Ballot stuff

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The letter immediately below was sent to the four Commissioners of the New York State Board of Elections on the letterhead of Coalition Against Gambling in New York and received at 40 N. Pearl on 28 October.  It requests them all to resign.

Below the text of the letter its signers review in detail the webcast of the meeting in which this lamentable chapter of New York election history emerged.  We also review the legislative history of the 1966 amendment that gave us “Lottery for education.”  It does not show the rewriting for which  “Proposal 1”  is now infamous.

New York State  Board of Elections
40 North Pearl Street, Suite 5, Albany, NY 12207 2729                  October   24 2013

James A. Walsh,  Co-Chairman
Douglas A. Kellner,  Co-Chairman
Evelyn J. Aquila,  Commissioner
Gregory P. Peterson,  Commissioner

re: “Proposal One”  2013 ballot language and position

Dear Commissioners:

The New York State Board of Elections is “charged with the preservation of citizen confidence in the democratic process and enhancement in voter participation in elections.”  By crafting  pro-amendment  language for Prop. One, the Board has betrayed our  trust.  You should resign.

An initial draft of Prop One (NY Times, 10/17)  read “The purpose of the proposed amendment to sec. 9 of article 1 of the constitution is to allow the Legislature to authorize and regulate up to seven casinos.”  The Board added to this “for the legislated purposes of promoting job growth, increasing aid to schools, and permitting local governments to lower property taxes through revenues generated. Shall the amendment be approved?”

The Board did not make public the changes until the challenge period had elapsed. The Siena Poll of September 30 showed a huge effect of the added language, misrepresented by the Commissioners (p. 25) as  “minor revisions.”  Where “yes” and “no” had been tied when the earlier language was read, a gap of thirteen percentage points – landslide proportions – opened when respondents were read the adorned language.    In addition, the Board put the amendment into position one when it stood sixth by custom. The Board has made a mockery of a fair election.

The Coalition Against Gambling in New York  and  No Saugerties Casino call upon you, the Commissioners,  to resign forthwith.

Sincerely
s/  Arnold Lieber, MD                                                    s/ Stephen Q. Shafer MD, MPH, MA
Member, Exec. Comm. No Saugerties Casino             Chairperson, CAGNY

 

Background: As many citizens know, amending the NYS  Constitution without  a Constitutional Convention  requires two steps  by the Legislature, sometimes called first and second passage. “Second passage” sends the proposed amendment to  referendum at a General Election.  The resolutions passed for a second time on 21 June 2013  (A 8068 same as  S 5898)  were to  amend the existing prohibitions on  gambling to make an exception for

“CASINO GAMBLING AT NO MORE THAN SEVEN FACILITIES AS AUTHORIZED  AND  PRESCRIBED BY THE LEGISLATURE.”   [caps original].

Following the rules, this resolution was sent to the Attorney General for final approval and for the AG’s recommendation on how the ballot should be worded.  According to the New York Times, the first draft for the ballot said “The purpose of the proposed amendment to section 9 of article 1 of the constitution is to allow the  Legislature to authorize and regulate up to seven casinos.  If approved, the amendment would permit commercial casino gambling in New York state.”  This version went from the AG to the Board of Elections on or around July 19.  The BOE made revisions during  the next week before their scheduled meeting of  29  July.  At that meeting they certified a rewording done in the previous week, after referring to  it as one of   two “minor changes”  among the six amendments whose language was to be certified.

When the certified language finally hit public awareness on  Sept 11, it was clear that the “minor change”  in “proposal 1”   was anything but minor.  A storm of   protest arose over what reporter Michael Gormley on that day called  “the rosy language,”  which ran thus:

“The proposed amendment to section 9 of article 1 of the Constitution would allow the legislature to authorize up to seven casinos in New York State for the legislated purposes of promoting job growth, increasing aid to schools and permitting local governments to lower property taxes through revenues generated.  Shall the amendment be approved?

The effect of the rewording was dramatically shown in a Siena Poll of September 30.  Respondents split 46-46 in reaction to the following version of the  amendment proposal  developed  by the poll itself:  “Do you support or oppose passing an amendment to the state constitution to allow non-Indian, Las Vegas style casinos to be built in New York?”  To the elaborated language above, however,  55% of respondents said yes and only 42% no.  A landslide-size gap of thirteen points had opened.

The BOE also elevated the measure from last of six proposals (where it belonged by custom, having been the last to gain.  This is a disgrace to New York State.

