New Jersey Sports Betting Update
After New Jersey's Supreme Court victory in May 2018, any state that wishes can legalize sports betting.
At the same time various state lawmakers are considering sports betting legislation, Congress is too. Senators Chuck Schumer, D-N.Y., and now-retired Orrin Hatch, R-Utah, co-introduced comprehensive sports betting legislation at the end of 2018. On Sept. 27, 2018 the House Judiciary Committee held a formal hearing on the topic.
The dual track of proposals -- state and federal -- have increased in frequency since the start of 2017.
- Webinar- 2019 Sports Betting in New Jersey Update. Closed Format/Skill Level: Webinar. Location: Online. Date: October 3, 2019. Time: 12:00 PM - 1:40 PM ET.
- An exception for New Jersey. However, it was not until 2012 that New Jersey’s legislature enacted a law to provide licenses to casinos and racetracks for sports-wagering pools, and in 2014 passed a law to decriminalize sports betting. On the heels of New Jersey’s legislation, the National Collegiate Athletic.
New Jersey sportsbooks raked in a record-breaking $445 million handle during September as the advent of a new NFL season gave their industry a significant boost. It was their busiest month since sports wagering was legalized in June 2018, and it suggests that Garden State operators will enjoy a strong winter trading period.
To measure the change in the landscape, we ranked all 50 states and the District of Columbia in terms of how likely it is for each jurisdiction to offer full-scale legal sports betting. A brief synopsis for the active states is included, with updates to follow.
Last updated on November 3, 2020.
Already there
1. Nevada
No longer the only state to permit a wide variety of legal sports betting, Nevada is a mature market that has existed for decades. Given its long history in successfully offering regulated sports wagering, many states might look to Nevada for best practices.
Type of wagering permitted: In-person and mobile
Notable prohibitions: None
Number of casinos (as of Dec. 31, 2019): 223
Population: 3,034,392 (2,246,259 21+)
2. Delaware
On June 5, 2018, Delaware moved to offer single-game betting on a number of different sports at three casinos in the state. Expanded sports wagering options could take place at additional locations or online. Delaware's authorization of what Gov. John Carney described as 'a full-scale sports gaming operation' happened less than a month after the Supreme Court ruled that the federal law restricting single-game betting to Nevada was unconstitutional.
Type of wagering permitted: In-person
Notable prohibitions: No betting on games involving in-state college teams
Number of casinos (as of Dec. 31, 2019): 3
Population: 967,171 (726,161 21+)
3. New Jersey
On June 11, 2018, Gov. Phil Murphy signed the sports betting bill that had passed the previous week. A William Hill sportsbook at Monmouth Park took the first bets on Thursday, June 14 at 10:30 a.m. ET. Gov. Murphy was the first customer in line. The Borgata in Atlantic City booked sports bets 30 minutes later. Other sportsbooks in New Jersey opened soon thereafter. For example, FanDuel's first sportsbook at the Meadowlands opened its doors on July 14.
Type of wagering permitted: In-person and mobile
Notable prohibitions: No betting on games involving in-state college teams and collegiate events held within the state
Number of casinos (as of Dec. 31, 2019): 9
Population: 8,908,520 (6,634,683 21+)
4. Mississippi
Two casinos owned by MGM Resorts booked their first sports bets in Mississippi on Aug. 1, 2018. Mississippi enacted a new law in 2017 that allowed for sports betting pending a favorable decision by the Supreme Court. In June 2018, the Mississippi Gaming Commission adopted implementing regulations that require all betting to take place in person, with mobile wagering to be considered later.
Type of wagering permitted: In-person
Notable prohibitions: None
Number of casinos (as of Dec. 31, 2019): 29
Population: 2,986,530 (2,153,795 21+)
5. West Virginia
On Aug. 30, 2018, West Virginia became the fifth state to offer legal and regulated sports betting when the Hollywood Casino -- a sportsbook owned by Penn National -- opened its doors. The move came six months after the West Virginia legislature passed a new bill with the West Virginia Lottery Commission serving as the chief regulator.
