Sports betting opponents’ final plea to Florida Supreme Court: Don’t let DeSantis usurp voters’ power

The Florida Supreme Court could rule on sports betting any day now, experts say, though it’s also possible the case will stretch on for years.

West Flagler Associates, the group of betting companies that brought the lawsuit, filed its final brief Tuesday, replying to arguments made by Gov. Ron DeSantis’ office and making its last plea for the court to take up the case.

At stake, West Flagler argues, are the rights of Florida’s voters, over 70% of whom approved a constitutional amendment in 2018, known as Amendment 3, that gives voters the sole power to “authorize casino gambling” in the state, through another constitutional amendment. Critics often have accused DeSantis and the state of circumventing constitutional amendments and have cited the agreement between the Seminole tribe and the state as an example.

West Flagler asserts that it seeks to preserve voters’ power, and that DeSantis and the state violated that power through a gaming compact that legalizes online sports betting, now widely available in Florida, as long as the servers are on Seminole Tribe lands.

“The only necessary parties before the Court are, therefore, the Legislature, which enacted the Implementing Law, the Governor, who signed the Compact and Implementing Law, and the People (through Petitioners), whose constitutional power was usurped,” attorneys write in the reply brief.

A Florida Supreme Court ruling might touch not only on gambling law, but the agency of Florida’s voters through the constitutional amendments they support.

“Certainly (the decision) could have precedential force as to people’s right of initiative,” Daniel Wallach, a sports betting attorney based in Hallandale Beach, told the South Florida Sun Sentinel on Friday.

Ruling against DeSantis’ office “could fortify potential challengers to legislative or executive actions that are arguably in derogation of the state constitution,” he added. “It’s an important case not just for gambling, but could have a lasting impact for other kinds of constitutional challenges.”

Yet democracy isn’t the main issue, some say, because the amendment doesn’t give voters much agency in the first place.

“I don’t think Amendment 3 largely does anything with respect to voter power,” said Quinn Yeargain, an assistant law professor at Widener University Commonwealth Law School focusing on state constitutional law and a former Orlando resident. “I don’t think that under any circumstances, the procedure for voter approval under Amendment 3 will ever be able to be successfully utilized.”

‘Line-cutting’: Will the court take up the case?

The court has four options, Wallach said, two of which avoid deciding immediately. It could grant West Flagler’s request, deny it, transfer the case to a circuit court, or hear oral arguments first.

He thinks denying and transferring are the most likely.

Judicial procedure is perhaps as important as the case itself in determining the Florida Supreme Court’s next steps. If the court does take up the case, it will ignore its own precedent of allowing lower courts to weigh in, according to Bob Jarvis, a law professor at Nova Southeastern University who teaches a class on gambling law.

“I think it’s important for readers to understand that there is this important procedural question which is, ‘should this case be allowed to cut the line and go directly to the Florida Supreme Court?'” Jarvis said. “And it is my opinion, and it has always been my opinion, that the Florida Supreme Court, which has made it very, very clear that it hates line-cutting, is going to send this case down to Leon County Circuit Court.”

The court’s decision hinges on how timely justices perceive the issue to be, such as if they think the Seminoles need an immediate answer, or if there’s a chance, as West Flagler argues, that DeSantis’ office violated Floridians’ constitutional rights. But legal experts are skeptical.

“I’m just not struck that it’s super urgent,” said Yeargain, adding that West Flagler would need to demonstrate some kind of “discrete harm” by allowing sports betting to continue. Already, both the Florida Supreme Court and the U.S Supreme Court have ruled against suspending sports betting while cases continue.

The filings also focus heavily on technical questions, such as the meaning of the word “and.” The court may choose not to weigh in until lower courts answer some of those questions.

“The courts are always eager to avoid answering questions if they can do it,” Yeargain said.

Legal experts also have long pointed out that the court is stacked with DeSantis appointees who have a history of ruling against similar cases seeking a “writ of quo warranto” to rein in the powers of an elected official.

DeSantis has appointed five of the seven justices; in over a dozen cases, the court has never issued a writ of quo warranto, Wallach said.

