Attorney General's Opinion on Constitutionality of Video Lottery Terminals

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The opinion of Kentucky Attorney General Jack Conway on whether s. 226 of the Kentucky Constitution prohibits video "slot machines" operated by the Kentucky Lottery Commision was released today.  The opinion (co-signed by my law school classmate Jennifer Black Hans, class of '95) is very well-reasoned and is a text-book perfect model for analyzing both a section of the state constitution (the 1891 section 226) and an amendment to the document (current 226(1) adopted in 1992). 

The opinion concludes that such VLT's are not prohibited by the constitution, a result that is not surprising to anyone who has actually read the text of the prohibition and understands the full sweep of Kentucky history.  The proper context of the prohibition against lotteries is not as a reaction against gambling, but more as a reaction to special privileges.  As such, it should be classed with sections 59 and 60, which ban special and local legislation, because the right to run a lottery was one of the many privileges the pre-1891 legislature doled out to charities and other institutions.  (As a librarian, I'm ashamed to admit that the notoriously corrupt lotteries operated on behalf of libraries probably had a lot to to with the adoption of section 226*).  The delegates to the 1890-91 constitutional convention pointedly refused to bar horse racing (and probably occupied their nights in Frankfort saloons playing cards, perhaps the game of black-jack popularized by Kentucky's favorite son Henry Clay).

A Word version of the opinion (numbered 09-004) can be found on the AG's website; I'm attaching a PDF here.

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*See esp., Lotteries and Libraries: A History of the Louisville Free Public Library (1944) for a discussion of the trouble engendered by the 1871 library lottery charter.  Such charters granted broad powers to trustees who often ended up with much of the proceeds.