Can the Oregon Racing Commission authorize a horse racing track to operate 225 historical horse racing (HHR) machines in a new entertainment facility on the racetrack grounds?
Plain-English summary
TMB Racing LLC operates Grants Pass Downs, a horse racing course in southern Oregon. In 2022, TMB Racing applied to the Oregon Racing Commission for permission to install 225 "historical horse racing" (HHR) machines in a new entertainment facility on the racetrack grounds. HHR machines look and play like slot machines, but instead of generating outcomes from a random number generator, they pull from a database of previously run horse races and pay out based on how those races finished.
The Racing Commission asked Attorney General Ellen Rosenblum whether it had constitutional authority to approve the operation. The answer was no, on two independent grounds:
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Casinos are constitutionally prohibited. Article XV, section 4(10) of the Oregon Constitution prohibits casinos in Oregon. The AG had previously opined in 1995 that 75 video lottery terminals at one location would constitute a casino. 225 electronic gaming machines at one location plainly qualifies. The fact that the underlying outcome is tied to a previously run horse race rather than a random number generator does not change the analysis.
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The machines are lotteries, not authorized pari-mutuel wagering. Article XV, section 4(1) prohibits lotteries except those operated by the State Lottery. The AG examined the actual machine designs and concluded the player has no meaningful opportunity to exercise skill: the customer presses a button, the machine displays a result derived from random selection of a historical race, and either pays out or does not. That is a lottery in the constitutional sense, and it is not a State Lottery product, so it is unauthorized.
The Racing Commission's existing pari-mutuel authority (ORS chapter 462) does cover wagering on previously held races (ORS 462.155(1), enacted in 2013). But the AG distinguished traditional pari-mutuel pool wagering, where players study handicapping information, choose horses, and pool their money against other players, from HHR machines, which strip out the skill and information component and present the result as a slot-machine pull.
The opinion blocked TMB Racing's expansion plan. It also signals to other Oregon racetracks that any similar HHR plan would face the same analysis.
What this means for you
If you operate or invest in an Oregon racetrack
HHR machines as currently designed are not a path to expanded revenue at Oregon racetracks. The Article XV, section 4 prohibitions are constitutional, not statutory, so the legislature cannot fix this with a simple bill. A constitutional amendment would require referral by the legislature plus voter approval: a substantial political lift.
Realistic paths to expanded gaming at an Oregon racetrack:
- Partner with the Oregon State Lottery to host Lottery video terminals (an option some Oregon racetracks have used).
- Partner with a Tribe under a State-Tribal Gaming Compact (limited, given existing tribal compacts and casino locations).
- Focus on traditional pari-mutuel wagering, off-track betting, advance deposit wagering, and race meet operations.
- Lobby for a constitutional amendment that would authorize a defined category of racetrack-based electronic gaming.
If you're a Racing Commissioner
The opinion gives you a clear authority to deny HHR applications on constitutional grounds. The analytical framework is:
- Look at the machine, not its branding. If it offers electronic gambling outcomes with no meaningful player skill, it is a lottery for constitutional purposes.
- Look at the concentration. The AG's 1995 video-lottery opinion treated 75 terminals as a casino. 225 is plainly a casino.
- Look at where the product fits in the existing pari-mutuel framework. Pool wagering on a posted race is authorized. A slot-machine-style pull tied to a randomly selected past race is not.
If you're a manufacturer of HHR machines
The Oregon market is closed to your current product. The opinion does leave open the question of whether a future product could offer enough player skill to fall outside the lottery definition, but the bar would be high, and you would face an uphill argument that a slot-machine-style interface preserves meaningful skill. Other states (Wyoming, Kentucky, Virginia) have authorized HHR; Oregon has not.
If you're an Oregon legislator
The opinion frames the legal landscape clearly: HHR is constitutionally prohibited under current Article XV, section 4. Any legislative effort to authorize HHR would either need to be paired with a constitutional amendment, or risk being struck down. Constituents pressing for racetrack gaming expansion should be told the political path: SJR or HJR proposing constitutional amendment, voter approval, then implementing legislation.
If you live near a racetrack and oppose expansion
This opinion is a useful citation. The AG's analysis of Article XV, section 4(10) and the 1995 75-terminal opinion together establish that any large concentration of electronic gaming machines at a non-tribal, non-Lottery location is a constitutionally prohibited casino, regardless of branding.
If you live near a racetrack and support expansion
The opinion explains why the path forward is constitutional amendment, not regulatory approval. The Racing Commission's hands are tied by Article XV. Productive advocacy is at the legislature and the ballot, not at the Commission.
Common questions
Q: What is a "historical horse racing" machine?
A: It is an electronic gaming terminal that looks like a slot machine. Instead of generating an outcome with a random number generator, it pulls from a database of thousands of previously run horse races. The player presses a button; the machine selects a previously run race at random, displays a slot-machine-style animation of the result, and pays out or does not. The promotional theory is that this is a form of pari-mutuel wagering on horse racing. The AG and the Wyoming Supreme Court (in Wyoming Downs) both observe that the actual player experience is indistinguishable from slot machines.
Q: Don't other states allow HHR?
