Why did the Arkansas AG certify the 2018 casino-gaming amendment proposed by Alex Gray for Crittenden, Garland, Pope, and Jefferson counties?

Plain-English summary

Alex Gray's coalition submitted a proposed constitutional amendment ("The Arkansas Casino Gaming Amendment of 2018") that would have required the Arkansas Racing Commission to issue four casino licenses, with two automatic and two competitive:

• Automatic: one to Southland Racing Corporation (greyhound track in Crittenden County) and one to Oaklawn Jockey Club, Inc. (horse track in Garland County), without an application process.
• Competitive: one to be sited in Pope County within two miles of Russellville, and one in Jefferson County within two miles of Pine Bluff. Applicants would have to demonstrate casino-gaming experience and submit either a county-judge letter of support, a quorum-court resolution, or, if sited in a city, a mayoral letter of support.

Casino gaming was defined broadly to include card games, dice, electronic and electromechanical games, and acceptance of wagers on sporting events (when not prohibited by federal law). Individuals under 21 would be barred from casino gaming.

Tax framework: a tiered net-casino-gaming-receipts tax (13% on first $150 million per fiscal year, 20% above $150 million), distributed 55% to the state General Revenue Fund, 17.5% to the Arkansas Racing Commission Purse and Awards Fund (split between Oaklawn and Southland for live horse and greyhound purses), 8% to the host county, and 19.5% to the host city (or to the host county if outside any city).

Casino licensees would be permitted to operate any day at any hours and to sell intoxicating liquor on premises, including in dry counties (specifically overriding Ark. Code Ann. §§ 3-3-211 and 3-9-201 et seq.).

AG Rutledge certified the popular name and ballot title as submitted, with a cautionary note about the size and complexity of the proposal. The opinion includes the standard canvasser-and-signer instructions required by Ark. Code Ann. § 7-9-108. The measure went to the November 2018 ballot as Issue 4 and was approved by Arkansas voters.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How is this amendment different from earlier Arkansas casino-related ballot measures?
A: It targeted four specific sites (two of which were existing pari-mutuel facilities receiving automatic licenses) rather than authorizing casino gaming statewide or in dry counties generally. The narrow geographic scope and the named-licensee structure made it more politically focused than open-ended legalization proposals.

Q: What was the rationale for giving Southland and Oaklawn automatic licenses?
A: Both were already franchise holders for pari-mutuel racing under Ark. Code Ann. §§ 23-110 and 23-111. The amendment dovetailed with their existing operations rather than disrupting them. The two automatic licenses also helped the campaign secure the support of established gaming operators and racing-industry constituencies.

Q: How was the casino tax going to be split?
A: 55% to the state General Revenue Fund, 17.5% to the Racing Commission Purse and Awards Fund (further split between Oaklawn and Southland based on the racing format and, after January 1, 2024, by pari-mutuel handle), 8% to the host county, and 19.5% to the host city (or to the county if outside any city).

Q: Did the amendment override local "dry county" laws?
A: For the casino licensees, yes. Casinos could sell intoxicating liquor on premises during all hours of operation, expressly overriding the Christmas Day prohibition (§ 3-3-211) and the dry-county vote requirement (§ 3-9-201 et seq.). Off-premises sales would still go through licensed Arkansas wholesalers.

Q: What about sports betting?
A: The definition of casino gaming included accepting wagers on sporting events. The amendment authorized sports betting at the licensed casinos when not prohibited by federal law. The 2018 timing matters: the U.S. Supreme Court had decided Murphy v. NCAA on May 14, 2018, opening up state-level sports betting nine days before this opinion was issued.

Q: Was this measure approved?
A: Yes. It was approved by Arkansas voters in November 2018 as Issue 4, becoming Amendment 100 to the Arkansas Constitution.

Q: How does the AG's certification interact with later constitutional and statutory implementation?
A: The certification clears the measure for petition circulation and ballot listing. Implementation post-approval falls to the Racing Commission and the General Assembly, with rulemaking deadlines built into the amendment.

Background and statutory framework

Arkansas had a longstanding restrictive approach to casino gaming. Pari-mutuel racing at Oaklawn (horses, Garland County) and Southland (greyhounds, Crittenden County) was authorized under separate statutes, with electronic games of skill at those tracks added by the local-option act in 2005 (Ark. Code Ann. § 23-113-101 et seq.). The state lottery had been authorized by Amendment 87 in 2008.

Full casino gaming, by contrast, was not authorized in 2018. This proposed amendment changed that by constitutional fiat, narrowly targeting four sites and exempting casino gaming from the local-option act's restrictions.

The AG's review under Ark. Code Ann. § 7-9-107 focused on whether the popular name and ballot title accurately and impartially summarized the proposal. The body of Arkansas Supreme Court doctrine on what makes a ballot title legally sufficient (Pafford v. Hall, Becker v. Riviere, Bailey v. McCuen) provided the framework. The AG's cautionary note reflected that long, complex measures invite ballot-title challenges.