Using the webcast and transcription of the meeting we reviewed the crucial short interval in which the language for all of the six proposals is voted upon as certified and the order on the ballot set.

Position  on the ballot:  Co-Chairman  Kellner  is heard to say  (around 1:38:50 of the webcast provided by the BOE for the July 29 meeting)  “Because of the relatively high profile and substantial interest in the press on the casino gaming issue we decided it is in the best interest to list that first  …  to reduce potential voter confusion.”

Our comment:  Whose best interest?  Moving the casino amendment to the top line does not combat voter “confusion,”  but does give  special status.   Once the custom (last in second passage,  last on ballot) has been broken, or random ordering is not used, number  1 is obviously Somebody’s favorite.   This position is set to interact with catchy campaign slogans associating “yes”  with 1.  For (say) two measures the position effect is negligible; with six, considerable.

Wording   There is said to be precedent for the BOE to add to or change what the Attorney General’s office recommended to them,  though we have not seen examples.  Note well: the CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY   (S. Pr 906, A. Pr 1606. Jan 17 and 18 1966) that underlay the amendment passed that November to establish Lottery for education reads the same as the ballot word for word.  The ballot wording is therefore much longer than even the 54 words of “rosy language,”   but voters did see the same words the Legislature had voted on.

In the webcast  section where the Commissioners  discuss the revisions (ca. 1:37:30),  Mr. Brehm (Co-Exec Director)  is reciting changes in two of the amendments from the language sent by the AG.  Only two amendments coming from the AG  were rewritten by the BOE.  One editing was to remove the redundant words “even more” from the proposed amendment about veterans’ benefits.  Mr Brehm  then  says, “with regard to the gaming, which is number 1  … to .. um  when Co-Chair Kellner cuts in to say  “review the legislative purposes that were included in the underlying statute.”

We as citizens, not lawyers, now ask “What was the underlying statute?”

The second passage resolutions of June 2013  (same for  both  chambers)  were to  amend the prohibition on  gambling in article I sec 9 to allow  “CASINO GAMBLING AT NO MORE THAN SEVEN FACILITIES AS AUTHORIZED  AND  PRESCRIBED BY THE LEGISLATURE.”    To us, this is the “underlying statute.”  Its legislative purposes are clear. Technically  this is a resolution, not a bill.

The legislators knew voters would not like an amendment so open-ended as the fifteen words above; so, they developed the 220 pages of the  Upstate New York Gaming and Economic Development Act of 2013 (UNYGEDA) as a road map to sketch fiscal projections and write regulations on a practice that when the act was passed was, and still is, illegal in New York.  Sad to say, this act is written in mud, not stone.  However tightly UNYGEDA has been grafted onto the proposed amendment, it is not what the electorate is supposed to be voting on, which is the proposal to legalize seven casinos.

The phrases added by BOE  “to review the legislative purposes that were included in the underlying statute”  do  reflect  the aims of the amendment’s promoters.  These might by a stretch be called “legislative purposes.”  They are campaign promises, however, not statements of fact.   It is a fact that a successful transportation bond issue will pay for materials and labor to improve highways and bridges.  It is fond hope, not fact,  that seven casinos will “promote job growth.”   It  is a fact that by the provisions of UNYGEDA revenue to government from casinos can be designated for “aid to schools” or for  “permitting local governments to lower property taxes.”  These apparent benefits, however, are not provably greater than the hidden social costs due to  adding casinos to the NYS economy instead of sincerely trying to reduce problem gambling in New York State.  We believe they are much less.  These apparent benefits are deceptive.  As one commentator said, “it’s like balancing your checkbook by entering only deposits.”

We understand the complexity of all these casino amendment issues, understand that it would hardly be possible to put detailed pros and cons for even one amendment (still less, six) onto a ballot without daunting voters.  All the more reason, then, to stick with terse, neutral language.

Moving the amendment up the ladder and slanting  its language  interact strongly “in the best interest” not of a fair voting process but of those who desperately want the amendment passed.

The Board of Elections has failed signally in its duty to the People of New York State.  The four commissioners  should resign immediately.

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photo captioned “vote” is from flickr creative commons

The request  in the letter is endorsed by the Boards of Coalition Against Gambling in New York and No Saugerties Casino.  Permission to quote from this post or to reproduce in whole or part is hereby granted as long as the permalink above is cited

New York State is Addicted

Despair

New York State is addicted to revenues from gambling.  This is not just a figure of speech. Below are hallmarks obvious in the state’s behavior over the 47 years since its Constitution was amended to allow a lottery with periodic drawings and paper tickets.  In November another amendment, to permit “up to seven” casinos, will be on the ballot statewide. Intervention is needed.

