Could Idaho voters legalize 'small stakes' video bingo, keno, blackjack, and poker machines in liquor-licensed establishments by initiative?
Plain-English summary
A petitioner filed an initiative in November 1999 styled as the "Small Stakes Video Machine Gaming" measure. It would have created a new Idaho Code § 23-929 letting liquor-licensed establishments offer up to five "video, bingo, keno, blackjack, draw poker, reel or other approved gaming machines" for "public play only," with limits on prizes and regulatory oversight by the Director of the Department of Law Enforcement.
The AG's certificate was short and direct. The Idaho Constitution at art. 3, § 20 prohibits all forms of gambling not specifically excepted. Subsection 2 specifically bans "any form of casino gambling including, but not limited to, blackjack, craps, roulette, poker, baccarat, keno and slot machines," along with "any electronic or electromechanical imitation or simulation of any form of casino gambling." The proposed initiative was, by its own language, an attempt to legalize the very devices and games that the Idaho Constitution forbade.
Under the equal-footing doctrine the Idaho Supreme Court applied in Westerberg v. Andrus, an initiative is on equal constitutional footing with a statute. So if the Legislature would be barred from enacting a statute, voters are likewise barred from enacting it through initiative. Westerberg itself struck down a voter-passed lottery initiative on that logic. Simpson v. Cenarrusa applied similar reasoning to ballot legend requirements. The AG concluded a reviewing court would invalidate the proposed initiative because it directly conflicts with art. 3, § 20.
Currency note
This opinion was issued in 1999. 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.
Idaho's gambling framework, both the constitutional ban at art. 3, § 20 and the statutory enforcement provisions, has evolved since 1999, with subsequent litigation, voter-approved tribal compacts, and statutory amendments shaping the landscape. Anyone researching current Idaho gambling law should consult current materials, not this 1999 certificate.
Common questions
Q: What does "casino gambling" cover under Idaho's constitutional ban?
A: Article 3, § 20 lists examples (blackjack, craps, roulette, poker, baccarat, keno, slot machines) but is not exhaustive. The ban also reaches "any form of casino gambling" plus "any electronic or electromechanical imitation or simulation" of casino gambling. The proposed video machines would offer keno, blackjack, draw poker, and reel-style games, all of which fall squarely within the listed categories.
Q: What is the equal-footing doctrine?
A: It is the rule that initiative-passed legislation has the same legal effect as statute-passed legislation, and is subject to the same constitutional limits. The Idaho Supreme Court used this in Westerberg v. Andrus to strike down a voter-passed lottery initiative as unconstitutional under art. 3, § 20. The same logic applies here.
Q: How is "small stakes" relevant?
A: It is not, for constitutional purposes. The Idaho Constitution does not condition the gambling ban on stakes size. Whether a slot machine takes a quarter or a hundred-dollar bill, it is still a slot machine. The initiative's "small stakes" framing did not address the constitutional problem.
Q: What was the AG's role here?
A: Idaho Code § 34-1809 requires the AG to review every initiative for matters of substantive import within twenty working days. The recommendations are advisory and not binding on the petitioners.
Background and statutory framework
The Idaho Constitution's anti-gambling provision, art. 3, § 20, was strengthened in 1992 to include the explicit casino-gambling ban that is the centerpiece of this analysis. The carve-outs in subsections 1(a) through 1(c) cover horse racing pari-mutuel betting, charitable bingo and raffles, and the state lottery established by 1986 constitutional amendment.
The Westerberg v. Andrus decision is the leading Idaho case on the equal-footing doctrine in the gambling context. The Idaho Supreme Court invalidated a voter-passed lottery initiative because the Idaho Constitution at the time barred lotteries; the only path to a state lottery was through a constitutional amendment, which voters later passed.
Citations and references
Constitutional provisions: Idaho Const. art. 3, § 20.
Statutes: Idaho Code § 34-1809; proposed Idaho Code § 23-929.
Idaho cases: Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988) (equal-footing doctrine; lottery initiative invalidated); Simpson v. Cenarrusa, 130 Idaho 609, 944 P.2d 1372 (1997) (ballot legend requirements struck down for constitutional conflict).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C121399.pdf
Original opinion text
December 13, 1999
Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review
Proposed Initiative Regarding Small Stakes Video Machine Gaming
Dear Mr. Cenarrusa:
An initiative petition was filed with your office on November 22, 1999, that would add a new section to chapter 9, title 23, Idaho Code. Pursuant to Idaho Code § 34-1809, this office has reviewed the proposed initiative and has prepared the following advisory comments. It must be stressed that, given the strict statutory timeframe in which this office must respond and the complexity of the legal issues raised in this proposed initiative, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."
BALLOT TITLES
Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares the titles, if petitioners would like to propose language with these standards in mind, we would recommend that they do so and their proposed language will be considered.
MATTERS OF SUBSTANTIVE IMPORT
The proposed initiative would create a new provision titled, "Small Stakes Video Machine Gaming," as Idaho Code § 23-929. Section one of the contemplated statute would make it lawful to "make available for public play only, up to five (5) video, bingo, keno, blackjack, draw poker, reel or other approved gaming machines" in establishments holding a liquor license. The remainder of the contemplated statute establishes limits on prizes and creates various regulatory duties for the director of the Department of Law Enforcement.
Article 3, § 20 of the Idaho Constitution prohibits all forms of gambling, except the types of gambling specifically enumerated in subsections 1(a) through 1(c). Article 3, § 20, subsection 2, specifically prohibits "any form of casino gambling including, but not limited to, blackjack, craps, roulette, poker, baccarat, keno and slot machines." This prohibition includes "any electronic or electromechanical imitation or simulation of any form of casino gambling."
The proposed initiative is an attempt to legalize a method of casino gambling that is specifically prohibited by art. 3, § 20 of the Idaho Constitution. Legislation that is passed via citizen initiative has the same force and effect as legislation passed by the legislature. See, e.g., Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988). As a result, a reviewing court will invalidate legislation passed via citizen initiative that directly conflicts with a constitutional requirement. See, e.g., Simpson v. Cenarrusa, 130 Idaho 609, 944 P.2d 1372 (1997) (prohibiting the secretary of state from implementing certain ballot legend requirements promulgated via citizen initiative because those requirements violated constitutional provisions). Therefore, this office concludes that a reviewing court will invalidate the proposed initiative because it directly conflicts with Art. 3, § 20 of the Idaho Constitution.
Sincerely,
ALAN G. LANCE
Attorney General
Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General