PLAYING FAVORITES: CONGRESS'S DENIAL OF EQUAL SOVEREIGNTY TO THE STATES IN THE PROFESSIONAL AND AMATEUR SPORTS PROTECTION ACT
TABLE OF CONTENTS
I. INTRODU CTION ...... 540
II. BACKGROU ND ...... 546 A. THE ENACTMENT OF PASPA ...... 546 B. THE MOUNTING DISSATISFACTION WITH PASPA ...... 548 C. THE MANIFESTATION OF NEW JERSEY'S DISCONTENT .... 549 D. THE SHELBY COUNTY DECISION AND ITS IMPACT ON NCAA V. CHRISTIE ...... 553 E. OPPONENTS OF THE EQUAL SOVEREIGNTY PRINCIPLE ... 556
III. A N ALYSIS ...... 558 A. WHY SHELBY COUNTYAND EQUAL SOVEREIGNTY SUPPORT THE CASE AGAINST PASPA ...... 559 B. A DIRECT COMPARISON OF PASPA AND THE VRA COVERAGE FORMULA ...... 563 C. WHY THE INTEGRITY OF SPORTS IS NOT AT RISK ...... 565 D. REGULATION, NOT PROHIBITION ...... 567 E. PROPOSED ALTERNATIVES TO PASPA ...... 569
IV . C ON CLU SION ...... 571 A. THE CURRENT STATE OF AFFAIRS IN NEW JERSEY ...... 571 B. MOVING FORWARD ...... 573
539 540 GEORGIA LAW REVIEW [Vol. 49:539
I. INTRODUCTION
The equal sovereignty principle posits that our nation is a union of states, each equal in power, dignity, and authority.' Just as the American flag constructs no difference among its fifty stars, the equal sovereignty principle holds that Congress cannot construct 2 any inequalities among the lawmaking powers of the states. The Professional and Amateur Sports Protection Act of 1992 (PASPA), however, exemplifies the very inequalities the equal sovereignty principle seeks to prevent. 3 PASPA is a federal statute that prohibits state-sponsored sports wagering schemes nationwide, 4 but simultaneously creates a narrow exemption that effectively permits Delaware, Montana, Nevada, and Oregon to operate legalized sports wagering activities. 5 PASPA's favoritism of these four grandfathered states is a blatant denial of equal sovereignty that has persisted for over twenty years. By no means are the state legislatures of the other forty-six states equal in power, dignity, and authority when it comes to legalizing sports wagering. The state of New Jersey has led the charge against PASPA and was involved in a highly publicized battle in our nation's courts to overturn the statute.6 New Jersey Governor Chris Christie, with the support of New Jersey State Senator Raymond Lesniak, attempted to defy PASPA by enacting the New Jersey Sports Wagering Law, which endeavored to legalize sports wagering in
1 Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2623 (2013). 2 See id. at 2623-24 (discussing how the fundamental principle of equal sovereignty is a check on the "disparate treatment of States"). Professional and Amateur Sports Protection Act, 28 U.S.C. §§ 3701-3704 (2012). 4 See id. § 3702 (providing, in part, that it shall be unlawful for a governmental entity to authorize sports wagering schemes). 5 The Act provides three different avenues for "grandfathering" in the sports wagering schemes that were already in place in Delaware, Montana, Nevada, and Oregon at the time PASPA was enacted. Id. § 3704(a). PASPA did offer a window of opportunity for any state to come within the grandfathering provisions, see id. § 3704(a)(3), but this saving provision was not only inadequate, it was also misguided. If a state lacked sports wagering schemes at the time, it made little sense to implement such a scheme just to come within PASPA's grandfathering provisions. 6 See discussion infra Part II.c (describing the manifestation of New Jersey's discontent with PASPA). 2015] PLAYING FAVORITES
the New Jersey casinos. 7 However, the National Collegiate Athletic Association (NCAA) and the four major professional sports leagues-the National Basketball Association, National Football League, National Hockey League, and Major League Baseball-quickly objected and brought suit, asserting that PASPA preempted the New Jersey Sports Wagering Law.8 What followed was a lengthy struggle in the courts, in which the NCAA and professional sports leagues prevailed as district court and appellate court judges blocked the New Jersey Sports Wagering Law from going into effect.9 The decision was ultimately appealed to the United States Supreme Court, but on June 23, 2014, the Court denied to grant certiorari to a dispute that was in dire need of its attention. 10 The Supreme Court would have been a fitting end to the PASPA and equal sovereignty controversy considering the Court had just invoked the equal sovereignty principle in its most prominent decision of 2013-Shelby County v. Holder.1 Shelby County was a landmark decision that struck down Section 4 of the Voting Rights Act (VRA). 12 The Shelby County Court held that the coverage formula in Section 4 of the VRA departed from the "fundamental principle of equal sovereignty"'13 in its treatment of the states and that it subjected states to preclearance 14 based on data that had "no logical relation to the present day."'15 Perhaps unconsciously, the Shelby County Court established an analytical framework for eliminating congressional legislation that plays favorites among the states. 16 As this Note will detail, the Shelby County Court struck down Section 4 of the VRA for reasons
I N.J. STAT. ANN. §§ 5:12A-1 to -6 (West 2012), invalidated by NCAA v. Christie, 926 F. Supp. 2d 551 (D.N.J. 2013), invalidated by NCAA v. Christie, 926 F. Supp. 2d 551 (D.N.J. 2013), affd, 730 F.3d 208 (3d Cir. 2013), cert. denied, 134 S. Ct. 2866 (2014). 8 NCAA v. Christie, 926 F. Supp. 2d at 553-54. 9 Id. at 551. 10 Id. 11 133 S. Ct. 2612 (2013). 12 42 U.S.C. § 1973b (2012), invalidatedby Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013). 13 Shelby Cnty., 133 S. Ct. at 2623-24 (emphasis added). 14 The preclearance requirement under the Voting Rights Act requires covered jurisdictions (determined by the coverage formula in Section 4) to obtain federal approval before implementing changes to that jurisdiction's election laws. 42 U.S.C. § 1973c (2012). 15 Shelby Cnty., 133 S. Ct. at 2629. 16 See discussion infra Parts IID, III.A (discussing the applicability of Shelby County to the PASPA controversy). 542 GEORGIA LAW REVIEW [Vol. 49:539 that, if applied to PASPA, could result in no other outcome than invalidating the Act. 17 Just as Section 4 of the VRA subjected certain states to preclearance based on facts and data having "no logical relation to the present day,"18 PASPA similarly precludes forty-six states from entering the sports wagering market simply because those states did not already have sports wagering schemes in place over twenty years ago. 19 The Supreme Court's own reasoning in striking down Section 4 of the VRA would have translated well in a decision to overturn PASPA, but regrettably, 20 the Court declined the opportunity to draw this analogy. Now that the Supreme Court has denied certiorari to Christie v. NCAA, the plight of New Jersey-and its failing casinos-seems more insurmountable than ever. Had PASPA been struck down as a violation of the "fundamental principle of equal sovereignty," the benefits that could have accrued to the states via legalized sports wagering would have been immense.21 Sports wagering is a lucrative market that could pass on earnings to local and state governments via taxation, licensing, and other fees. 22 In the face of budgetary crises and spending cuts, state legislatures that are open to sanctioning sports wagering in their jurisdictions should be permitted to explore the opportunity just as Delaware, Montana, Nevada, and Oregon have been. The denial of certiorari to Christie v. NCAA also preserves the de facto monopoly over the sports wagering market that PASPA so graciously bestowed upon Nevada. In 2012, the American Gaming Association (AGA) reported that legalized sports wagering in Nevada helps to attract more than thirty million visitors to the state each year and provides for thousands of jobs. 23 Revenues reflected a strong showing as well, as the AGA reported that
17 See discussion infra Parts I.D, III.A (discussing the applicability of Shelby County to the PASPA controversy). 18 Shelby Cnty., 133 S. Ct. at 2629 ("Congress did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day."). 19 23 U.S.C. § 3704(a) (2012). 20 Christie v. NCAA, 134 S. Ct. 2866 (2014). 21 See infra text accompanying notes 41-44 (discussing the advantages of legalized sports wagering to the states). 22 See infra text accompanying notes 41-44. 23 Fact Sheets: Sports Wagering, AM. GAMING ASS'N, http://www.americangaming.org/ind ustry-resources/researchlfact-sheets/sports-wagering (last visited Feb. 4, 2015). 2015] PLAYING FAVORITES
Nevada's sports books grossed $170 million in 2012.24 Despite these astronomical sums, the AGA report also indicated that Nevada's legal sports wagering still failed to represent even 1% of all sports wagering nationwide, 25 signifying that illegal sports wagering continues to be the far more prevalent practice. In light of these facts, this Note will advocate that regulation of the sports wagering market should be considered as a promising alternative to the unyielding prohibition of sports wagering that currently plagues forty-six states under PASPA. In many respects, regulation could be more effective than prohibition, as prohibition often merely facilitates the surge of an underground 26 and unlawful market that supports the activity instead. The continued presence of an underground culture has been the ugly truth for sports wagering, because in spite of PASPA, nearly anyone can still contact their local bookie 27 to place a wager on the next big sporting event. 28 Instead of allowing state governments to harness the value of the sports wagering market, PASPA prohibits state governments from having a slice of the sports wager pie. And with forty-six state governments being barred from having a seat at the table, illegal and unregulated sports wagering market participants have been more than willing to take their share. One needs to look no further than to the recent legalization of marijuana sales in Colorado to witness the benefits that states can attain by regulating an irrepressible industry for themselves. 29 And if states can legalize the sale of narcotics to generate revenue,
