Taking Issue with the Ballot Initiative
On Wednesday, Judge D.P. Marshall Jr. made headlines by denying a request for a temporary restraining order and a preliminary injunction from Cherokee Nation Entertainment (CNE), a subsidiary of the Cherokee Nation of Oklahoma. This legal battle centers around Issue 2, a ballot initiative that has sparked considerable debate in Arkansas regarding the authority of the Arkansas Racing Commission to issue casino licenses based on local referendums.
Issue 2 is a pivotal measure that asks voters to decide whether the Arkansas Racing Commission should be empowered to grant casino licenses only in counties where local referendums indicate support for gaming facilities. This initiative comes on the heels of a 2018 vote in which a majority of Arkansas’ 75 counties approved the establishment of casinos in Pope, Crittenden, Garland, and Jefferson counties. Notably, Pope County was among the 11 counties that voted against the issuance of casino licenses, setting the stage for the current legal dispute.
The funding for Issue 2 has raised eyebrows, as it was backed by the Choctaw Nation, a rival tribe to the Cherokees, which operates a series of casinos in Oklahoma. This financial backing has led to speculation about the motivations behind the initiative, particularly in a state where tribal gaming has become a contentious issue.
Attorney Elizabeth Robben Murray, representing the Local Voters in Charge, articulated a strong defense of the initiative. She emphasized that CNE, much like a liquor-license holder, voluntarily applied for and accepted the casino license, fully aware of the associated risks. “The ARC Casino Gaming Rules expressly warn that the license is ‘a revocable privilege’ and ‘no holder … shall be deemed to have acquired any vested rights therein or thereunder,’” she stated. This assertion underscores the precarious nature of casino licenses in Arkansas and suggests that CNE has no legal grounds to contest the initiative.
The Plaintiff’s Argument
Despite Judge Marshall’s ruling, the legal saga is far from over. CNE is poised to continue its fight, arguing that the removal of its casino license, awarded by the Arkansas Racing Commission in June, constitutes an “unconstitutional violation” of its rights. This claim raises significant questions about the balance of power between state authorities and tribal entities in the realm of gaming.
The legal challenge is not new; Cherokee Nation Businesses and a registered voter from Pope County, Jennifer McGill, previously attempted to contest the initiative before the election. The current defendants in the case include Governor Sarah Huckabee Sanders and the seven members of the Arkansas Racing Commission, highlighting the high stakes involved in this dispute.
In a recent court filing, Senior Assistant Attorney General Ryan Hale argued against CNE’s requests for a temporary restraining order and preliminary injunction, citing the 11th Amendment to the U.S. Constitution. This amendment limits the ability of federal courts to hear certain lawsuits against states, adding another layer of complexity to the case. Hale’s brief suggests that CNE’s legal strategy may face significant hurdles as it navigates the intricacies of constitutional law.
Judge Marshall’s decision to rule against CNE’s motions was made without prejudice, meaning the case can be revisited in the future. He also instructed CNE to provide a schedule for expedited discovery and to submit evidence supporting its claims for injunctive relief by November 15. While a trial date has yet to be established, the timeline indicates that this legal battle will continue to unfold in the coming weeks.
As the situation develops, the implications of Issue 2 extend beyond the immediate legal ramifications. The outcome of this case could set a precedent for how casino licenses are issued and regulated in Arkansas, potentially reshaping the landscape of tribal gaming in the state. With both sides preparing for a protracted legal fight, the stakes are high for all involved, and the eyes of the gaming industry are keenly focused on the developments in this contentious issue.