A: Yes. Kentucky, Virginia, Wyoming, and a few others have authorized HHR by statute, often with court approval (over varying constitutional challenges). The reason these are state-by-state questions is that each state's gambling laws and constitution are different. Oregon's constitutional prohibition on casinos and on non-State-Lottery lotteries is more restrictive than the laws of states that have approved HHR.
Q: What about pari-mutuel betting on live races at the same track?
A: Pari-mutuel betting on live horse races at a licensed Oregon track has been authorized since 1933. ORS chapter 462 governs it. The Racing Commission can license that operation. The opinion does not affect live-race pari-mutuel wagering.
Q: What about advance deposit wagering or off-track betting?
A: Both are authorized under ORS chapter 462 and have not been put in question by this opinion.
Q: Could TMB Racing have proposed a smaller number of HHR machines?
A: The opinion bases the casino conclusion on the concentration (225 machines is plainly a casino under the 1995 75-terminal opinion's reasoning). It bases the lottery conclusion separately on the design of the individual machines. Even one HHR machine of the design TMB proposed would arguably be a non-State-Lottery lottery and unauthorized. The number-of-machines analysis would matter only for whether a smaller deployment also constitutes a "casino"; the lottery analysis is independent and applies to each machine individually.
Q: Can the Racing Commission authorize any electronic terminals at a racetrack?
A: The Racing Commission can authorize pari-mutuel wagering on horse races (live, on-track, off-track, advance deposit, and previously held races under ORS 462.155(1)). What it cannot authorize is anything that turns out to be a "casino" or a non-State-Lottery "lottery" under Article XV, section 4 of the Oregon Constitution.
Background and statutory framework
The Oregon Constitution's Article XV, section 4
Section 4 was added to the Oregon Constitution by ballot measure in 1984 and modified by subsequent amendments. The relevant provisions for this opinion:
- Section 4(1): prohibits the operation of "any lottery" by anyone other than the State of Oregon (acting through the State Lottery).
- Section 4(10): prohibits casinos in Oregon.
- Section 4(13): provides additional definitional clarity (which the AG opinion uses to interpret the prohibitions).
The constitutional prohibition is the reason Oregon's gambling expansion has been channeled through (a) the State Lottery, (b) tribal gaming under State-Tribal Compacts, (c) the Racing Commission's narrow pari-mutuel authority, and (d) charitable bingo / raffles regulated by the DOJ. Private commercial casinos and slot-machine-style operations are off the table.
Oregon's pari-mutuel framework
Oregon authorized pari-mutuel wagering on horse races in 1933 (ORS chapter 462). The Racing Commission licenses race meets and supervises wagering. ORS 462.155(1), enacted in 2013, allows the Commission to authorize race meet operators "to conduct mutuel wagering at the licensee's race course on horse races previously held." That provision was the textual hook TMB Racing relied on. The AG concluded that section 4(1) of Article XV imposes a constitutional ceiling on what 462.155(1) can authorize: a true mutuel wager (where players pool their money against each other on the result of a posted race) is fine, but a slot-machine interface that strips out the pari-mutuel structure and the player-skill element is a "lottery" outside the constitutional carve-out.
The 1995 75-terminal opinion
In 48 Op Atty Gen 15 (1995), the AG concluded that 75 video lottery machines concentrated at a single location would constitute a casino. The opinion's logic, that a casino is a place defined by the concentration of gambling activity, regardless of the technology: is the foundation for treating 225 HHR machines as a casino in 2022.
The Wyoming comparison
The Wyoming Supreme Court in Wyoming Downs Rodeo Events (2006) extensively analyzed HHR machines and noted that they are designed to compete with slot machines. The Wyoming court ultimately upheld HHR under Wyoming's pari-mutuel laws, but the AG's opinion finds the Wyoming analysis useful for confirming that the actual machine design is slot-machine-style, making the constitutional analysis straightforward in a state like Oregon where casino-style and non-State-Lottery slot-style gaming are constitutionally prohibited.
Citations and references
Constitutional and statutory provisions:
- Or Const, Art XV, § 4 (gambling provisions)
- ORS chapter 462 (Oregon Racing Commission)
- ORS 462.155 (mutuel wagering on previously held races)
Key cases:
- Wyoming Downs Rodeo Events, LLC v. Wyoming, 134 P3d 1223 (Wyo 2006)
Related Oregon AG opinions:
- 48 Op Atty Gen 15 (1995) (75 video lottery terminals as casino)
- OP 8297 (Nov 2025) (online gambling under ORS 167.117)
Source
- Index page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
- Original PDF: https://www.doj.state.or.us/wp-content/uploads/2022/02/OP-2022-1.pdf
Original opinion text
ELLEN F. ROSENBLUM
Attorney General
LISA M. UDLAND
Deputy Attorney General
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
February 11, 2022
SENT VIA EMAIL ONLY: [email protected]
Jack McGrail
Executive Director
Oregon Racing Commission
800 NE Oregon Street, Suite 310
Portland, OR 97232
RE: Opinion Request OP-2022-1
Dear Mr. McGrail:
The Oregon Racing Commission (Commission) is currently considering an application from TMB Racing LLC (TMB Racing), the operator of the Grants Pass Downs horse racing course. The Commission is also considering four applications from vendors affiliated with TMB Racing. The applications relate to TMB Racing's plan to operate 225 historical horse racing machines (HHRs) at a new entertainment facility on the grounds of the race course.
