[EL] Betting and Voting

[Adam Morse]

Isn't the Intrade situation obviously covered?  Despite the "shares"
language, they are a matchmaking service for bets.  If I want to bet that
Romney has more than a, at present, 34.4% chance of winning, I "buy a
share"; there's someone on the other end of that transaction betting that
Romney has less than a 34.4% chance of winning by "selling a share."  But
functionally, there's no difference at all between "buying a share" or
"selling a share" and making a bet.  The fact that the odds are determined
by the level at which the betting market clears, rather than by a bookmaker
setting odds makes no difference to whether they are bets.

The JetBlue situation is a little bit less clear, but I think it's also a
bet or wager on the outcome of the election.  Participants are making a bet
that their "preferred candidate" will lose.  If their preferred candidate
in fact loses, they get a lottery ticket for a prize of a plane flight.
 And, because the rules are made clear in advance, strategic players will
list the candidate they expect to lose, not the candidate that they want to
win, as their "preferred candidate."  I could see an argument that the fact
that the participants aren't wagering any money might make a difference,
but I doubt that it would in light of the sweeping statutory language-- "or
become directly or indirectly interested in any bet or wager" seems
designed to cover any possibility of benefiting.  Presumably, the purpose
behind the statute is that people might conform their vote to their
financial interest, not to their political judgment.  It seems like that
concern would apply in full force to the JetBlue situation.  Of course,
because the stakes are low (a small chance of winning a relatively small
prize), and because a single vote in NY is assuredly not going to swing the
election, the concern of corruption is overblown.  But the statute doesn't
set a de minimus level below which bets are permitted--a one dollar bet
between friends is covered--so it seems like the statute would apply.

--Adam Morse

On Sat, Oct 6, 2012 at 1:41 AM, Lowenstein, Daniel
<lowenstein at law.ucla.edu>wrote:

>         Interesting uestions were raised the other day on a listserv not
> devoted to election law about the applicability of New York Election Law
> 5-106(1), which prohibits voting by people who have bet on the election, to
> two current situations.  The relevant portion of the statute reads: "No
> person ... who shall make or become directly or indirectly interested in
> any bet or wager depending upon the result of the election, shall vote at
> such election."  I do not know if other states have similar laws.
>
>          The original question was whether Section 5-106(1) would bar
> voting by someone who entered a promotion put on by the Jet Blue airline,
> described in this article as a "gimmick":
> http://www.nydailynews.com/life-style/jetblue-offers-free-flight-candidate-loses-article-1.1175701?localLinksEnabled=false As I understand it, people entering had to tell Jet Blue which candidate
> (Obama or Romney) they favored.  Those whose candidate lost would be placed
> in a lottery out of which 1,000 would receive free plane tickets out of the
> country.
>
>          In the ensuing discussion, someone raised the perhaps more
> pertinent question whether those who "buy or sell shares" on Intrade in
> Obama or Romney or any other New York candidatees are barred from voting in
> New York.
>
>          Any thoughts?
>
>              Best,
>
>              Daniel H. Lowenstein
>              Director, Center for the Liberal Arts and Free Institutions
> (CLAFI)
>              UCLA Law School
>              405 Hilgard
>              Los Angeles, California 90095-1476
>              310-825-5148
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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