Type of wagering permitted: In-person and mobile
Notable prohibitions: None
Number of casinos (as of Dec. 31, 2019): 5
Population: 1,805,832 (1,375,788 21+)
6. New Mexico
On Oct. 16, 2018, the Santa Ana Star Casino & Hotel booked its first sports bet in partnership with Nevada-based USBookmaking. Although New Mexico has not passed any new sports betting legislation since the Supreme Court's decision, the move by the Santa Ana Star Casino & Hotel was made via a gaming compact with the state. According to Nedra Darling, spokeswoman at the Department of the Interior's Office of Indian Affairs -- the federal agency in Washington, DC that oversees tribal gaming compacts -- the New Mexico compacts permit 'any or all forms of Class III Gaming,' a category in the federal regulations that specifically includes '[a]ny sports betting and pari-mutuel wagering.'
Type of wagering permitted: In-person
Notable prohibitions: No betting on games involving in-state college teams
Number of casinos (as of Dec. 31, 2019): 32
Population: 2,095,428 (1,529,540 21+)
7. Pennsylvania
The Hollywood Casino at Penn National Race Course booked the first legal sports bets in Pennsylvania in mid-November 2018. The move came just over a year after Gov. Tom Wolf signed a new sports betting bill as part of a broad legislation push that included online poker and DFS. The October 2017 bill became effective after the Supreme Court's May 2018 ruling upending the federal ban on single-game betting outside of Nevada.
Type of wagering permitted: In-person and mobile
Notable prohibitions: None
Number of casinos (as of Dec. 31, 2019): 12
Population: 12,807,060 (9,645,705 21+)
8. Rhode Island
The Twin River Casino in Lincoln opened its doors for legal sports betting on Nov. 26, 2018. The move came five months after Gov. Gina Raimondo signed the state budget, which included language allowing sports betting. Only two locations would be allowed to offer sports betting under the law, with the state's lottery providing regulatory oversight. In early 2019, the law was tweaked to provide for mobile betting.
Type of wagering permitted: In-person and mobile
Notable prohibitions: No betting on games involving in-state college teams
Number of casinos (as of Dec. 31, 2019): 2
Population: 1,057,315 (800,838 21+)
9. Arkansas
On July 1, 2019, the Oaklawn Racing Casino Resort booked the first legal sports bets in Arkansas. Two other retail locations opened sportsbooks in the subsequent months. Sports betting is regulated by the Arkansas Racing Commission.
Type of wagering permitted: In-person
Notable prohibitions: No betting on games involving in-state college teams
Number of casinos (as of Dec. 31, 2019): 3
Population: 3,013,825 (2,191,256 21+)
10. New York
On July 16, 2019, the first legal sports bets were placed in New York. J. Gary Pretlow -- a New York lawmaker and chair of the state's racing and wagering committee -- was among the first to place a wager at the Rivers Casino in Schenectady. The opening of a legal sportsbook came six years after New York passed a law to allow sports betting at four on-site locations, all in upstate New York. After lying dormant for years, the law was revived after the Supreme Court ruling in 2018 and the issuance of regulations earlier this year. The current law does not allow for mobile wagering.
Type of wagering permitted: In-person
Notable prohibitions: No betting on games involving in-state college teams
Number of casinos (as of Dec. 31, 2019): 28
Population: 19,542,209 (14,724,807 21+)
11. Iowa
Legal sports betting arrived in Iowa on Aug. 15, with multiple operators all opening their doors to customers on the first day. The move came three months after Iowa Governor Kim Reynolds signed into a law a comprehensive bill to legalize sports betting in the Hawkeye State. Operators must pay a $45,000 licensing fee and there is a 6.75 percent tax on revenue. The new law permits mobile wagering. Betting on college sports is permitted, but certain kinds of in-game prop bets involving college games are banned. The new law bestows the Iowa Racing and Gaming Commission with authority to regulate sports betting.