Because of gaming restrictions in our state constitution, you have requested a legal opinion on the authority of the Commission to allow the operation of the proposed HHRs. Whether the state constitution's restrictions on gaming reflect good public policy is not for us to decide. Our role is limited to assessing whether the proposed HHRs are permissible under existing state law.
QUESTION
Does TMB Racing's proposed operation of 225 HHRs comply with the Oregon Constitution's prohibition on casinos and restriction on lotteries?
ANSWER
No. Operating 225 of these HHRs would violate two provisions of the Oregon Constitution: Article XV, section 4(10), which prohibits casinos, and Article XV, section 4(1), which prohibits lotteries, except those operated by the State Lottery.
The planned concentration of 225 electronic gaming machines offering games of chance constitutes a casino. Therefore, TMB Racing's plan violates the constitutional prohibition against casinos.
After reviewing the features and design of the HHRs proposed by TMB Racing, we determine that the machines are games of chance that do not afford players any meaningful opportunity to exercise skill. As a result, we conclude that they are lotteries. Lotteries are constitutionally prohibited in Oregon, unless they are run by the State Lottery. Thus, the HHRs cannot be authorized by the Commission.
BACKGROUND
In 1933, the Oregon Legislative Assembly authorized betting on live horse races. The Commission regulates horse racing in the state, as well as betting on horse races. Traditionally, participants bet on live horse races, either at a race course or at an off-track betting facility. However, since 2013, the Commission may allow race meet operators "to conduct mutuel wagering at the licensee's race course on horse races previously held."
The Commission is currently considering applications related to a plan to operate 225 HHRs at a new entertainment facility located on the grounds of the Grants Pass Downs race course. We have previously opined that 75 electronic terminals offering video lottery machines would constitute a prohibited casino.
We understand that the proposed HHRs allow players to bet on previously run horse races by using a video machine similar in appearance to a slot machine. Examining similar HHRs, the Nebraska Attorney General noted that the "'bells and whistles' associated with slot machines * * * are all present * * *. The machines are the same height and design as a slot machine, and include flashing buttons, blinking lights, [and] video display." This similarity in appearance is not coincidental. The Wyoming Supreme Court has cited patent documents that show these machines are a response to the increased competition the racing industry has seen from lotteries and casinos. Those documents indicate that while "'a typical racetrack offers one race every half hour[, a] casino having slot machines * * * offers a patron the opportunity to place a wager that can be won or lost every few seconds.'"
Based on the information available to us, the proposed HHRs include features that allow two ways for a player to bet on a fixed number of randomly chosen, previously run horse races. Under either option, the player does not have meaningful information about the historical race or the horses, and the result is presented through a slot-machine-style interface.
ANALYSIS
I. The proposed concentration of 225 electronic gaming machines is a casino.
Article XV, section 4(10) of the Oregon Constitution prohibits casinos. We have previously opined that 75 video lottery terminals at a single location would constitute a casino. 48 Op Atty Gen 15 (1995). The proposed 225 HHRs are three times that concentration, located at a single new entertainment facility on the racetrack grounds. The character of the location — a place dedicated to a high concentration of electronic gambling machines — is a casino under the constitutional definition.
II. The HHRs are lotteries, prohibited except for the State Lottery.
Article XV, section 4(1) of the Oregon Constitution prohibits lotteries, except those operated by the State Lottery. A lottery, in the constitutional sense, is a game of chance in which a participant pays consideration for a chance at a prize, with the result determined predominantly by chance rather than skill.
Examining the proposed HHRs, the player has no meaningful information about the historical race, the horses, or the jockeys before placing a wager. The player chooses an amount and presses a button. The machine selects a historical race at random and displays a slot-machine-style animation of the result. The player has no opportunity to exercise meaningful skill. The result is determined predominantly by chance.
The Commission's pari-mutuel authority under ORS chapter 462 — including the 2013-enacted ORS 462.155(1), which authorizes "mutuel wagering at the licensee's race course on horse races previously held" — does not authorize a lottery. To the extent ORS 462.155(1) is read to permit pari-mutuel pool wagering on previously run races where players have access to handicapping information and pool their wagers against each other, that activity remains within the pari-mutuel framework. But the proposed HHRs strip out the pari-mutuel structure and the skill element. They are not authorized pari-mutuel wagering. They are lotteries, and they are not run by the State Lottery, so they are constitutionally prohibited.
CONCLUSION
For the reasons stated above, TMB Racing's proposed operation of 225 HHR machines at the new entertainment facility on the grounds of the Grants Pass Downs race course would violate Article XV, section 4(10) (casinos) and Article XV, section 4(1) (lotteries) of the Oregon Constitution. The Oregon Racing Commission lacks authority to license the proposed operation.
Sincerely,
ELLEN F. ROSENBLUM
Attorney General