  • craving
  • upping the dose
  • seeking short-term rewards e.g. “aid to education” without an uptick in personal or business tax rates.
  • discounting adverse effects  Problem gambling in New York drains from society  more than 3.5 billion dollars a year in quantifiable socio-economic costs like judicial administration, lowered productivity, and abused dollars.  This amount excludes suicide, proceeds of crime and psychosocial harm to the dozen or so individuals who are betrayed by every problem gambler in “the chase.”  No state official ever acknowledges the size of this problem.  The econometrics are in Gambling in America (Cambridge University Press, 2004) by Earl L. Grinols, Distinguished Professor of Economics at Baylor.
  • denying long term liabilities (e.g. spectre of fiscal flop with saturation, need for bailout à la NJ or DE, future inroads by internet gambling)
  • scoffing at the diagnosis “There’s nothing wrong with me!”
  • dismissing prospects of recovery  
  • cheating (e.g. allowing as if they are video lottery terminals (VLTs) hybrid electronic table games with outcomes not under the control of Lottery’s central processing unit.  See New York Daily News May 5 and 12, 2013. Another more recent example: rewriting the text of the amendment   to be on November ballot to make it an advertisement for a yes vote and boosting the proposal from the sixth slot where it belongs by date of passage into the “number one” slot.
  • deceiving e.g. pretending  increased regional cash throughput is “economic development”  Another example: saying that government regulation of commercial casinos will prevent the creation and exploitation of problem gamblers. In fact, government wants tough regulation to protect itself from being cheated, not to end problem gambling.   Half of casino revenues flow from the 4% of adults who are problem gamblers.  The casino owners don’t want to stop mining this mother lode, nor would tax-collectors like a 50% drop in revenues to the state. Even the most credulous person will realize that “regulation” in this situation is  programmed to fall far short of stated intentions.
  • scheming and manipulating  item, conceding money due to the state, localities and private citizens to deflect Indian opposition to potential competitors; item, promising a piece of commercial casino revenues not to “education” nor to “local property tax relief” but to horse-breeding and tracks if legalized casinos “cannibalize” racino gambling
  • conniving “If a law is in your way, get rid of it.”
  • dealing in a desperate and dishonorable way to keep “the connection.”  The Upstate NY Gaming Economic Development Act of 2013 authorized additional video gaming establishments under Lottery if the casino amendment does not pass.  A spokesperson for the Governor (see Wall Street Journal June 15) offered ball-park figures: three to four “upstate” facilities with up to 5000 machines each.  This would more than double the state’s current battery.  The same bill enacted, regardless of the amendment’s outcome, additional VLT facilities “downstate.” Curious, for a bill denoted “Upstate.”

New York State is not addicted in the sense that its whole government is preoccupied each day with raising revenue from gambling. Nor is a large proportion of total revenue to the state from that source.  It’s less than 3%. That the state is a high-functioning addict still able to multi-task does not excuse its being addicted nor give assurance that its dependence will not get worse.

New York is not alone.  Many states and Canadian provinces are addicted too.  All show typical denial. Nowhere but in NY, however, do voters statewide have the chance in 2013 to call the addiction just that and say “Let’s start to ‘Recover New York.’”

Most people, even if they have never been in one, know what an intervention is, how it can launch recovery before catastrophe has struck.   New York needs an intervention now. Rejecting the proposed amendment at the General Election is a good start. Sad to say that’s all it can be.  The intervenors have no leverage here. The addict has a big stash locked in the garage and no intention of handing it over or entering treatment.

I personally regret NYS has the “casino referendum” because opponents may be outspent >1000 to 1 as is happening in Massachusetts and the public bamboozled.  Now that the Governor and his legislature have brought us the referendum, though, we can and must use it to confront our government, challenge it to lead recovery from gambling addiction the way it leads on recovery from natural disaster,

Photo image “Despair” from flickr creative commons 3503412461_815c19b748

Opinions in this piece are those of the writer, Stephen Shafer,  and do not necessarily reflect the views of any or all other members of CAGNY.  Permission to reproduce in whole or part is hereby granted as long as the permalink above is cited.

