[EL] Betting and Voting

Sat Oct 6 10:04:36 PDT 2012

I don't have the reference handy, but it is well established that Chief 
Justice Rehnquist ran betting pools at the Supreme Court on the outcome 
of presidential elections.

On 10/6/12 9:55 AM, Lowenstein, Daniel wrote:
>            Thanks, Adam.  That all makes sense to me.  But what about the practical implications.  Surely, there are plenty of New Yorkers who have bet on Intrade and who have every intention of voting in the election without any sense they are doing anything wrong.  Also, people who have entered the Jet Blue lottery.  And, as your example suggests, even more people who make election bets with their friends, enter election-related office pools, etc.  Does anyone familiar with New York practice know if this law has been enforced at all in recent decades?  If so, under what circumstances?
>
>               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
>
>
> ________________________________
> From: Adam Morse [ahmorse at gmail.com]
> Sent: Saturday, October 06, 2012 8:53 AM
> To: Lowenstein, Daniel
> Cc: law-election at department-lists.uci.edu
> Subject: Re: [EL] Betting and Voting
>
> 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<mailto: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<tel:310-825-5148>
>
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