24 Id. 25 Id. 26 As a historical example, consider the Eighteenth Amendment's prohibition of alcohol in the United States, which can hardly be said to have successfully eliminated the presence of alcohol in the country. Instead, Prohibition had the effect of giving rise to unprecedented levels of organized crime, bootlegging, and a black market for alcohol. See generally Wayne Hall, What are the Policy Lessons of National Alcohol Prohibition in the United States, 1920-1933?, 105 ADDICTION 1164 (2010). 27 "Bookie" is a common but informal term for a bookmaker, the title for a person who takes bets on sporting events. 28 See Chil Woo, Note, All Bets Are Off: Revisiting the Professional and Amateur Sports ProtectionAct (PASPA), 31 CARDOzO ARTS & ENT. L.J. 569, 594 (2013) (noting that "PASPA has done little to stop the proliferation of sports betting" in the United States). 29 See John Ingold, Colorado Voters Approve New Taxes on Recreational Marijuana, DENV. POST (Nov. 5, 2013, 12:34 PM), http://www.denverpost.com/breakingnews/ci_- 244628 39/colorado-voters-approve-new-taxes-recreational-marijuana (noting the projected $67 million in annual state tax revenue from legalized marijuana sales in Colorado). GEORGIA LAW REVIEW [Vol. 49:539 the legalization of wagering on sporting events seems highly benign in comparison. Even high-ranking officials of the professional sports leagues have begun to recognize the futility of banning sports wagering. Adam Silver, the newly appointed Commissioner of the National Basketball Association stated, "It's inevitable that, if all these states are broke, that there will be legalized sports betting in more states than Nevada and [the NBA] will ultimately participate in that."30 Silver's support, along with the aforementioned facts and circumstances, should encourage Congress to accept that sports wagering is inevitable and is here to stay, regardless of PASPA. Accordingly, this Note has two principal goals. The first is to contribute to the growing base of literary support that calls for either a more focused regulation of sports wagering, or a complete and utter end to the prohibitive regime of PASPA.31 The second goal is to challenge this nation's courts to address the equal sovereignty concerns that PASPA so patently disregards. In doing so, a court should apply the same framework that led to the demise of Section 4 of the VRA in Shelby County and likewise bring closure to the legalized sports wagering debate. By no means is this Note meant to serve as an argument that the Shelby County decision was "correct." Whether the Supreme Court was correct in its conclusion that the lamentable history of race relations in the South no longer necessitates federal oversight to prevent the disenfranchisement of minorities is an issue to be
30 Mason Levinson & Scott Soshnick, NBA's Silver Says Legal Sports Gambling in U.S. is Inevitable, BLOOMBERG (Sept. 4,2014, 11:06 AM), http://www.bloomberg.com/news/print20 14-09-04/nba-s-silver-says-legal-sports-gambling-in-u-s-is-inevitable.html. 31 See generally Anthony G. Galasso, Jr., Note, Betting Against the House (and Senate): The Case for Legal, State-Sponsored Sports Wagering in a Post-PASPA World, 99 KY. L.J. 163 (2010) (arguing that state-regulated sports wagering activities should replace the federal regime of PASPA); Jason Goldstein, Note, Take the Money Line: PASPA, Bureaucratic Politics, and the Integrity of the Game, 11 VA. SPORTS & ENT. L.J. 362 (2012) (arguing that PASPA actually undermines itself by allowing any state exemptions at all); Eric Meer, Note, The Professional and Amateur Sports Protection Act (PASPA): A Bad Bet for the States, 2 UNLV GAMING L.J. 281 (2011) (arguing that PASPA should be repealed due to its ineffectiveness and its unfair restrictions of the sovereignty and economic freedom of the states); Michael Levinson, A Sure Bet: Why New Jersey Would Benefit from Legalized Sports Wagering, 13 SPORTS LAW. J. 143 (2006) (highlighting the benefits that would accrue to the state of New Jersey if challenges to PASPA prove to be successful). 2015] PLAYING FAVORITES 545 addressed elsewhere. 32 Rather, this Note stands for the proposition that in the aftermath of the Supreme Court's ruling in Shelby County, federal statutes that violate the principle of equal sovereignty cannot endure. This Note proceeds as follows. Part II will first review the enactment of PASPA and the state of New Jersey's leadership in the case against PASPA. Next, Part II will detail the Shelby County v. Holder decision and how it relates to the controversy over PASPA. Finally, Part II will conclude by discussing New Jersey's legal challenges to PASPA and opponents of the equal sovereignty principle. Part III will examine the Supreme Court's recent invoking of the equal sovereignty principle in Shelby County to demonstrate how PASPA similarly violates this fundamental principle. Accordingly, Part III will argue that under the framework that the Supreme Court laid out in Shelby County, the next court to address PASPA must stand ready to finally grant New Jersey and similarly situated states the relief that previous courts have denied to them. Part III will also demonstrate that granting this relief to New Jersey by invalidating PASPA is fundamentally no different from the same actions the Court took in striking down the coverage formula of the VRA. Part III will conclude by incorporating the equal sovereignty principle into proposed alternatives to PASPA, which embody a new regime of sports wagering regulation as opposed to prohibition. This Note concludes by suggesting that the equal sovereignty principle demands a reevaluation of not only PASPA, but also of similar federal statutes that needlessly discriminate amongst the states. While some laws may very well have a rationale for the disparate treatment of states, PASPA is not one of them, and its approach of "playing favorites" is an unconstitutional practice akin to that of the VRA coverage formula that the Supreme Court struck down in Shelby County.
32 See, e.g., Angelica Rolong, Comment, Access Denied: Why the Supreme Court's Decision in Shelby County v. Holder May Disenfranchise Texas Minority Voters, 46 TEX. TECH. L. REV. 519 (2014) (arguing that the need for oversight remains due to disenfranchisement concerns). 546 GEORGIA LAW REVIEW [Vol. 49:539
II.BACKGROUND
Admittedly, PASPA was not intended merely to hamstring the states; rather, part of its purpose was to restore and secure the public confidence in the integrity of American sports.33 Nonetheless, the Act has engendered much dissatisfaction, most significantly at the state level. As dissatisfaction continues to grow, the recent Shelby County decision concerning the VRA, and its espousal of the equal sovereignty principle, have created an unlikely parallel between the two vastly different spheres of the VRA and PASPA. To better understand the intricacies of the PASPA and equal sovereignty discussion, it is beneficial to explore how the controversy came to fruition. This section, Part II, will accomplish that task. Simultaneously, Part II will set the stage for the analysis and arguments to be made in Part III of this Note.
A. THE ENACTMENT OF PASPA
Sports and gambling are arguably two of America's favorite pastimes. Each provides a welcome distraction and brief escape from the lull of everyday life, and in its place, injects a bit of excitement and (hopefully) enjoyment. Naturally, many have desired to intermingle the two activities, resulting in gambling on sports. Professors Warren Hill and John Clark of Brigham Young University have remarked that the relationship between gambling and sports in the Americas is so commonplace that it even dates back to Amerindian societies from ages ago.34 As for the integration of sports and gambling in more modern times, it was in the late 1980s that a number of states instituted
33 See S. REP. No. 102-248, pt. III, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 3553, 3555 ("[PASPA] serves an important public purpose, to stop the spread of state-sponsored sports gambling and to maintain the integrity of our national pastime."). 34 Warren D. Hill & John E. Clark, Sports, Gambling, and Government: America's First Social Compact?, 103 AM. ANTHROPOLOGIST 331, 337 (2001). In describing an ancient ballgame that the Aztecs played, the authors note that, 'Tangential to the ballgame, but equally important, was the gambling and feasting accompanying each match." Id. Hill and Clark further remark that, "Gambling was an integral component of nearly all tribal and rank societies, and it continues to form an important economic and social lifeline for many native communities." Id. at 339. 20151 PLAYING FAVORITES lotteries that were tied to the outcome of sporting events.3 5 Among 36 these states were Delaware and Oregon. In 1992, members of Congress turned their legislative hand to the surge of sports wagering in an effort to curtail the spread of the sports wagering enterprise, and successfully passed the 37 Professional and Amateur Sports Protection Act (PASPA). PASPA was enacted with the express intent of protecting the integrity of professional and amateur sports. 38 Some members of Congress believed that sports wagering threatened to turn the nature of sports from wholesome entertainment into devices for gambling, such that sports wagering would ultimately undermine the public confidence in the character of sports.39 The legislative history of PASPA described sports gambling as a "national problem," and stated, "the harms it inflicts are felt beyond the borders of those States that sanction it."40 Senator Charles Grassley of Iowa, a member of the Senate Committee on the Judiciary at the time, was an outspoken opponent of PASPA.41 Senator Grassley saw PASPA as a direct infringement upon states' rights. 42 Senator Grassley further argued that the legislation would create a "virtual monopoly" for those individuals and entities engaged in illegal gambling