Crapping Out in New York: For Education

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By Dave Colavito.  first published in Huffington Post July 12 

Whether NY voters consent to amend the state constitution to expand gambling is something that will likely be decided in November. What’s certain is “Gambling for Education” will remain a trusted brand for Governor Cuomo and his handlers. The problem is the subtext: Gambling is Good for the Kids — unlike adequate nutrition, adolescent problem gambling won’t help build strong bodies or healthy minds.

Most adults appreciate the invaluable service carnival barking provides in the service of Albany’s gambling policies — how else do you keep convincing losers they’ll win, so long as they keep losing? But when it comes to educating the kids, voters know the importance of leading by example. So before heading to the polls in November, it’s worth considering whether more of the Albany example is really in their best interest.

State-sponsored gambling is already here, as are other permitted activities. But a proposal for the state-sponsored expansion of say, cigarette smoking or sugary junk food in schools would be roundly rejected and hailed as a public policy victory. Why — not everyone eating such junk food becomes diabetic, and its marketing surely contributes to the state’s economy and creates jobs? The answer assuredly has to do with education. And though Albany is a partner in educating children, it’s a deeply conflicted partner by virtue of its promotion of gambling.

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“Poison pill” in Upstate Gaming Act of 2013

5329333422_f79c211100_m alien            Surrender ! Resistance is futile !

The upcoming referendum on whether to amend the NYS constitution and allow “up to seven casinos as prescribed by the legislature” has been subverted by  Governor Cuomo, turned into  an  ultimatum  to all who oppose the  amendment for its expansion of  predatory gambling.  ” Heads I win, tails you lose.”    New Yorkers, even those who favor the amendment,  should be  horrified.  This behavior  belongs to a despot or a cartoon  alien invading the planet, not to a Governor who proclaimed he wants  the people to say yes or no to amending the constitution.  What  happened ?  

Simply put, if the amendment fails, Lottery gets carte blanche to expand instead.   The “Upstate New York Gaming Economic Development Act of 2013,”  passed on 21 June as S 5883 (same as  A 8101), provides in section 32 a. (3)  that if the amendment does not pass referendum, Lottery is authorized to operate  an unspecified number of new Video Lottery Terminal (VLT)   facilities of unspecified size,  not necessarily at race tracks.  The VLT facilities provided for in this  hedge plan would go into the three “regions” of “zone 2” that are not excluded by compacts with Indians, viz. Catskills + Hudson Valley,   Eastern Southern Tier and  Capital Region.  An article originating with AP in Albany  http://online.wsj.com/article/APbabc9a4fefdc488cb8a30eb9ec800e12.html    cites possible numbers (three or four upstate) and possible sizes (up to five thousand VLTs each).  These numbers are not in the bill, but were softly confirmed by a spokesperson for the Governor on June 19. 

Thus a successful  fight against  the amendment would be punished by the imposition of a gambling system probably no better  for New York’s people than  “up to seven” casinos.  [There is no reason to think Lottery would stop at four new slot barns; that was a trial balloon on one day in June.]

The hedge plan unveiled in June was probably  mostly  a “poison pill” for two readily identifiable groups to which  the amendment could bring damaging competition.  One was the Seneca Nation, which as of June 12 was  not yet  “in good standing.”  The next day, however,  the Nation  moved into that status. http://www.indianz.com/IndianGaming/2013/026500.asp    Now assured of no new competition in their territory,  they would cease to  threaten  the amendment.  The  pill was no longer toxic to them.  The other group, the  New York Gaming Association (the racino lobby)   had come out on June 10th  against the Governor’s Program Bill, as it was then called.  [To see that press release, which on the web site is undated,  go to their web site and click on press releases .  http://www.newyorkgaming.org/Home.aspx    ]  NYGA  voiced fears that new casinos would take away 85% of their action.  They  were quickly placated with changes ensuring that the horse industry would not take a loss in  the large (> $200 million last year) income stream it counts  on from racino  VLTs.   Any new casinos  would have to pitch in to keep parity.  Not long before June 21, the NYGA reversed its stand in a second press release [also on their web site, undated].

The “poison pill,”  in Section 32 was made by developments around mid-June less baneful  to the two richest groups that want predatory gambling in NYS but not competition.  It still  had   had potency as of voting day, June 21.  It could  deter opposition to the  amendment  that might spring up if any of the May-June agreements with Indian casino operators fell through before Election Day.  On out-of-state casino interests, however, it would probably have little effect.    Though expected by many to work [under false flags]  against the amendment, these groups  would would not see section 32 as virulent to them.   They  would surely prefer that if NYS must  boost its  predatory gambling it go with slot barns, not  full-scale casinos. 