Type of wagering permitted: In-person and mobile
Notable prohibitions: No prop betting on in-state college athletics
Number of casinos (as of Dec. 31, 2019): 23
Population: 3,156,145 (2,286,374 21+)
12. Oregon
Legal sports betting returned to Oregon on Aug. 27 after a long hiatus, with the first bets booked on-site at the Chinook Winds Casino Resort in Lincoln City. Oregon is one of a small number of states that already had a law on the books permitting some forms of sports betting, so the resumption of wagering did not require the legislature to pass any new law or have the governor amend an existing tribal-state compact. In mid-October, mobile sports betting arrived in Oregon too, with the state-run lottery overseeing the launch of a new website and app.
Type of wagering permitted: In-person and mobile
Notable prohibitions: None at the Chinook Winds Casino Resort, but sportsbook operated by the Oregon Lottery does not permit betting on games involving in-state colleges
Number of casinos (as of Dec. 31, 2019): 10
Population: 4,190,713 (3,167,912 21+)
13. Indiana
Legal sports betting opened up at a number of locations in Indiana on Sept. 1. The Indiana Gaming Commission oversees all sports betting regulations and has issued licenses to operators across the state. Wagering on both college and pro sports is permitted, but betting on esports and high school sports is banned. Indiana's new law allows for both mobile and in-person wagering. Regulations permit sports leagues or colleges to request 'to utilize a geofence to prohibit wagers at the location of a particular sporting event.'
Type of wagering permitted: In-person and mobile
Notable prohibitions: No prop betting on in-state college athletics
Number of casinos (as of Dec. 31, 2019): 14
Population: 6,691,878 (4,842,337 21+)
14. New Hampshire
Governor Chris Sununo placed the ceremonial first legal sports wager -- on the New England Patriots -- in New Hampshire on Dec. 30, 2019. The state's lottery is in charge of regulatory of regulatory oversight. Both retail and mobile sports betting will be permitted on a wide variety of sports, although no betting on New Hampshire's in-state colleges is allowed.
Type of wagering permitted: Mobile
Notable prohibitions: No betting on in-state colleges
Number of casinos (as of Dec. 31, 2019): 0
Population: 1,356,458 (1,042,882 21+)
15. Illinois
Legal sports betting arrived in Illinois on March 9, 2020. The move came less than a year after the Illinois legislature passed a broad gaming bill that allowed for both online and in-person sports betting. With Governor J.B. Pritzker's signature, the new law also provided for betting on-location at venues such as Wrigley Field. Operators and certain data providers are required to obtain a license under the new law.
Type of wagering permitted: In-person and mobile
Notable prohibitions: No wagering on minor leagues or Illinois college teams
Number of casinos (as of Dec. 31, 2019): 10
Population: 12,741,080 (9,391,158 21+)
16. Michigan
Legal sports betting in Michigan commenced on March 11, 2020, with two Detroit-area casinos launching on the same day. The move came less than three months after Governor Gretchen Whitmer signed the 'Lawful Sports Betting Act' into law. The new law provides for wagering on a wide variety of sports, including college contests.
Type of wagering permitted: In-person and mobile
Notable prohibitions: None
Number of casinos (as of Dec. 31, 2019): 27
Population: 9.995,915 (7,428,72721+)
17. Montana
Legal sports betting arrived in Montana in March 2020. The move came after Governor Steve Bullock formally signed into law a 28-page bill that brought sports wagering to Big Sky country via the state's lottery. Governor Bullock cited the Montana Lottery's 'proven track record of responsibility and integrity' when signing the bill.
Type of wagering permitted: In-person
Notable prohibitions: None
Number of casinos (as of Dec. 31, 2019): 13
Population: 1,062,305 (793,151 21+)
18. Colorado
May 1, 2020 marked the launch of legal sports betting in Colorado, with multiple operators allowing residents to open accounts online and place wagers. The move came less than six months after Colorado voters -- by a narrow margin -- approved a ballot measure that would provide 'for the regulation of sports betting through licensed casinos.' Both mobile and retail sports betting are permitted. Tax revenue from sports betting will help fund various state water projects.