Citations and references

Statutes and constitutional provisions:

• Ark. Code Ann. § 7-9-107 (AG ballot-title review)
• Ark. Code Ann. § 23-110-101 et seq. (Arkansas Horse Racing Law)
• Ark. Code Ann. § 23-111-101 et seq. (Arkansas Greyhound Racing Law)
• Ark. Code Ann. § 23-113-101 et seq. (Local Option Horse Racing and Greyhound Racing Electronic Games of Skill Act)
• Ark. Code Ann. § 23-115-101 et seq. (Arkansas Scholarship Lottery Act)
• Ark. Code Ann. § 25-15-201 et seq. (Arkansas Administrative Procedures Act, for ABC rulemaking)
• Ark. Code Ann. § 3-3-211 (Christmas Day liquor sales prohibition, overridden for casinos)
• Ark. Code Ann. § 3-9-201 et seq. (dry-county vote requirement, overridden for casinos)
• Ark. Const. amend. 84 (bingo and raffles)
• Ark. Const. amend. 87 (state scholarship lottery)

Cases:

• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (popular name as legislative device)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (impartial summary)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts disclosure)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal consistency)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

The full text of the opinion includes (1) the AG's standard description of her role under Ark. Code Ann. § 7-9-107, (2) the certified popular name describing the four counties and named licensees (Southland in Crittenden, Oaklawn in Garland, Pope, Jefferson), (3) the long ballot title summarizing the regulatory and tax structure (13%/20% net-receipts tax, distribution percentages, on-premises liquor sales, sports-wagering inclusion), (4) the AG's certification with a cautionary note about complexity, and (5) the canvasser-and-signer instructions required by Ark. Code Ann. § 7-9-108. The full enclosed measure text (Sections 1 through 11 of the proposed Amendment) is preserved in the linked landing page above.

Opinion No. 2018-068
May 23, 2018

Alex T. Gray, Esq.
Steel, Wright, Gray & Hutchinson, PLLC
400 West Capitol Avenue, Suite 2910
Little Rock, AR 72201

Dear Mr. Gray:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2017), of the popular name and ballot title for a proposed initiated measure.

[Standard discussion of the AG's role under Ark. Code Ann. § 7-9-107 follows.]

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name
An Amendment to Require Four Licenses to be Issued for Casino Gaming at Casinos, One Each in Crittenden (to Southland Raing [sic] Corporation), Garland (to Oaklawn Jockey Club, Inc.) Pope, and Jefferson Counties

Ballot Title
An amendment to the Arkansas Constitution to require that the Arkansas Racing Commission issue licenses for casino gaming to be conducted at four casinos in Arkansas, being subject to laws enacted by the General Assembly in accord with this amendment and regulations issued by the Arkansas Racing Commission ("Commission"); defining "casino gaming" as dealing, operating, carrying on, conducting, maintaining, or exposing for play any game played with cards, dice, equipment, or any mechanical, electromechanical, or electronic device or machine for money, property, checks, credit, or any representative value, as well as accepting wagers on sporting events; providing that individuals under 21 are prohibited from engaging in casino gaming; providing that the Commission shall issue four casino licenses, one to Southland Racing Corporation ("Southland") for casino gaming at a casino to be located at or adjacent to Southland's greyhound track and gaming facility in Crittenden County for as long as Southland holds a license, one to Oaklawn Jockey Club, Inc. ("Oaklawn") to require casino gaming at a casino to be located at or adjacent to Oaklawn's horse track and gaming facility in Garland County, one to an applicant to require casino gaming at a casino to be located in Pope County within two miles of Russellville, and one to an applicant to require casino gaming at a casino to be located in Jefferson County within two miles of Pine Bluff; [further provisions on application requirements, tax structure (13% on first $150 million net casino gaming receipts and 20% above), distribution of proceeds (55% state General Revenue, 17.5% Racing Commission Purse and Awards Fund, 8% host county, 19.5% host city), on-premises liquor sales overriding dry-county and Christmas Day restrictions, federal-law-compliant gambling-device shipments, and supersession of conflicting law].

RESPONSE

Your proposed popular name and ballot title are certified as submitted. I believe a cautionary note is warranted, however, in light of the significance of the subject matter undertaken (a constitutional amendment requiring casino gaming and taxation thereof) and the complexity and far-reaching effects of this proposal. You should be aware that experience has shown a correlation between the length and complexity of initiated measures and their susceptibility to a successful ballot title challenge. Any ambiguity in the text of a measure could lead to a successful challenge.

Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith are instructions that should be incorporated in your petition prior to circulation.

Sincerely,

Leslie Rutledge
Attorney General

Enclosure (canvasser-and-signer instructions per Ark. Code Ann. § 7-9-108 and the substantive text of the Arkansas Casino Gaming Amendment of 2018).