35 See Goldstein, supra note 31, at 363 (identifying a Delaware "scoreboard" lottery as an example of one state-instituted sports lottery, where a bettor had to predict the winner of multiple games correctly in order to win). 36 Id. Oregon had also devised a lottery scheme that had results determined by the outcome of National Football League games. 37 28 U.S.C. §§ 3701-3704 (2012). 38 S. REP. No. 102-248, at 4 (1991), reprintedin 1992 U.S.C.C.A.N. 3553, 3555. 39 Id. at 5. 40 Id. 41 Id. at 12. 42 See id. (noting Senator Grassley's view that PASPA was "a substantial intrusion into States' rights" that would also "restrict the fundamental right of States to raise revenue to fund critical State programs"). Furthermore, it is noteworthy that even during these pre- PASPA hearings, Senator Grassley recognized that PASPA was also 'legislation [that] blatantly discriminates between the States." Id. In that respect, Senator Grassley's disapproval of PASPA was a direct reflection of the equal sovereignty principle. 548 GEORGIA LAWREVIEW [Vol. 49:539
activities. 43 Despite Senator Grassley's stark opposition, PASPA still passed by an overwhelming margin.44
B. THE MOUNTING DISSATISFACTION WITH PASPA
Although PASPA passed with relative ease, there has been an increasing dissatisfaction in recent years with PASPA and its prohibitive legislation, as evidenced by the litigation that has ensued over the Act.45 Opponents of PASPA generally share a common belief that the legalization (or illegalization) of sports wagering should be a decision left to the states, particularly because the activity could raise substantial revenue for a state.46 It has been projected that legalized sports gambling could generate $1 billion in wagers and as much as $100 million in revenue for a state in just one year.47 As states face budgetary crises and other financial shortcomings, it is understandable why certain states would desire to enter the sports wagering market. 48 In fact, at the time PASPA was being deliberated by Congress, as many as thirteen states were contemplating enacting legislation that would authorize sports wagering in efforts to combat
43 Id. Senator Grassley also cautioned that another monopoly--one serving the interests of the states that had wagering schemes grandfathered under PASPA-would too be formed to the exclusion of the other states. Id. at 13. 44 See Jim Luther, Senate Bans State Sports Gambling, House Agreement Likely with PM- Gambling Vote, ASSOCIATED PRESS (June 3, 1992, 12:45 AM), http://www.apnewsarchive. com/1992/Senate-Bans-State-Sports-Gambling-House-Agreement-Likely-with-PM-Gamblin g-Vote/id-5b17e478289c70dbc0f5ef476b855f8d (noting how the bill easily passed in the Senate on an 88-5 vote). 45 See, e.g., Office of the Comm'r of Baseball v. Markell, 579 F.3d 293, 301 (3d Cir. 2009) (holding that PASPA prohibited Delaware from instituting new sports wagering schemes that were not already being conducted by the state as of October 2, 1991); Interactive Media Entm't & Gaming Ass'n v. Holder, No. 09-1301, 2011 WL 802106, at *4 (holding that the iMEGA gaming association of New Jersey lacked standing to challenge the constitutionality of PASPA). 46 Sophia Pearson & Phil Milford, New Jersey Can't Legalize Sports Betting, U.S. Court Says, BLOOMBERG (Sept. 17, 2013, 4:23 PM), http://www.bloomberg.com/news/2013-09-17/ new-jersey-sports-gambling-law-barred-by-u-s-appeals-court.html. 47 Id. (quoting projections made by William J. Pascrell III, a lobbyist for the legalization of sports gambling in New Jersey). 48 See generally STATE BUDGET CRISIS TASK FORCE, http://www.statebudgetcrisis.org/ wpcms/ (last visited Oct. 3, 2014). Established in 2011, the Task Force is focused on the enormous fiscal challenges confronting state and local governments. The Task Force is particularly examining specific threats to the fiscal sustainability of New Jersey. 20151 PLAYING FAVORITES 549
budgetary concerns. 49 Today, New Jersey, in particular, seeks to capitalize on its established Atlantic City casinos and authorize those establishments to expand into the sports wagering market. 50 In response to PASPA dissenters who argue that legalized sports wagering would benefit state revenues, the Senate Committee on the Judiciary countered that while sports wagering could offer a potential source of revenue, so do other destructive activities that could be regulated or taxed. 51 Despite this counterargument, it is noteworthy to point out that PASPA neither regulates nor taxes sports wagering-it prohibits the activity entirely in all states except Delaware, Montana, Nevada, and 52 Oregon.
C. THE MANIFESTATION OF NEW JERSEYS DISCONTENT
On February 2, 2014, America had its sights set squarely on East Rutherford, New Jersey. East Rutherford had been selected to host Super Bowl XLVIII at MetLife Stadium in the Meadowlands Sports Complex. 53 Already widely recognized as one
49 Steven L. Shur, Police Blockade: How the Revitalization of the Tenth Amendment Could Pave the Way to Legalized Sports Betting in New Jersey, 10 RUTGERS J.L. & PUB. POL'Y 99, 101 (2013); accord, Sen. Bill Bradley, The Professional and Amateur Sports Protection Act-Policy Concerns Behind Senate Bill 474, 2 SETON HALL J. SPORT L. 5, 8 (1992). 50 See discussion infra Part lV.A (describing New Jersey's interest in revitalizing its casinos). 51 See S. REP. NO. 102-248, at 7 (1991), reprinted in 1992 U.S.C.C.A.N. 3553, 3558 ("The committee recognizes that sports gambling offers a potential source of revenue for the States, but so do other destructive activities that could be regulated or taxed.... [Olne of our primary responsibilities is to draw a line between legal and illegal, right and wrong. That line cannot be maintained ...if any profitable activity, however, socially destructive, is seized upon to generate revenue for the States." (internal quotations omitted)). 52 This Note will argue that regulation, rather than blanket prohibition with selective exemptions, would comport with the principle of equal sovereignty. See discussion infra Part III.D. In support of the call for sports wagering regulation, Joe Maloof (former owner of the NBA's Sacramento Kings) said of sports betting, "When it's regulated, it's safer." Darren Heitner, Constitutionality of Sports Betting Prohibition at Issue in NCAA and Professional Leagues' Lawsuit Against New Jersey, FORBES (Aug. 7, 2012, 5:43 PM), http://www.forbes. comlsites/darrenheitner/2012/08/07/constitutionality-of-sports-betting-prohibition-at-issue-in-n caa-and-professional-leagues-lawsuit-against-new-jersey/. 53 Joshua Burd, Super Bowl, WWE Just the Start as Stadium CEO Makes Play for Biggest Events, NJBIZ (Sept. 16, 2013, 3:00 AM), htttp://www.njbiz.com/article/20130916/N JBIZO1/309139987/The-ball's-in-his-court. 550 GEORGIA LAW REVIEW [Vol. 49:539
of the largest sporting events in the world,54 New Jersey's rendition of hosting the Super Bowl did not disappoint, and the game's broadcast went down as the most-watched television event in American television history with 111.5 million viewers. 55 Viewership records were not the only records that were set that day, however. Milestones were also set in the sports wagering industry as Super Bowl fans wagered a record $119.4 million in Nevada casinos. 56 The Nevada Gaming Control Board announced that Nevada sportsbooks-some 2,500 miles away from the actual game in New Jersey-raked in a profit of $19.7 million on the Super Bowl's unprecedented wagering activities. 57 Meanwhile, New Jersey sportsbooks finished at the opposite extreme of the profit scale and made absolutely nothing from an event hosted in their own state. New Jersey sportsbooks performed poorly not due to a lack of interest, but due to the prohibitions imposed by PASPA. Commentators have been calling specifically for New Jersey to enter the sports wagering market for years. In the 2006 article, A Sure Bet: Why New Jersey Would Benefit from Legalized Sports Wagering, Michael Levinson laid out several points as to why he felt New Jersey needed to do 80.58 First, as this Note has already made clear, Levinson remarks that sports wagering would increase revenue for the state directly via licensing fees and casino revenue taxes. 59 Second, Levinson asserts that sports wagering would lead to increases in New Jersey travel and tourism, such that the State would also benefit indirectly from this influx of people and money.60 Third, New Jersey's established casino industry in Atlantic City would offer a unique setting
54 Garry Whannel, Television and the Transformation of Sport, 625 ANNALS AM. ACAD. POL. & Soc. Sci. 205, 209 (2009). 55 Maury Brown, Super Bowl Most-Watched U.S. TV Event of All-Time With 111.5 Million Viewers, FORBES (Feb. 3, 2014, 8:07 PM), http://www.forbes.comlsites/maurybrown/ 2014/02/03/super-bowl.most-watched-tv-event-of-all-time-with- 11 1-5-million-viewers/. 56 Hannah Dreier, Super Bowl Fans Bet Record $119M at Nevada Casinos, ASSOCIATED PRESS (Feb. 3, 2014, 8:05 PM), http://bigstory.ap.org/article/fans-bet-record-119m-super-bo wl-nv-casinos. 57 Id. 58 See Levinson, supra note 31, at 151 (highlighting "four major ways" legalized sports wagering would benefit New Jersey, three of which are relevant to this Note). 59 Id. 6o Id. 2015] PLAYING FAVORITES
distinguishable from other states that permit gambling, keeping New Jersey a competitive player in the industry.61 While Michael Levinson called for action through scholarship, New Jersey State Senator Raymond Lesniak served as a trailblazer in the legislature for the cause of legalizing sports wagering in the state.62 Similar to the points argued by Levinson, Lesniak cited the potential successes of sports wagering, emphasizing that the enterprise could generate as much as $100 million a year in tax revenue for New Jersey.63 In defiance of PASPA and spurred on by Lesniak's efforts, New Jersey set plans into motion to organize its own state-authorized sports wagering scheme. In November 2011, a referendum to legalize sports betting was approved by New Jersey voters by a wide margin.64 And on January 12, 2012, New Jersey Governor Chris Christie signed the New Jersey Sports Wagering Law into (short-lived) effect.65 The law directly authorized New Jersey casinos to operate legalized sports wagering schemes. 66 In spite of PASPA, Governor Christie said of sports gambling:
This whole idea [that] gambling on... games is not going on every Sunday everywhere is foolish. It's foolish. It's going on everywhere[,] except now it's being handled by criminals who are benefitting from it. If it's going [to] happen, let's make the conduct legal[,] and let's make the people who participate in it comply 67 with certain laws.