Type of wagering permitted: In-person and mobile
Notable prohibitions: None
Number of casinos (as of Dec. 31, 2019): 35
Population: 5,695,564 (4,210,663.00 21+)
19. Washington, D.C.
In June 2020, the D.C. Lottery launched its 'GameBetDC' platform allowing consumers 'to wager while in the District on major sports worldwide' via computer or mobile device. Sports betting in nation's capital followed the passage of the Sports Wagering Lottery Amendment Act of 2018 and a Congressional review period during which time Congress did not formally object. The Office of Lottery and Gaming provides regulatory oversight of all sports wagering in D.C.
Type of wagering permitted: In-person and mobile
Notable prohibitions:No betting on games involving colleges located in D.C.
Number of casinos (as of Dec. 31, 2019):None
Population: 705,749
20. Tennessee
Regulated sports wagering -- all online -- launched on November 1, 2020 in Tennessee with four licensed operators offering a wide variety of options. The 'Tennessee Sports Gaming Act' permits statewide mobile sports betting without any brick-and-mortar anchor. As such, there are no in-person retail sports betting locations in the state. Subject to an exception, Tennessee's new law requires all licensed operators to 'exclusively use official league data for purposes of live betting.'
Type of wagering permitted: Mobile only
Notable prohibitions:None
Number of casinos (as of Dec. 31, 2019):None
Population: 6,829,174
On-deck circle
21. North Carolina
On July 26, 2019, Governor Roy Cooper signed into a law a bill to 'allow sports and horse race wagering on tribal lands,' with such betting designated as a 'Class III' gaming activity under the state compact. The new law permits betting on both college and professional sports, but all bettors must place their wagers in-person at one of two retail locations.
22. Washington
Governor Jay Inslee signed Washington's sports betting bill into law on March 25, 2020. The new law permits sports wagering at Class III tribal casinos in the state. Mobile sports wagering is not allowed statewide, but is permitted when on-site at a licensed tribal casino. Betting on an 'esports competition or event' is allowed, but the new law bans wagering on games involving in-state colleges or minor league professional events. The new bill delegates regulatory oversight to the Washington State Gambling Commission.
23. Virginia
After some back-and-forth between Governor Ralph Northam and the legislature, legalized sports wagering was approved in the Commonwealth of Virginia in April 2020. Online betting is allowed, but wagering is not permitted on Virginia-based college sports or certain youth sports.
24. Maryland
In November 2020, Maryland voters approved 'sports and events betting for the primary purpose of raising revenue for education' by about a 2-1 margin. A regulatory framework must be created by Maryland lawmakers before any sports wagering takes place. The Maryland referendum would potentially allow for both in-person and mobile sports betting throughout the state.
25. South Dakota
On November 3, 2020, voters in South Dakota approved a ballot measure permitting 'sports wagering in Deadwood.' Other tribal locations in South Dakota could see the arrival of regulated sports betting too. State lawmakers must now establish a regulatory apparatus and tax rate for legalized sports wagering.
26. Louisiana
In November 2020, voters in the vast majority of Louisiana's 64 parishes approved a ballot measure permitting 'sports wagering activities and operations.' As a result, regulated sports wagering could come to New Orleans and certain other cities as early as 2021. Lawmakers will be tasked with setting up a regulatory scheme during an upcoming state legislative session.
Moving toward legalization
All of these states have seen some degree of legislative activity towards the legalization of sports betting the past few years.
27. Oklahoma
In April 2020, two federally-recognized tribes reached agreement with Oklahoma Governor Kevin Stitt on new gaming compacts that include sports betting. On June 8, 2020, Governor Stitt announced that the Department of the Interior had approved the compacts, paving the way for sports betting to start in Oklahoma as soon as the 'compacts are published in the Federal Register.' A bipartisan group of state lawmakers, along with Oklahoma's attorney general, have expressed opposition to the expansion of sports betting in Oklahoma and the prospect of legalized sports wagering remains uncertain.
28. Maine
On the last day of the state's 2019 legislative session -- June 19 -- Maine lawmakers passed 'An Act to Ensure Proper Oversight of Sports Betting in the State.' Shortly thereafter, the governor vetoed the bill. The legislature could re-introduce the bill later.