“If this weren’t the Florida Supreme Court, if it was any other supreme court, where the majority of judges aren’t appointed by the governor, I think this would have a better than 50-50 chance of prevailing,” he said.

What did voters mean, and what do they want?

In their filings, both sides devote ample time to arguing over whether sports betting is casino gambling to begin with and what voters believed at the time. If sports betting is not considered “casino gambling” or is not “typically found in casinos,” attorneys for DeSantis argue, then the amendment no longer applies.

“The voters who ratified Article X, Section 30 of the state constitution understood that Section 30 applied only to ‘casino gambling,'” attorneys for DeSantis wrote in a filing.

In its reply brief, West Flagler points to oral arguments before the Florida Supreme Court back in 2018, when both supporters and opponents of Amendment 3 used sports betting as an example of casino gaming. The group argues that voters themselves believed sports betting would be included when approving the amendment.

“In interpreting ‘casino gambling’ to include sports betting, this Court can rely on the proponents’ and opponents’ understanding, as well as the voters’ knowledge at ratification,” West Flagler’s attorneys conclude in the reply brief.

“Unearthing those concessions” might “help carry the day,” Wallach said, “at least on the primary issue of whether Amendment 3 encompasses sports wagering.”

Back in 2018, sports betting may have been on forefront of lawyers’ minds because the U.S. Supreme Court had just decided to allow states to legalize it, Jarvis said. However, the average voter may not have followed those cases or contemplated it as part of the amendment.

If the court doesn’t reach an immediate decision on whether sports betting is casino gambling, it may look to the question of federal law. The amendment makes an exception for sports betting agreements between tribes and states under the Indian Regulatory Gaming Act.

In its reply, West Flagler argues that IGRA does not apply because it doesn’t cover sports betting off tribal lands, adding that voters would never have interpreted it that way.

“A voter reading the ballot summary, title or text of Amendment 3 never would have imagined that the Legislature could approve statewide mobile gambling outside tribal lands under the guise of an IGRA compact,” West Flagler writes.

The same issue sits before the U.S. Supreme Court. While federal cases in other states have supported the idea that betting takes place where the bettor is located, Wallach said, Florida state court has the right to interpret it differently.

Then there’s the question: How much does the intent of the voters matter to the Supreme Court anyway?

In ambiguous cases such as this one, Yeargain said, it’s best to avoid attributing too much to voter intent, though it does seem that “voters wanted to assert greater control over gambling,” so reading the definition of casino gambling “narrowly” and the exception for tribal lands “broadly” by allowing online sports betting doesn’t make sense in this context.

“The narrow exception that is articulated could swallow the rule,” Yeargain said.

Yeargain thinks the legal interpretation appears to more clearly support the state, even if it’s not what voters thought they were voting for, while the real injustice was allowing the amendment onto the ballot in the first place.

The amendment “persuaded voters it was doing something it didn’t do,” Yeargain said, “something that should’ve been struck from the ballot because it was misleading.”

West Flagler isn’t predominantly concerned with voters’ interests either, Jarvis said. The group suffers because the current gambling agreement leaves its betting companies out, essentially giving the Seminoles a monopoly on sports betting.

“Their argument really comes down to, ‘we don’t think that’s fair,'” Jarvis said.

What’s next?

If the court does take up the case, Floridians can expect to wait a bit because it will likely want to hear oral arguments due to the significance of the issue at hand, Wallach said.

“Because this is an issue that goes right to the core of the people’s right to initiative, this is an issue of constitutional dimensions impacting gambling on statewide basis, I would suspect the Florida court would want to have oral arguments,” he said.

Without oral arguments, the court could rule in the first quarter of 2024. Even with oral arguments, Wallach anticipates the case wrapping up in 2024.

If the court decides not to take up the case, it could be years before a decision is reached as the lawsuit makes its way back through the appeal system, Jarvis said.

There is a small, “infinitesimal” chance the court could decide it’s important enough to rule on the entire thing now, likely because it doesn’t want the issue “hanging over the Seminoles.” But Jarvis compared it to an asteroid hitting the Earth.

“Once in a while, it happens,” he said.

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