61 Id. 62 See Rudy Larini, Sen. Raymond Lesniak Challenges Ban on Sports Betting, NJ.cOM (Mar. 23, 2009, 5:20 PM), http://www.nj.com/news/index.ssf/2009/03/senraymond-lesniak-c hallenges.html (chronicling Lesniak's support of legalized sports wagering in New Jersey). 63 Id. 64 Seth McLaughlin, Gov. Chris Christie: New Jersey All in for Legal Sports Betting Push, WASH. TIMES (Aug. 26, 2013, 9:17 AM), http://www.washingtontimes.com/blog/inside-politi cs/2013/aug/26/gov-chris-christie-predicts-new-jersey-will-get-sp/. 65 N.J. STAT. ANN. §§ 5:12A-1 to -6 (West 2012). 66 Id. 67 Joe Asher, Why Chris Christie is Right About Sports Betting, U.S. NEWS & WORLD REP. (June 26, 2012, 9:15 AM), http://www.usnews.com/opinion/articles/2012/06/26/why-chris-ch ristie-is-right-about-sports-betting. 552 GEORGIA LAW REVIEW [Vol. 49:539
In an effort to prevent Governor Christie and New Jersey from establishing any sports wagering scheme via the New Jersey Sports Wagering Law, the National Collegiate Athletic Association (NCAA), along with the four major professional sports leagues- the National Football League (NFL), National Basketball Association (NBA), Major League Baseball (MLB), and National Hockey League (NHL)-quickly filed suit in federal district court.68 The NCAA and the professional sports leagues took the position that New Jersey's proposed sports betting scheme was in direct violation of PASPA, and the coalition sought an injunction from the United States District Court for the District of New Jersey to prevent the implementation of the New Jersey Sports Wagering 9 Law.6 Judge Shipp, writing for the district court, agreed with the NCAA and professional sports leagues. 70 In what was a rather bitter opinion, Judge Shipp not only held that PASPA was a constitutional law, but he also went out of his way to mention that a New Jersey Senator actually favored the law when it was originally passed in Congress. 71 Further, Judge Shipp criticized New Jersey's attempt at trying to implement the New Jersey Sports Wagering Law because New Jersey had not passed similar legislation during the one-year window offered by PASPA that would have allowed a New Jersey sports wagering scheme to be grandfathered in and exempt from the prohibitions of PASPA.72 Having held that New Jersey's
68 NCAA v. Christie, 926 F. Supp. 2d 551 (D.N.J. 2013), affd, 730 F.3d 208 (3d Cir. 2013), cert. denial, 134 S. Ct. 2866 (2014); see 28 U.S.C. § 3703 (2012) (providing that any purported violation of the act can be enjoined by a civil action filed by "a professional sports organization or amateur sports organization whose competitive game is alleged to be the basis of such violation"). 69 NCAA v. Christie, 926 F. Supp. 2d at 553-54. 70 Id. at 579. 71 See id. at 554 (Judge Shipp wrote, "Congress pursuant to an 88-5 vote in the Senate and with the vocal support of one of New Jersey's own Senators, enacted PASPA in 1992 to stop the spread of gambling on professional and amateur sports." (footnote omitted)). 72 Id.; see also 28 U.S.C. § 3704(a)(3) (2012) (stating that PASPA prohibitions shall not apply to a sports wagering scheme conducted exclusively in casinos located in a municipality, but only to the extent that such a scheme was authorized not later than one year after PASPA went into effect). New Jersey failed to pass appropriate legislation within that one-year time period, and was thus subjected to the prohibitions of PASPA. This Note argues that despite the failure of members of the state legislature from nearly twenty-five years ago, the state of New Jersey today should not be prohibited from capitalizing on 2015] PLAYING FAVORITES 553
Sports Wagering Law was pre-empted by PASPA, Judge Shipp dealt an early blow to New Jersey's cause.
D. THE SHELBY COUNTY DECISION AND ITS IMPACT ON NCAA V CHRISTIE
Despite the NCAA v. Christie outcome at the district court level in 2013, a renewed vigor for challenges to PASPA arose later that year, and from a rather unlikely source: a rural Alabama county seeking to change its voting procedures. Shelby County, Alabama was just one of many counties that was subject to the preclearance requirement of the Voting Rights Act of 1965. 73 The preclearance requirement (commonly referred to as "Section 5") mandated that certain states and political subdivisions receive federal approval before implementing any voting qualification or prerequisite to voting, or otherwise change their voting standards and practices.7 4 The Voting Rights Act utilized a "coverage formula" to determine which states and political subdivisions would be subject to the preclearance 75 obligations. Shelby County was one such jurisdiction brought within the scope of preclearance requirements by the coverage formula. 76 In 2010, Shelby County filed suit against the United States Attorney General, Eric Holder, in federal district court. 77 Shelby County sought a declaratory judgment that the preclearance requirement and the coverage formula were unconstitutional. 78 Although Shelby County lost the battle in district court,79 the struggle was
potential tax revenues while states like Nevada effectively monopolize the very same enterprise. See discussion infra Part III.A. 73 42 U.S.C. §§ 1973 to 1973aa-6 (2012). 74 See id. § 1973c(a) (providing that those covered states and political subdivisions must obtain a declaratory judgment that such changes to voting procedures "neither have the purpose nor will have the effect of denying or abridging the right to vote on account of race or color"). 75 Id. § 1973b(b). The coverage formula was found to be unconstitutional by the Supreme Court in Shelby County v. Holder, 133 S. Ct. 2612, 2631 (2013). 76 Shelby Cnty., 133 S. Ct. at 2621. 77 Shelby Cnty. v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011), affid, 679 F.3d 848 (D.C. Cir. 2012), rev'd, 133 S. Ct. 2612 (2103). 78 Id. at 427. 79 See id. at 508 (granting Attorney General Holder's motion for summary judgment). GEORGIA LAW REVIEW [Vol. 49:539 just beginning. On appeal, the United States Court of Appeals for 8 0 the District of Columbia affirmed the district court's decision. However, after years of litigation, the controversy ultimately reached the Supreme Court.8' In a 5-4 decision, the Supreme Court struck down the Voting Rights Act coverage formula, but left the preclearance requirement intact.8 2 Writing for the Court, Chief Justice John Roberts stated:
Not only do States retain sovereignty under the Constitution, there is also a fundamental principle of equal sovereignty among the States. Over a hundred years ago, this Court explained that our Nation was and is a union of States, equal in power, dignity and authority. Indeed, the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.... [T]he fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.8 3
The Shelby County decision was unquestionably a watershed event that sent shockwaves across the nation.8 4 However, few might have anticipated at the time how Chief Justice John Roberts's reliance upon the equal sovereignty principle would also bear on New Jersey's legal challenge of PASPA. New Jersey opportunistically recognized the impact that the equal sovereignty principle of Shelby County could have on its challenge of PASPA, and argued that PASPA also violated this fundamental principle on appeal to the United States Court of Appeals for the Third Circuit.8 5
80 Shelby Cnty. v. Holder, 679 F.3d 848, 853 (D.C. Cir. 2012), rev'd, 133 S. Ct. 2612 (2013). 81 Shelby Cnty., 133 S. Ct. 2612. 82 Id. at 2631. 83 Id. at 2623-24 (emphasis added) (citations omitted) (internal quotation marks omitted). 84 See Adam Liptak, Supreme Court Invalidates Key Part of Voting Rights Act, N.Y. TIMES (June 25, 2013), http://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html?p agewanted=all (noting how the Shelby County decision would have "immediate practical consequences" upon voting laws around the nation). 85 NCAA v. Christie, 730 F.3d 208, 237-39 (3d Cir. 2013), cert. denied, 134 S. Ct. 2866 (2014). 2015] PLAYING FAVORITES 555
Much to the chagrin of Governor Chris Christie and New Jersey, the Third Circuit did not warmly accept the equal sovereignty principle.86 Writing for the majority, Judge Fuentes stated that the Voting Rights Act was "fundamentally different from PASPA'' s and that "there is nothing in Shelby County to indicate that the equal sovereignty principle is meant to apply with the same force outside the context of 'sensitive areas of state and local policymaking.' "88 The Third Circuit reasoned that the regulation of gambling via the Commerce Clause was not of the same nature as the regulation of elections, 9 and, therefore, gambling regulations enacted pursuant to the Commerce Clause are not subjected to any guarantee of uniformity amongst the states. 90 The lone dissenting vote in the Third Circuit's decision did make an argument that PASPA was unconstitutional. 91 However, the dissent explicitly rejected the argument that PASPA violated the equal sovereignty principle. 92 Instead, the dissent expressed the belief that PASPA violated other fundamental aspects of 3 federalism. 9 Despite the ruling by the Third Circuit, the state of New Jersey vowed to push forward with an appeal to the United States
86 Id. 87 Id. at 238. 88 Id. at 239. 89 Id. at 238. 90 See id. ("Indeed, while the guarantee of uniformity in treatment amongst the states cabins some of Congress' powers, no such guarantee limits the Commerce Clause ... Congress' exercises of Commerce Clause authority are aimed at matters of national concern and finding national solutions will necessarily affect states differently; accordingly, the Commerce Clause, unlike other powers of Congress, does not require geographic uniformity." (citations omitted)). 91 Id. at 245 (Vanaskie, J., dissenting in part). 92 Id. at 241. 93 Id. ("PASPA is no ordinary federal statute that directly regulates interstate commerce or activities substantially affecting such commerce. Instead, PASPA prohibits states from authorizing sports gambling and thereby directs how states must treat such activity. Indeed, according to my colleagues, PASPA essentially gives the states the choice of allowing totally [unregulated] betting on sporting events or prohibiting all such gambling. Because this congressional directive violates the principles of federalism ... I respectfully dissent from that part of the majority's opinion that upholds PASPA as a constitutional exercise of congressional authority." (citations omitted)). 556 GEORGIA LAW REVIEW [Vol. 49:539
Supreme Court. 94 Colin Reed, a spokesman for New Jersey Governor Christie, stated:
[Governor] Christie has said all along this issue should be decided by the U.S. Supreme Court, and that's what he hopes will happen next .... The people of New Jersey voted overwhelmingly to bring sports betting to New Jersey, and the Governor agrees with his 95 constituents and will not give up this fight.