29. Nebraska
On November 3, 2020, Nebraska voters approved certain amendments to its state constitution legalizing 'all games of chance.' If the new constitutional amendments are construed to include wagering on sporting events, legalized sports betting could arrive in Nebraska upon the establishment of certain regulations.
30. Connecticut
31. Kentucky
32. Massachusetts
33. Minnesota
34. Missouri
35. Kansas
36. South Carolina
37. California
39. Ohio
40. Arizona
41. Hawaii
42. Texas
43. Georgia
44. Vermont
45. Alabama
46. Florida
47. Alaska
48. Wyoming
No legalization activity ... yet
49-50. Idaho and Wisconsin
These states have not had any publicly-announced bills devoted to sports betting legalization.
Unlikely
51. Utah
Utah's anti-gambling stance is written into the state's constitution. Any change to existing state policy toward gambling would be a massive departure from decades of opposition to any form of gambling, including lottery tickets, table games and sports betting.
[toc]Author’s Note: The original version of this article posted last week stated that the Third Circuit order granting rehearing en banc did not specify whether three active judges were recused or merely had declined to vote on the motion for rehearing. Appellate attorney Matthew Stiegler, who writes the excellent CA3Blog, posted a compelling explanation of how the order granting rehearing reflects that the three judges at issue are in fact recused, and that the order identifies the full panel expected to hear the appeal. The article below has been corrected accordingly.
In writing the original article, I found the court’s order unclear, so I did consult with an appellate attorney from Pennsylvania (part of the Third Circuit) who read the order differently than Mr. Stiegler. However, that conversation was informal, and I did not ask the attorney to do any research. The error, though unintentional, was wholly mine. Thank you to journalist John Brennan (who covers the New Jersey sports and gaming scene at the Meadowlands Matters blog) for bringing the error and the CA3Blog analysis to my attention.
Recently, the Third Circuit Court of Appeals granted the state of New Jersey’s petition for rehearing en banc in Christie II, the continuing court battle over whether New Jersey can circumvent the Professional and Amateur Sports Protection Act of 1992 (PASPA) and offer traditional sports betting through a repeal of state regulations for sports betting at the state’s casinos and racetracks.
The court’s ruling rekindled New Jersey’s waning hopes for implementing sports betting without a Congressional amendment or repeal of PASPA, but the legal issue remains up in the air. Based on the Third Circuit’s internal operating rules, my experience in appellate litigation, and my conversations with experienced federal appellate attorneys, here is what we can know and what we can surmise from reading the appellate tea leaves.
1) PASPA still prevents New Jersey from offering sports betting
The court’s decision to grant rehearing voids the Third Circuit panel opinion entered by the three judges who previously heard the appeal. However, the original district court decision in Christie II which found that New Jersey’s repeal statute violated PASPA remains in effect. So, New Jersey will not be able to offer sports betting unless and until the full Third Circuit reverses the district court ruling.
2) A final appellate decision will take some time
Even if the case moves quickly by appellate legal standards, New Jersey will likely need to wait six to twelve months for a final decision.
The Third Circuit generally will not order additional written briefing by the parties in an en banc hearing, but most likely will order oral argument before the en banc panel (per court rule, the matter will be set for oral argument upon the request of any judge sitting on the en banc panel).
Argument will not be set for several months, probably sometime in early 2016 depending on the court’s ability to coordinate the schedules of the en banc panel with an opening in the court’s limited oral argument calendar (attorney Matthew Stiegler identifies the court’s February 17 sitting as a likely candidate).
A decision generally will be entered three to six months after argument, with longer waits expected for cases where there are dissenting opinions. Christie II is almost certain to generate dissents.
3) We know which judges will be on the en banc panel—with one question mark
An “en banc” hearing by a court simply means a hearing by all judges on the court, rather than a smaller panel of judges.
In order to promote efficiency, federal law and federal court rules dictate that most appeals are to be decided by three judge panels, which occurred in both Christie I (where a different panel of Third Circuit judges found that PASPA was constitutional) and the current Christie II appeal.
