to the Suffolk County plaintiffs, the petition involves only regional concerns and, therefore, is excluded under Article 48’s “local matters” restriction which prevents local matters from being decided by all Massachusetts voters. In support of the “local matters” argument, the plaintiffs maintained that the petition’s language is so narrow that a license could only be granted to an applicant who seeks to build a slots parlor near Suffolk Downs race track in Boston—to which the SJC responded, “no dice.” The SJC noted that gaming is regulated by the Commonwealth, not regions, and that building, operating, and taxing a slots parlor would have an economic impact statewide. In addition, in rejecting the “local matters” argument, the court determined that the petition’s requirements did not necessarily limit the location to Suffolk Downs because Brockton Fairgrounds and Plainridge Park (an existing slots parlor and race track) are additional sites meeting the petition’s requirement that the slots parlor be adjacent to a horse race track.

The plaintiffs also claimed that the petition too closely resembles question three on the 2014 ballot, which sought unsuccessfully to prohibit casinos, slots parlors, and wagering on broadcasted greyhound races. Under Article 48, an initiative petition cannot be “substantially the same as any measure” presented at “either of the two preceding biennial state elections.” The SJC also rejected the plaintiffs’ “substantially the same” argument, finding the Attorney General properly certified that initiative petition because asking voters to allow the licensing of a second slots parlor adjacent to a horse race track is distinct from asking voters to prohibit casinos, slots parlors, and wagering on broadcasted greyhound races.

In presenting their claims, the plaintiffs argued Eugene McCain, the petition’s proponent, is interested in seeing the petition’s proposed law enacted because Mr. McCain has future rights to a property of land near Suffolk Downs that could potentially be the site for a slots parlor. In its decision, the SJC focused only on the proposed law, “not on the motives that may lie behind it; [instead] the voters may consider those motives in deciding how they vote on the petition.” And if the petition garners enough signatures, then the voters may have the opportunity to do just that in November.