E. OPPONENTS OF THE EQUAL SOVEREIGNTY PRINCIPLE
The staunchest opponents of the equal sovereignty principle argue that it does not really exist. This was precisely the position taken by Richard A. Posner, a prominent judge for the United States Court of Appeals for the Seventh Circuit. 96 In response to the Shelby County decision and Chief Justice Roberts's invoking of the equal sovereignty principle, Posner stated, "This is a principle of constitutional law of which I had never heard-for the excellent reason that ... there is no such principle. '97 Posner asserted that the majority in the Shelby County decision had nothing to base its decision on aside from a "tenderness for 'states' rights,'" and that equal sovereignty was invoked as an "indispensable prop of the decision."98 Posner further alleges that Chief Justice Roberts "clever[ly]" laid the groundwork himself for his subsequent Shelby County decision of 2013 by authoring the majority opinion for the case of
94 Reid Wilson, Christie Will Take Sports Gambling Fight to the Supreme Court, WASH. POST (Nov. 20, 2013), http://www.washingtonpost.com/blogs/govbeat/wp/2013/11/20/christie- will-take-sports-gambling-fight-to-supreme-court/. 95 Id. Ironically, despite Reed's assurance that Governor Christie would "not give up this fight," Christie did exactly that when he vetoed a New Jersey bill that again attempted to authorize sports wagering in the state following the Supreme Court's denial of certification to Christie v. NCAA, 134 S. Ct. 2866 (2014). See discussion infra Part IV.A. 96 See Richard A. Posner, The Voting Rights Act Ruling is About the Conservative Imagination, SLATE (June 26, 2013, 12:16 AM), http://www.slate.com/articles/news and-poli tics/the breakfasttable/features/2013/supreme_court 2013/the-supreme court andthevo ting rights-actstriking-downthe-lawisall.html (asserting that the principle of equal sovereignty is an "imaginary doctrine"). 97 Id. 98 Id. Posner goes on to assert that because, in his view, there is no principle of equal sovereignty, the opinion "rests on air." Id. 2015] PLAYING FAVORITES
Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO) in 2009. 99 Such an allegation is not entirely unsubstantiated, as the Shelby County decision is rife with citations and references to the NAMUDNO opinion. 100 Posner criticizes Chief Justice Roberts for what he calls "stealth jurisprudence,"'101 and says that Roberts disguised the novelty and lack of support for the equal sovereignty principle by "extensively" 0 2 quoting his own opinion from NAMUDNO. Yet perhaps the most prominent opponent of the "fundamental principle of equal sovereignty" came right from the bench of the Shelby County decision-Justice Ginsburg. In her dissenting opinion, Justice Ginsburg mused that the equal sovereignty principle "is capable of much mischief."'03 Justice Ginsburg was astute enough to immediately realize that Chief Justice Roberts's opinion would have profound consequences. Like Judge Posner, Justice Ginsburg criticized Chief Justice Roberts and his reliance on the equal sovereignty principle. 104 According to Justice Ginsburg, the equal sovereignty principle is limited to the domain and context of the admission of new states. 105 Justice Ginsburg's dissent emphasized that the equal sovereignty principle did not operate as a barrier to differential
99 Id.; Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009). 100 Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2619-30 (2013) (in all, the Shelby County opinion has approximately forty citations to the NAMUDNO opinion). 101 See Posner, supra note 96 ("[TJhe real key to 'stealth' jurisprudence is patient, crafty incrementalism."); see also Emily Bazelon, John Roberts' Stealthy Plan to Destroy the Voting Rights Act, SLATE (June 25, 2013, 3:40 PM), http://www.slate.com/articles/news-and.politics/t hebreakfasttable/features/2013/supreme court_2013/roberts and-the votingrightsact._th e_chief.justice s_stealthy-plan.todestroy.html (stating that "[Roberts] makes big steps to the right look like small ones. He is the master of conservative stealth ... . 102 Posner, supra note 96. 103 Shelby Cnty., 133 S. Ct. at 2649 (Ginsburg, J., dissenting). 104 It is noteworthy, and frankly puzzling, that while Justice Ginsburg criticizes Chief Justice Roberts's reliance on the equal sovereignty principle in Shelby County, Justice Ginsburg was one of seven Justices who, just four years before, had joined Chief Justice Roberts' majority opinion in NAMUDNO, which was of critical importance to the majority opinion in Shelby County. 557 U.S. 195 (2009). This fact did not go unnoticed by Chief Justice Roberts, who noted in the Shelby County majority opinion that, "[Justice Ginsburg] analyzes the question presented as if our decision in [NAMUDNO] never happened. For example, the dissent refuses to consider the principle of equal sovereignty, despite [NAMUDNO's] emphasis on its significance." Shelby Cnty., 133 S. Ct. at 2630. 105 Shelby Cnty., 133 S. Ct. at 2649 (Ginsburg, J., dissenting). 558 GEORGIA LAW REVIEW [Vol. 49:539 treatment of states outside the context of the admission of new states. 106 Extraordinarily, Justice Ginsburg actually mentioned PASPA in her dissenting opinion as one such law that treated states differently and could thus become vulnerable to future attacks based on the majority's invoking of the equal sovereignty principle. 107 Utilizing PASPA as an example, Justice Ginsburg noted that federal statutes that treat States differently were nothing new.108 To summarize her fear of the complications that might result in the aftermath of the Shelby County decision, Justice Ginsburg rightly questioned: "Do such provisions remain safe given the Court's expansion of equal sovereignty's sway?" 109 In a word, the answer to Justice Ginsburg's question has been a resounding "No." Although it may not have been his intent, Chief Justice Roberts's invocation of equal sovereignty roused a new wave of support for challenges to PASPA.110 Perhaps no group was in need of such support as much as the crop of New Jersey legislators who had been seeking to invalidate and overcome PASPA for years. Justice Ginsburg's worries may have been on the minds of the members of the Court when it chose to deny certification to Christie v NCAA. 111
III. ANALYSIS
Coming on the heels of Shelby County, it was clear to see why New Jersey was relatively optimistic about its chances of having Christie v. NCAA heard by the Supreme Court. An appeal to the Supreme Court would have set the controversy in front of a majority of Justices that had just recently declared the coverage formula of the Voting Rights Act to be unconstitutional due to its disparate treatment of the states.
106 Id. (citing South Carolina v. Katzenbach, 383 U.S. 301, 328-29 (1966)). 107 Id. (citing 28 U.S.C. § 3704 (2012)). 108 Id. ("Federal statutes that treat states disparately are hardly novelties."). 109 Id. 110 See supra notes 84-95 and accompanying text (describing New Jersey's reaction to Shelby County). 1 134 S.Ct. 2866 (2014). 2015] PLAYING FAVORITES 559
Despite such optimism, the Court still declined to resolve the controversy. 112 The Court's decision (or lack thereof) was not only disappointing, but it was also a display of legal inconsistency and self-contradiction. If the equal sovereignty principle is to have any staying power, and if the Court is to abide by its precedent, all signs would point to the Court having a strong incentive to invalidate PASPA and its systematic favoritism. In light of the denial of certiorari, perhaps Judge Posner was correct in his assertion that Chief Justice Roberts was merely using equal sovereignty as an "indispensable prop for the decision" to gut the VRA. 113 Nonetheless, this Part will elaborate on why Shelby County and the equal sovereignty principle do support a finding that PASPA is unconstitutional. This Part will also demonstrate that contrary to PASPA's qualms, the integrity of American sports is not at risk due to sports wagering. Finally, this Part will promote regulation, rather than prohibition, of sports wagering, and discuss favorable alternatives to the current regime of PASPA.
A. WHY SHELBY COUNTY AND EQUAL SOVEREIGNTY SUPPORT THE CASE AGAINST PASPA
Regrettably, the principle of equal sovereignty is not as developed in case law and legal writings as other legal principles. 114 However, just as Chief Justice Roberts recognized that the relative dormancy of a principle115 should not make such principle any less applicable, this Note, too, will ungrudgingly accept the role of reviving and furthering the discussion of the equal sovereignty principle.