The constituency to which the poison pill is most bitter and potentially paralyzing is opponents of predatory gambling.  We are perhaps collateral casualties of the Governor’s tactics  to neutralize, or actually turn,  rich profit-seeking opponents of the amendment . Or (this may be  folie de grandeur)  the Governor  sees us as a threat to his objective, a threat that needs to be squashed.   We don’t need to know.   In either case,  the Governor and those who craft his bills  have done  their utmost to make the referendum meaningless.      Instead of a plebiscite on whether to amend the constitution it has become a double bind: casinos or  VLT barns.    See the New York Post http://www.nypost.com/p/news/opinion/editorials/gambling_man_FRWmSBGiGVE5KXK1w58IcM

The  VLT  barn  hedge plan has been latent since September  2001, when the legislature  at the urging of Gov. Pataki  authorized   thousands of  VLTs  at racetracks as  “racinos.”  In the words of Gov. Cuomo (May 9 press conference)  “The racinos were created to get around,  frankly, the existing state law and they were in many ways created as a loophole, but for all intents and purposes they are a casino.”     Why VLT proliferation was not Gov. Cuomo’s plan  A  for gambling expansion is for speculation.  Let’s suppose that in early 2012 he truly  believed  (unlike us) that casinos bring “economic development”  that VLT barns would not.  Let’s credit him with a desire to play by the rules and respect the Constitution,  as long as he looks like winning. This wish foundered in June 2013 when polls showed his approval rating going down and no clear margin of victory for a future amendment.   Time for the ace in the hole.  

Coalition Against Gambling in New York will oppose the amendment even if the hedge plan in section 32  forces  an odious alternative to casinos.  If the amendment fails as it deserves to, we and other groups allied against predatory gambling will seek legislation  to amend  section 32 and defang it.

The opinions expressed herein are those of the writer, Stephen Q. Shafer and do not necessarily reflect opinions of all members of CAGNY.  Permission  is granted to reproduce this text in whole or part as long as the permalink attached is cited.

Buying Silence

    

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     NYS  Legislature should not approve the  pact between NYS and the Oneidas  

     The provisional deal (ref.  6, below) of 16 May between the State and the Oneida Nation of Indians, if not literally vote-buying, is arrant influence-peddling. Dead set on adding   commercial casinos to his legacy for New York, Gov. Cuomo has sold  out the rights of several parties for the contracted silence of the Nation about  his proposed “casino amendment.”  Those  non-ONI parties, historically discordant,  differ on why they object to the pact.   They agree it is a bad deal for everyone except the ONI.  Casino promoters elsewhere could also benefit; so might some residents of the proposed ten-county exclusivity area who sensibly  don’t want another casino close to home but myopically  don’t mind it somewhere else.  

     The county governments of Oneida and Madison Counties have acceded to the pact, under duress.  (ref. 2)  The NYS Legislature, the Attorney General  and the Federal Government must also approve it.  There are good grounds why they should not.

     Opposition to all or some terms of the pact has come from the Cayuga Nation (ref. 5); from traditional Iroquois besides Cayugas (ref. 1); from the Conservative Party of NY; from Republican Assembly Member Claudia Tenney (ref. 3) ; and from the towns of Vernon and Verona.  (ref. 5)  For most of these entities, however,   the implications for expanding predatory gambling are not  the crux of their opposition.   

     To the Coalition Against Gambling in New York (CAGNY), a statewide organization, it is obvious that the  pact was crafted  just to prevent  the ONI  from using its money to fight the “casino amendment,”  some outcomes of which could bring  competition to Turning Stone.  CAGNY totally opposes the proposed amendment.  We thus oppose the ONI pact,  which if ratified at all levels would make passage of the amendment more likely than  if the  ONI were against it.  Our dismay with the pact, however,  is  less that it could smooth the path to more casinos in the state than that it gives further evidence our  Governor will stop at nothing  to gain his ends by any means.    

     To paraphrase  Cornelius Murray,  Esq. , attorney for Verona and Vernon, as he spoke  in a press conference on June 4, “This is not about gambling.  It’s about Constitutional law.”  Mr. Murray’s concerns about the law are detailed in his letter to the NYS Attorney General (link in ref. 5).    This is not a “win-win.”  It’s a “win big-lose big.”

     Read further  for brief summary of the proposed terms of the pact is below and for the listed references.

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