6:00 AM EST, November 12, 2012
There was a strong case to be made against Question 7, Maryland's referendum on expanded gambling, and we made it. Although it may make sense for Maryland to adopt table games, and eventually even to allow a sixth casino in Prince George's County, the proposal before voters was a bad deal. It gave too much away to the casino owners and offered too little benefit to taxpayers.
There was a cynical, self-serving and disingenuous case to be made against Question 7, too, and Penn National Gaming made it. The massive casino corporation spent well more than $40 million on television ads, direct mail and other campaigning to sow doubts — many of them illegitimate — in voters' minds about Question 7. Penn did it not because it had Maryland's best interests at heart but because it was trying to protect its marquee property, Hollywood Casino at Charles Town, W.Va.
In spite of it all (and thanks to a similarly expensive campaign by MGM, the prospective developer of a casino at National Harbor), Maryland voters approved Question 7, 52-48. That should be the end of it, but Penn National is back to its old tricks: If you can't beat 'em, delay 'em.
That's the only conceivable purpose for the company's decision to back a lawsuit seeking to invalidate Question 7, and it's all too similar to Penn National's stalling tactics when it used a zoning referendum in Anne Arundel County to try to stop the construction of Maryland Live.
Penn National's legal theory is that although the referendum got a majority of those who voted on Question 7, it did not meet the threshold set up in Maryland's constitution for a gambling expansion: "a majority of qualified voters in the state." The lawsuit, filed last week by a pair of former elected officials from Prince George's County, contends that the wording of the constitution requires an affirmative vote from a majority of registered voters in the state, not just a majority of those who voted on the referendum itself.
Given the fact that about 30 percent of voters failed to show up even in a year with a hotly contested presidential election and seven statewide ballot questions, the standard the lawsuit claims would set an impossibly high bar for a gambling expansion — a supermajority of more than 75 percent.
The Attorney General's Office opined twice on the meaning of the phrase "majority of qualified voters," most recently in January 2011. That letter notes that when the General Assembly passed Maryland's initial slots legislation in 2007, its intention was to make future expansion of gambling more difficult than simply passing a new law. It considered three mechanisms to do so: requiring a supermajority in each chamber of the legislature; setting up a new process in which a gambling expansion bill would automatically go to a voter referendum; and requiring any expansion be done through a constitutional amendment, which is effectively a combination of the first two. Given that the legislature evidently intended to create a mechanism that was harder than regular legislation but easier than a constitutional amendment, the letter concludes, the interpretation that makes the most sense is to read "majority of qualified voters" as meaning a majority of those who voted on the question.
More persuasive — if not for its reasoning, then for its timing — was the other letter, written in November 2007. It was a response to a request from Sen. Edward Kasemeyer, who was the floor leader for the gambling legislation during that fall's special session. It came to the same conclusion as the 2011 letter, and it was written as the Senate was debating the original constitutional amendment that legalized slot machines in Maryland. That provides the best possible evidence that the General Assembly adopted the amendment with the understanding that it would require a majority of those who voted on the question, not a majority of all those registered to vote.
Penn National's stall tactics won't likely have any effect on the Prince George's casino — by law, it won't be allowed to open until July 2016, or 30 months after the opening of the Baltimore City casino, whichever comes first. But it could wind up delaying the advent of table games at Maryland Live — and the 1,200 jobs that will come with them.
Question 7 was certainly not the best deal Maryland taxpayers could have gotten, but now that it has been approved at the ballot box, we ought to at least get what benefit from it we can. Penn National is threatening to stand in the way of that. The company ought to chalk up its $40 million ad campaign as a loss and figure out a way to compete in the marketplace, not the courts.
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