The court sits en banc only rarely, and only to decide cases of great importance or to resolve conflicts between different panels of judges. Because the court sitting en banc sets binding judicial precedent for the entire Circuit, federal law and court rules generally limit the en banc panel to those Circuit judges who are in active status.
The Third Circuit currently has 23 total judges, of which 12 are active and 11 have taken senior status (a sort of semi-retirement for judges which allows them to be appointed to hear cases on a limited basis to assist with the court’s workload). So, the en banc panel would usually consist of the 12 active judges. The panel composition may change, however, based on four considerations — appointments, retirements, recusals, and special appointments of senior judges.
Appointments
There are currently two vacant judicial openings on the court. One of the vacancies is set to be filled by current Pennsylvania Federal District Judge Luis Felipe Restrepo, whose nomination has been approved by the Senate Judiciary Committee, but whose final approval by the full Senate has been delayed for several months due to political maneuvering over Presidential appointments.
It is possible Judge Restrepo’s nomination will be approved late this year, in time for him to join the court prior to its en banc sitting.
Retirements
One or more of the current active judges may retire prior to the en banc hearing. By rule, an active judge taking senior status prior to the en banc hearing could still choose to sit on the en banc panel.
Recusals
One or more of the current active judges may recuse themselves prior to the en banc hearing because of an ethical conflict (e.g., having represented one of the parties previously, having a direct financial interest in the case, being related to an attorney of record). In this case, Chief Judge McKee, Judge Chagares, and and Judge Shwartz have recused themselves. There is no court filing or public statement indicating the reasons for each recusal.
Special appointments of senior judges
Although only active judges can vote whether to grant rehearing en banc, by statute and court rule, senior judges who were on the panel that originally heard the appeal may choose to sit on the en banc panel. In this case, Senior Judges Rendell and Barry have elected to sit on the en banc panel.
Bottom line, assuming no further recusals, we can expect the en banc panel to have 11 or 12 judges — the nine active judges who did not recuse themselves, plus Senior Judges Rendell and Barry, and possibly Judge Restrepo if he is confirmed prior to argument. Thus, New Jersey will need to find six votes in order to prevail.
Should Judge Restrepo be confirmed and sit on the panel, New Jersey would need seven votes to prevail; a tie vote would leave the district court decision in force as the final decision, but a tie is highly unlikely—in case of a tie, one judge would likely switch sides and join a narrow decision in order to provide finality to the issue.
4) The en banc vote is instructive, but not determinative
New Jersey unquestionably scored a significant procedural victory in getting the court to order rehearing en banc. The Third Circuit rarely grants en banc consideration; only one of 2,402 appeals in 2014 and two of 2,715 appeals in 2013 were considered by the court sitting en banc. So New Jersey has made it past the biggest procedural obstacle in its path.
But New Jersey and sports bettors should not celebrate just yet. New Jersey still needs six judges to vote for its position on the merits. Getting those six votes will be a daunting task.
Although at least five of the nine active judges on the panel voted in favor of granting rehearing en banc, a vote to hear a case en banc is a procedural vote, not a vote on the merits. A judge might think the appeal is sufficiently important that the full court should decide the issue or that the panel decision needs more clarity, yet still vote to affirm the district court decision on the merits.
It is also possible a judge could feel the panel reached the right result but for the wrong reason; for example, the Christie II panel decision did not reach the issue of whether New Jersey’s limited repeal in only casinos and racetracks constituted de facto licensing in violation of PASPA, an issue which might appeal to some judges as a stronger basis for ruling against New Jersey’s position.
And some judges will provide a “courtesy vote” — if several colleagues express interest in hearing a case en banc, judges may add their votes in favor of en banc consideration solely to ensure their colleagues get the opportunity to hear the case. In any event, it would be a mistake to assume that any of the judges (other than Judge Fuentes) voting to grant rehearing en banc necessarily think the panel decision was wrong or are inclined to rule in favor of New Jersey.