112 Id. 113 See Posner, supra note 96 (asserting that the Shelby County decision actually had little to do with equal sovereignty). 114 In contrast, consider for example the popular discussion of federalism, a concept which is addressed in the following articles: Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987); Mitchell F. Crusto, The Supreme Court's "New" Federalism:An Anti- Rights Agenda?, 16 GA. ST. U. L. REV. 517 (2000); Robert A. Schapiro, Not Old or Borrowed: The Truly New Blue Federalism,3 HARv. L. & POL'Y REV. 33 (2009). 115 See Coyle v. Smith, 221 U.S. 559 (1911) (invoking the concept of equal sovereignty for the first time). 560 GEORGIA LAW REVIEW [Vol. 49:539
Equal sovereignty is the principle that each state is "equal in power, dignity, and authority."11 6 The judicial origin of the 1 17 principle lies in the 1911 Supreme Court case of Coyle v. Smith. The heart of the dispute in Coyle is largely inconsequential for purposes of this Note-it centered around the ability of the State of Oklahoma to move its capital from one city to anotherl" 8-but the legal principles that the Court extrapolated from the case are of far-reaching importance. Justice Lurton, who delivered the opinion of the Coyle Court, made several important assertions that form the legal foundation for this Note:
"This Union" was and is a union of States, equal in power, dignity, and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission. 119
Like Justice Ginsburg, 120 those who wish to limit the application of the language in the excerpt above argue that because Justice Lurton wrote in the context of states' admission into the Union, the equal sovereignty principle has no application beyond just that point-the admission of new states into the Union. However, the shortcomings and unreasonableness of this limiting argument are clear. If in fact equal sovereignty was to have no sting past the point of a state gaining admission into the Union,
116 Shelby Cnty. v. Holder, 133 S.Ct. 2612, 2619-30 (2013) (citing Coyle, 221 U.S. at 567). 117Coyle, 221 U.S. 559. 118 Id. at 563. 119 Id. at 567. 120 See Shelby Cnty., 133 S. Ct. at 2649 (Ginsburg, J., dissenting) (Justice Ginsburg also wished to limit the scope of the equal sovereignty principle); see also discussion supra Part II.E. 2015] PLAYING FAVORITES
what would stop Congress from simply imposing any restrictions upon the state just a mere day later? The powers and authority of the states should be uniformly restricted by both the Constitution and Congress. Otherwise, Congress runs afoul of just what Justice Lurton condemned in Coyle v. Smith: the Union might come to be a union of states unequal in power, and would be composed of some states whose powers were restricted only by the Constitution, and other states whose powers had been further restricted by an act of Congress. This is exactly the set of circumstances that PASPA presents. Delaware, Montana, Nevada, and Oregon, retain full authority to legislate sports wagering, while Congress, through the enactment of PASPA, stripped every other state of such authority entirely. Accordingly, the Third Circuit was categorically wrong about the equal sovereignty principle and its scope when the court decided NCAA v. Christie in September 2013.121 The Third Circuit erroneously held that the VRA was "fundamentally different from PASPA"'122 and, similar to Justice Ginsburg, attempted to limit the scope of equal sovereignty, stating that "there [was] nothing in Shelby County to indicate that the equal sovereignty principle is meant to apply with the same force outside the context of 'sensitive areas of state and local policymaking.' "123 On the contrary, the Third Circuit's argument suffers from a major fallacy in that there is nothing in the Shelby County decision to indicate that the equal sovereignty principle is not meant to apply with the same force in other contexts, either. Moreover, it seems highly inefficient to expect the Supreme Court to provide an exhaustive list of all legal contexts in which their opinion would be effective. Such action is not typically the fashion in which the law operates, yet the Third Circuit sought after such explicitness. Furthermore, the Third Circuit cleverly marginalizes the importance of an issue like state-authorized gambling, as one that is evidently unworthy to be characterized as a "sensitive [area] of state and local policymaking."'124 The irony of the Third Circuit's disposition on the issue is that sports wagering would be a
121 NCAA v. Christie, 730 F.3d 208 (3d Cir. 2013), cert. denied, 134 S. Ct. 2866 (2014). 122 Id. at 238. 123 Id. at 239 (quoting Shelby Cnty, 133 S. Ct. at 2624). 124 Id. 562 GEORGIA LAWREVIEW [Vol. 49:539 sensitive area of state and local policymaking if PASPA did not unconstitutionally strip state and local governments of their ability to make such policy. Conceivably, there are circumstances under which it would be understandable, and even appropriate, to treat states differently. States can exhibit fundamental differences because of their geographic location and other diverse needs that may justify special laws. In such scenarios, Congress must be permitted to adopt legislation to meet such naturally diverse needs. Accordingly, this Note does not mean to stand for the proposition that each and every federal statute must treat states entirely alike. On the contrary, this Note argues that where there is no rational basis for the disparate treatment of states, such a law cannot stand. PASPA is just such a law. There is no rational basis for permitting sports gambling in the vastly different states of Delaware, Montana, Nevada, and Oregon, while prohibiting it elsewhere. Congress may claim that PASPA was intended to protect the sanctity of sports, 25 but if sports wagering were truly that imposing of a threat, it would make little sense to allow the enterprise anywhere at all. The only basis for permitting those states to engage in sports wagering is that those states were grandfathered into a statutory exemption. While some would counter that the rationale for the disparate treatment of PASPA is that each state had the opportunity to come within the grandfathering provision (which would have exempted the state from the prohibitions of the statute),126 it is inherently unfair to hold a state hostage to the inaction of its past legislatures. 127
125 See S. REP. No. 102-248, pt. III, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 3553, 3555 ("[PASPA] serves an important public purpose, to stop the spread of state-sponsored sports gambling and to maintain the integrity of our national pastime."). 126 See 28 U.S.C. § 3704 (2012) for the "grandfathering" provision of PASPA. The provisions of § 3704 exempts any state-sponsored wagering scheme that was already in place as of August 31, 1990, and also exempts any casino sports gambling authorized by a state no later than one year after the effective date of PASPA. 127 To further highlight the legal nonsense of binding a state to the decisions of its past legislatures, consider the following generalized hypothetical. A state's legislature is composed primarily of conservative legislators that are vehemently opposed to passing legislation on Issue X. Decades later, the ideals of the state change, and Issue X is viewed differently, particularly by the newly elected liberals in the state legislature. Desiring to pass new legislation to address Issue X, the new composition of the legislature attempts to 2015] PLAYING FAVORITES 563
This is precisely the kind of unfairness that Judge Shipp of the United States District Court for the District of New Jersey sanctioned in his opinion in NCAA v. Christie.12 Judge Shipp conveniently ignored the fact that it was in 2011 that the citizens of New Jersey approved a referendum to legalize sports betting in the state.129 Ultimately, PASPA bars both its present-day citizens, and its present-day state legislature, from passing a law because the state legislature of nearly twenty-five years prior did not. The senselessness of both Judge Shipp's criticism and this proviso of PASPA are readily recognizable. PASPA completely ignores the reality that not only do legislatures change with time, but so do the circumstances that would affect a state's decision to pass certain legislation. Now, in 2014, the State of New Jersey is prohibited from reaping the benefits that would accrue from state-regulated sports wagering simply because the forty-member state Senate and eighty-member General Assembly that held their offices in 1991 failed to do so. Not only does PASPA violate the equal sovereignty of the states, it also effectively gave state legislatures of the early 1990s a veto power and authority that future legislatures would forever lack an ability to overcome. 130
B. A DIRECT COMPARISON OF PASPA AND THE VRA COVERAGE FORMULA
A comparison of the recently invalidated coverage formula of the VRA and PASPA is warranted to shed light on the unconstitutionality of the latter statute. Instrumental to the
pass a bill, only to find that Federal Statute Z, which was passed many years before, preempts them from passing any legislation pertaining to Issue X. Federal Statute Z, like PASPA, puts the new liberal legislature completely at the mercy of their conservative predecessors from generations prior, despite the fact that circumstances and opinions in the state have drastically changed. 128 See NCAA v. Christie, 926 F. Supp. 2d 551, 554 (D.N.J. 2013) ('TASPA also granted New Jersey a one year window to legalize wagering on sports. New Jersey did not exercise that option. Over twenty years later, however, New Jersey amended its state constitution and passed a law authorizing gambling on sports. That law directly conflicts with PASPA."), affld, 730 F.3d 208 (3d Cir. 2013), cert. denied, 134 S. Ct. 2866 (2014). 129 See supra note 64 (describing New Jersey's referendum vote). 130 See 28 U.S.C. § 3704 (2012) (barring state power to authorize sports wagering after August 1, 1990 or after one year following the enactment of PASPA). 564 GEORGIA LAW REVIEW [Vol. 49:539
Shelby County Court's finding that the coverage formula violated the fundamental principle of equal sovereignty was the notion that the coverage formula irrationally categorized the states based on forty-year-old data.131 Remarking that the country had changed since that data was collected to such an extent that the old data was ill-suited for current conditions, the Shelby County Court 132 struck down the VRA coverage formula. PASPA, too, is ill-suited for current conditions. The country and the economic conditions of states have changed since PASPA's enactment in 1992. The fear that sports will be corrupted by state sports wagering schemes is now largely an afterthought. Yet, PASPA's prohibitions remain in effect, attempting to remedy problems that no longer exist, and as a consequence, creating problems that do not have to exist. If a preclearance coverage formula that subjected states to preclearance for discriminatory acts from decades past was struck down for being ill-suited for current conditions, a law that prohibits states from entering a market because of the conditions of twenty years ago should not be able to persist either. An excerpt from Chief Justice Roberts's Shelby County opinion helps to further illuminate the similarities between the VRA coverage formula and PASPA:
And despite the tradition of equal sovereignty, [the VRA coverage formula] applies to only nine States .... While one State waits months or years and expends funds to implement a validly enacted law, its neighbor can typically put the same law into effect 133 immediately, through the normal legislative process.
In comparison to the VRA's now-defunct coverage formula, PASPA disparately hinders forty-six states, not just nine. While one state might have had to wait "months or years" to implement a validly
131 Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2628-29 (2013) ("[T]he coverage formula that Congress reauthorized in 2006 ignores ... developments, keeping the focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs."). 132 Id. at 2630-31 ("Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare § 4(b) unconstitutional."). 133 Id. at 2624. 2015] PLAYING FAVORITES 565
enacted law because of the VRA coverage formula, a state negatively impacted by PASPA is prohibited from ever enacting a state-sponsored sports wagering scheme via its normal legislative process. In essence, the same reasoning that the Shelby County Court employed to strike down the VRA coverage formula applies with equal force to the PASPA statute. Accordingly, PASPA should be struck down.
C. WHY THE INTEGRITY OF SPORTS IS NOT AT RISK
Shelby County calls for Congress to "ensure that the legislation it passes to remedy [a] problem speaks to current conditions."134 But is PASPA's original problem-the fear of corruption, and the fear that sports gambling would undermine the public confidence in the character of sports 135 -still a legitimate concern? Even if PASPA does address a legitimate concern, the question of whether PASPA represents a remedy that speaks to current conditions is a higher burden to meet. It is significant to point out that the atmosphere that spawned PASPA was one rife with fear of sports gambling and its detrimental effects on the public confidence in the character of sports. In 1989 (three years before PASPA was enacted), Pete Rose, one of the most prominent players in Major League Baseball, was banned from the sport for wagering on baseball games that he participated in.136 PASPA supporters rode the wave of negative public sentiment around sports betting at the time and used the Pete Rose scandal to support their arguments. 137 And PASPA was passed just a few short years later in 1992.138
134 Id. at 2631. 135 S. REP. No. 102-248, pt. III, at 5 (1991), reprintedin 1992 U.S.C.C.A.N. 3553, 3555. 136 For a detailed investigation of the actions of Pete Rose that led to his permanent ban from Major League Baseball, see John M. Dowd, Report to the Commissioner (The Dowd Report) (May 9, 1989), http://www.thedowdreport.comlparti.pdf. 137Woo, supra note 28, at 575. 138 This type of knee-jerk, reactionary legislation is not uncommon throughout history. See, for example, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, 115 Stat. 272 (2001), passed in the wake of the September 11, 2001 terrorist attacks, and the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (to be codified in scattered sections of 12 U.S.C.), passed shortly after the onslaught of the American Financial Crisis. Often, legislation that is GEORGIA LAW REVIEW [Vol. 49:539
Now, the biggest concern for the integrity of sports is more likely the use of performing enhancing drugs, not sports wagering. 139 The recurrence of concussions and other sports- related injuries might be a close second. 140 Rarely does an accusation of match-fixing' 4' arise in the context of American sports. And even if match-fixing accusations arose, it is far less likely that such an accusation would be tied to legalized, state- regulated sports wagering, as opposed to unregulated, illegal sports wagering. Accordingly, the argument that PASPA actually serves as a remedy to combat the loss of public confidence in sports is a weak argument at best. That concern was much more prevalent in the early 1990s, and is more of an afterthought in 2015. As the Shelby County decision recognized, things change. States change, budgets change, and constituencies change. The law should be able to adapt to changing times and concerns; instead, PASPA is etched in stone. A state legislature should be equipped to use its lawmaking authority to respond to the needs of the state. Instead, PASPA hampers change, and it hinders progress. In Shelby County, Chief Justice Roberts stated: "Congress-if it is to divide the states-must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past."142 Applying the Chief Justice's words to PASPA, it is clear that the law fails churned out so quickly in response to watershed events is critically flawed. PASPA, coming on the heels of a major gambling scandal, may have been too extreme of a "remedy" for what was only a blip on the radar of sports integrity. Before the Pete Rose incident, the last major indignity concerning sports gambling in America had been the Chicago Black Sox Scandal of the 1919 World Series. Those players, too, were banned from baseball for life for intentionally losing games in the World Series in exchange for money from gamblers. 139See generally Joshua H. Whitman, Note, Winning at All Costs: Using Law & Economics to Determine the ProperRole of Government in Regulating the Use of Performance-Enhancing Drugs in Professional Sports, 2008 U. ILL. L. REV. 459 (noting that the prevalence of performance-enhancing drugs in sports has harmed the public confidence in the integrity of sports). 140 See generally Rodney K. Smith, Head Injuries, Student Welfare, and Saving College Football: A Game Plan for the NCAA, 41 PEPP. L. REV. 267 (2014) (discussing studies showing serious long-term effects of football-related concussions and other injuries). 141 In organized sports, match-fixing occurs as a match is played to a completely or partially predetermined result, violating the rules of the game and often the law. 142 Shelby Cnty. v. Holder, 133 S.Ct. 2612, 2629 (2013). 2015] PLAYING FAVORITES miserably to live up to this standard. PASPA relies on nothing but the past, and unlike the Voting Rights Act, which had to be cyclically extended to remain in effect, PASPA's prohibitions extend into the indefinite future. Furthermore, PASPA's division of the states made little sense in light of the conditions of the 1990s, and it certainly makes no more sense in the present-day conditions of 2015.
D. REGULATION, NOT PROHIBITION
Instead of the comprehensive prohibition of sports wagering that is administered by PASPA, Congress should reform sports wagering law in a manner that is consistent with regulation. This "Regulation, Not Prohibition"-styled argument is no novel idea, and it has been presented in numerous other contexts as well. 143 For example, Ronald J. Rychlak made a similar argument in favor of regulating Internet gambling. 144 Rychlak noted that despite the illegality of Internet gambling, the activity is still highly prevalent across the nation, 145 and that the regulation of Internet gambling would more effectively ensure that unregulated and illegal gambling does not dominate the market. 146 Regulation in the context of sports wagering is equally warranted for three reasons. First, the overall ineffectiveness of PASPA's goal to combat the spread of sports wagering through prohibition cannot be overstated. A 1999 report issued by the National Gaming Impact Study Commission found that Americans illegally wager between $80 billion and $380 billion on sporting events each year. 147 In addition to Congress, the four major sports leagues, who were the staunchest of lobbyists for PASPA, have
143 See, e.g., Sharo Michael Atmeh, Regulation Not Prohibition: The Comparative Case Against the Insurable Interest Doctrine, 32 Nw. J. INT'L L. & BUS. 93 (2011) (arguing, in the context of the insurable interest doctrine, that a regulatory approach rather than prohibition would better serve policy interests); Ronald J. Rychlak, Legal Problems with Online Gambling, 6 ENGAGE: THE JOURNAL OF THE FEDERALIST SOCIETY PRACTICE GROUPS 36 (May 2005) (arguing that regulation of online gambling would create incentives that would drive down illegal and unregulated gambling). 144 Rychlak, supra note 143. 145 Id. at 36. 146 See id. at 38 (arguing for a certification process for online casinos). 147 NAT'L GAMBLING IMPACT STUDY COMM'N, FINAL REPORT 2-14 (1999), available at http:// www.govinfo.library.unt.edu/ngisu/reports/2.pdf. 568 GEORGIA LAW REVIEW [Vol. 49:539 similarly turned a blind eye to the fact that Americans are going to bet on sports, whether the wagering is legal or not.148 Gary Payne, the Managing Director of the International Sports Betting Association, has accepted this inevitability and has actually 149 encouraged governments to step in and regulate the enterprise. Second, regulation also offers protections to those sports fans who wish to participate in the sports wagering market- protections that are nowhere to be found in unregulated, illicit sports wagering schemes. Opponents of legalized sports wagering like to claim that PASPA "protects" people from themselves by sheltering them from the "ills of gambling."'150 However, because these sports fans will likely find a way to make their bets regardless, states could do a service to all by stepping into regulate an industry and collection of sports bettors who would likely embrace regulation if it meant prevention of the more adverse effects of gambling. In an underground sports betting industry, there are no such protections, because there is no regulation. Addiction is a legitimate threat under such circumstances. There is no oversight authority to police sports bookkeepers and ensure that they operate honestly and pay out winnings that are fairly won. Regulation would address these problems, rather than sweep them under the rug. Finally, regulation is a more logically consistent approach to sports wagering than allowing the practice in some states, but not in others. 151 The idea here is that if PASPA's intent was to combat
148 See Joe Asher, Why Chris Christie is Right About Sports Betting, U.S. NEWS & WORLD REP. (June 26, 2012, 9:15 AM), http://www.usnews.com/opinion/articles/2012/06/26/why-chr is-christie-is-right-about-sports-betting ("Americans place bets to enjoy [sports] more, and they do it every day and everywhere, and anyone who thinks otherwise is kidding himself. And, it will never stop."). 149 Gary Payne, Sports Betting Already Happens; Government Might as Well Regulate It, U.S. NEWS & WORLD REP. (June 15, 2012, 11:21 AM), http://www.usnews.com/debate-club/sho uld-sports-betting-be-legal/sports-betting-already-happens-governmentmightasweU-regulat e-it. 150 Id. 1,' See Goldstein, supra note 31, at 373 ("[Tlhe exceptions written into PASPA undermine its effectiveness. What PASPA represents is the lowest common denominator-a solution that was acceptable to all parties but which does not sufficiently achieve its objectives. By allowing a legalized avenue for gambling, PASPA allows the harms of cheating to proliferate."); S. REP. No. 102-248, at 13 (1991), reprinted in 1992 U.S.C.C.A.N. 3553, 3563 ("There is simply no rational basis, as a matter of Federal policy, for allowing sports wagering in three States, while prohibiting it in the other 47 [sic] ...."). 2015] PLAYING FAVORITES 569
the fear that sports wagering could undermine the public confidence in sports, then it hardly makes sense to allow the practice in some states, but not others. This particular intent becomes even more questionable when one considers that despite the fact that the wagering market may be limited to Delaware, Montana, Nevada, and Oregon, that does not stop residents from other states from participating in those markets. 152 Instead, it merely prevents the rest of the states from reaping the benefits that could be garnered by offering those same services to its own residents. Congress indicated through legislative history that sports wagering was deemed a "national problem," the effects of which were harms that extended beyond the borders of those states that sanction sports wagering. If this were truly the case, Congress's intent would be better served by prohibiting sports wagering everywhere, with no exceptions for any state whatsoever. The fact that this is not the case, however, lends more support to the argument that PASPA represents a discriminative regime that irrationally violates the principle of equal sovereignty to the states.