By contrast, the converse rationale for judges voting against rehearing en banc is not as strong. It is certainly possible the active judges, if any, who may have voted against rehearing may have felt the panel decision was wrong, but not meriting en banc review (recall how rarely en banc is granted). Yet, this particular case involves high-profile parties and attorneys, and raises a significant question of state sovereignty.
Sports Betting In Nj Update
So if any judges did not vote for en banc review, they are likely votes against New Jersey’s position.
5) The final decision is likely to be closely divided
Although it is highly speculative at this point, we can do some vote projections for the en banc panel. Remember, assuming an en banc panel of eleven or twelve judges, the winning side needs to get at least six and possibly seven votes.
Based on the Christie II panel decision, we can assume Judge Fuentes will vote for New Jersey, while Senior Judges Rendell and Barry will vote for the sports leagues. Based on the Christie I decision, we can assume that Judge Vanaskie will favor New Jersey, as he dissented and would have found PASPA violated New Jersey’s state sovereignty. Similarly, Judge Fisher voted in favor of the sports leagues in Christie I and would presumably be inclined to vote against New Jersey again this second time around.
Of course, neither Judge Vanaskie nor Judge Fisher are locked into place based on their Christie I votes; Judge Fuentes notably went from writing the pro-sports leagues Christie I majority decision to writing the pro-New Jersey dissent in Christie II. But if we are betting people — and we are — the smart wager is for consistent voting.
New Jersey—2 (Fuentes, Vanaskie)
Leagues—3 (Rendell, Barry, Fisher)
Next, the underlying issue in this appeal—the interplay between Congressional power and state sovereignty—is generally an ideological issue. Conservative judges tend to favor elevating state sovereignty over claims of broad Congressional authority, while liberal judges tend to favor Congressional authority over state sovereignty claims.
Interestingly, in Christie I, the issue broke in the opposite direction, as Judge Vanaskie (an Obama appointee) wrote a dissent favoring state sovereignty while Judge Fisher (a Bush appointee) joined the majority decision upholding PASPA (and it is a fair criticism that the President who appointed a judge is only a rough proxy for likely ideological leanings).
Still, there are three other active judges appointed by Republicans on the court who will sit on the en banc panel — Smith, Jordan, and Hardiman (the remaining Republican appointee, Judge Chagares, was recused from en banc review). Interestingly, those three judges, added to the votes of Judges Fuentes and Vanaskie, would have been sufficient to grant en banc review. Let’s assume — again, as the smart wager — that these three judges are likely votes for New Jersey. Or, more to the point, it is difficult to see a way for New Jersey to win without the votes of those judges.
New Jersey—5 (Fuentes, Vanaskie, Smith, Jordan, Hardiman)
Leagues—3 (Rendell, Barry, Fisher)
This leaves three or four judges whose votes are up for grabs — Judges Ambro, Greenaway, Krause, and possibly Restrepo (if confirmed). Each were appointed by either President Clinton or Obama, so they may lean toward the sports leagues because of deference to Congressional restrictions on sports gambling. Or, they may lean toward New Jersey based on their decision to vote in favor of en banc review (assuming they voted for en banc review).
In any case, the final vote is likely to reflect a closely divided court, which is appropriate considering the legal issue in play is a close call with meritorious arguments on both sides.
6) New Jersey probably remains a slight underdog
If we assume that judges’ actual votes for Christie I and Christie II are the most reliable guide to their votes on the merits of the appeal, the sports leagues have a slight advantage with three fairly solid votes as a base, compared to only two solid votes for New Jersey.
Even adding in three votes based on ideological assumptions fails to get New Jersey to the six or seven votes needed to prevail. New Jersey’s position is not impossible; the state may well have a built-in advantage with many of the remaining judges given there were at least five votes in favor of granting en banc review (presumably Judges Fuentes and Vanaskie, joined by at least three colleagues).
New Jersey Sports Betting Update News
But New Jersey’s path to a victory remains challenging. Irrepressibly exuberant New Jersey state senator Ray Lesniak would be smart to make contingency plans for wagering on the Super Bowl somewhere other than Atlantic City.