E. PROPOSED ALTERNATIVES TO PASPA
Those who have argued so fervently against PASPA have not come to the table with merely complaints. Many commentators have weighed in with proposed solutions to what is seen as a largely ineffective PASPA regime in the first place. In All Bets Are Off: Revisiting the Professional and Amateur Sports ProtectionAct (PASPA), Chil Woo calls for the elimination of PASPA and a shift to state regulation. 153 When PASPA was first enacted, Congress hoped that limiting the accessibility of sports betting would suppress the desire of future generations to
152 See Roderick D. Wright, Making Sports Betting Legal Protects Bettors from Fraud, Theft, U.S. NEWS & WORLD REP. (June 15, 2012), http://www.usnews.com/debate-club/should-sports- betting-be-legallmaking-sports-betting-legal-protects-bettors-from-fraud-theft ("Sports betting is already legal today. Some people just have to travel farther than others in order to participate in this activity in a legal setting.). 153Woo, supra note 28, at 591-92. 570 GEORGIA LAW REVIEW [Vol. 49:539 participate in the activity. 154 Needless to say, however, Congress's efforts have certainly not repressed the desires of the states to participate in the enterprise. Woo advocates that repealing PASPA and permitting states to self-regulate sports gambling would actually simultaneously serve Congress's original desire to preserve the integrity of sports. 155 This benefit, of course, would also be in addition to the benefits of generating substantial revenue to the states that may choose to authorize sports wagering. Michael Levinson has also called for state regulation of sports wagering. 156 Levinson has even worn the hat of a legislator and proposed what types of provisions should be incorporated into the state sports wagering law.157 Among these provisions is the proposal that any sports wagering legislation should limit the activity to licensed establishments.5 8 Levinson further asserts that sports wagering legislation should stipulate what types of wagers are permitted, such that the state issuing the legislation can promote uniformity and allow for easier policing and regulation. 5 9 As an alternative to state-driven regulation, Congress could opt to take reign over sports wagering regulation reigns from a federal-controlled standpoint. This route would be appealing as well, because regulation is the doorway to every government's favorite power: taxation. Regardless of whether regulation would be state-driven or federally controlled, an undeniable benefit of regulation would be diverting cash flows away from the pockets of criminal bookies and an illicit underground gambling culture.
154 See, e.g., id. at 575 (noting that the legislative history of PASPA reflected a concern that children would engage in gambling if exposed to such conduct). 155 See id. at 593 ("[A] state regulated system of sports betting will improve monitoring and enforcement controls on suspicious and illegal betting activity, thus helping to preserve the integrity of sports by early detection and investigation of potential fraud."). 156 See Levinson, supra note 31, at 159-63 (discussing the general limits and restrictions on sports wagering that should apply if legalized). 157 Id. 158 Id. at 159. 159 See id. at 160 (noting that the state could also choose to limit permissible wagers to only those sports that have little or no chance of being influenced by bribery and corruption). 2015] PLAYING FAVORITES
While either of the two routes would be favored over the current state of circumstances, this Note recommends that Congress should wipe their hands clean of the sports wagering issue, and leave the enterprise to the states to regulate for themselves. States are better suited to establish standards and regulations that provide for adequate oversight and policing efforts than Congress. States can engage in a licensing process for those who desire to operate a sports wagering scheme, and in doing so, the states can vet and assess all potential entrants into the market. In 2012, California State Senator Roderick D. Wright pushed for a piece of legislation that would have implemented many of these aforementioned qualities into a sports wagering framework.160 Despite Senator Wright's efforts, the California State Assembly's Committee on Appropriations shelved California Senate Bill 1390.161 Opponents of the bill included the California Police Chiefs Association, which contended that the bill would exacerbate problems of gambling addiction and criminal activity.162 Although the bill was shelved, even the legislative processes of California that led to its demise reflect how states are more than capable of deciding for themselves whether sports wagering should have any place within their borders. Equal sovereignty demands it. But alas, even if Senator Wright's California bill had been successful, its implementation would have been dependent on PASPA being struck down.
IV. CONCLUSION
A. THE CURRENT STATE OF AFFAIRS IN NEW JERSEY
The Supreme Court's refusal to reconcile PASPA with the equal sovereignty principle was certainly a discouraging decision for New Jersey and other states seeking to enter the sports wagering market. However, New Jersey refused to give in at a moment where it seemed as if all hope was lost.
160 S.B. 1390, 2012 Leg., Reg. Sess. (Ca. 2012). 161 Jim Sanders, Bill to Allow California Sports Betting Shelved by Assembly Panel, SACRAMENTO BEE (Aug. 16, 2012, 2:06 PM), http://blogs.sacbee.comcapitolalertlatest2012/0 8fbill-to-allow-california-sports-betting-shelved-by-assembly-panel.html. 162 Id. 572 GEORGIA LAWREVIEW [Vol. 49:539
In what appears to be a loophole in the PASPA framework, New Jersey has encouraged its casinos to engage in sports wagering as a free enterprise, rather than doing so pursuant to a state government-sponsored scheme. 163 This legal maneuver seems to be available based on the exact wording of § 3702 of the PASPA statute, which provides:
It shall be unlawful for - (1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or (2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity,... [a] wagering scheme based, directly or indirectly... on one or more competitive games in which amateur or professional athletes participate ....164
Exploiting this loophole serves one of New Jersey's two main interests in bringing sports wagering to the state. That interest is to revitalize its struggling casino industry in Atlantic City. The other interest, to maintain the ability to tax sports wagering schemes implemented by a state-sponsored scheme, may be out of reach for now. However, increased profits to Atlantic City casinos via sports wagers can still result in taxable revenue to the state. Whether Atlantic City casinos will be willing to potentially run afoul of the Department of Justice, which would be none too happy to see New Jersey making a fool of its authority, remains to be seen. However, even the free enterprise maneuver has run into difficulties, considering that as of August 2014, Governor Chris Christie is no longer supporting New Jersey's sports wagering
163 See Christopher Baxter, Sports Betting at N.J. Casinos, Racetracks will not be Prosecuted, Acting AG Says, NJ.coM (Sept. 8, 2014, 1:18 PM), http://www.nj.com/politics/index.ssf/2014/09/ nj_casinosracetracks will not beheld liablefor sportsbetting.html ('The legal maneuver would allow betting without specific, state-sanctioned regulations, licensing or authorization, which are banned under the federal Professional and Amateur Sports Protection Act and a federal court injunction issued against the state."). 164 28 U.S.C. § 3702 (2012) (emphasis added). 2015] PLAYING FAVORITES 573 cause. On August 8, 2014, a little over a month after the Supreme Court denied certification to NCAA v. Christie, Governor Christie vetoed the New Jersey bill that aimed to make the free enterprise maneuver a possibility. 16 5 Governor Christie greatly distanced himself from the unfaltering advocacy that he had exhibited for the sports wagering cause just months before.'6 6 Christie stated, "While I do not agree with the Circuit Court's decision, I do believe that the rule of law is sacrosanct, binding on all Americans. That duty adheres with special solemnity to those elected officials privileged to swear and oath to uphold the laws in our nation.'1 67 In response to Christie's veto, State Senator Raymond Lesniak stated that Christie had "stuck a dagger in the heart of Atlantic City."1 68 Nonetheless, the bill has such significant support in the New Jersey legislature that many believe the veto will easily be overridden, resulting in yet another lifeline to the New Jersey effort. 169
B. MOVING FORWARD
A massive illegal sports betting market, run by criminals rather than legitimate establishments and persons, is currently thriving in the United States. Having grabbed the ear of Congress in the early 1990s, the four major sports leagues of America and the NCAA have convinced many that sports wagering is corrupt and harmful to society, and as a result, the majority of states have suffered while criminals-and Nevada-have prospered. Rather than allow states to regulate sports wagering, Congress and others
165 Matt Friedman, Christie Vetoes Bill That Would Have Allowed Sports Betting at N.J. Casinos, Race Tracks, NJ.COM (Aug. 8, 2014, 5:48 PM), http:lwww.nj.com/politicslindex.ssf/ 2014/08/christie_vetoesbillthatwouldhaveallowedsports-bettingatnj_casinosrace_t racks.html. 166 In 2012, Christie even voiced his support for sports wagering by stating, "[I]fsomeone wants to stop us, then let them try to stop us." Id. 167 Id. 168 Id. 169See Paul Mulshine, September Showdown is Set to Override Christie's Sports-Betting Veto, NJ.coM (Aug. 22, 2014, 4:59 PM), http://www.nj.com/opinion/index.ssf/2014/08/septem ber-showdown-setto_overridechris_christies-sports-betting-veto mulshine.html (noting that the original bill that Christie vetoed had passed both houses of the legislature overwhelmingly, and that if New Jersey's legislators "stuck to their prior votes, the override would pass"). 574 GEORGIA LAW REVIEW [Vol. 49:539
have chosen instead to turn a blind eye to the undeniable: sports betting is here, and here to stay. The Professional and Amateur Sports Protection Act of 1992 was the result of knee-jerk, reactionary legislation. Consequently, Congress, spurred on by the four major sports leagues and the NCAA, prescribed a fatal dose of prohibition when only some legislative cough syrup was needed to remedy the malady. Furthermore, Congress refused to defer to the authority and discretion of the states to decide for themselves whether sports betting would be permitted within their boundaries. In 2013, Chief Justice John Roberts opened the door for a flood of new challenges to PASPA. The analysis of the VRA's coverage formula by the Court in Shelby County seemed to indicate that PASPA, too, would fail to withstand an encounter with the Roberts Court. Unfortunately, that encounter never materialized. The disparate geographic coverage of PASPA serves no purpose; the residents of Delaware, Montana, Nevada, and Oregon are no less susceptible to the ills of gambling than the residents of other states. Again, the only basis PASPA has to prevent New Jersey from entering the sports betting market is that New Jersey did not choose to enter the market in 1991. Such an inflexible requirement is unfair to the states and their respective citizens. It is safe to say that each state in the country has undergone significant changes since 1991; yet, PASPA nonetheless prevents those states from progressing and changing the status quo. Although the Supreme Court declined to hear the Christie v. NCAA case, Congress still retains its ability to reassess the PASPA statute on its own volition. In the face of state budgetary crises and cutbacks, Congress should consider the economic benefits of repealing the Professional and Amateur Sports Protection Act for the good of the nation. Otherwise, Congress's gamble of playing favorites will continue to deny access to a substantial source of revenue for states that are in dire need.
Justin Willis McKithen