A court battle that starts Monday in Wake County could be the last chance for critics to stop next month's launch of the N.C. lottery.
Some court watchers say the lawsuit faces high hurdles. But the plaintiffs, who are filing briefs today, say House and Senate leaders thwarted the law by forcing two votes on the measure in quick succession last year.
If the suit succeeds, lawmakers would likely have to vote again on the lottery that they approved last year by the slimmest of margins.
And in a revote, some of the suit's backers say, the lottery would lose.
Pitfalls in setting up the game -- including resignations by three of the nine lottery commissioners and questions over a lottery vendor's political influence -- could turn wavering House and Senate members against it, said David Mills, a plaintiff in the suit.
"Decisions were clearly made about the lottery in back rooms," said Mills, who runs the Raleigh liberal think tank Common Cause. "In a way, you can see the lawsuit as a second chance for North Carolina to do the right thing."
State officials, meanwhile, have set up lottery offices, signed multi-million-dollar contracts to run the game and taken applications from thousands of retailers who want to start selling scratch-off tickets March 30. Lawmakers who ushered the lottery through the legislature believe the lawsuit has no standing and there's no way it will slow them down.
Question of lottery as tax
The lawsuit's plaintiffs include the range of lottery opponents, from Mills' group to the conservative Family Policy Council and a pair of Republican lawmakers, Sen. Eddie Goodall of Matthews and Rep. Paul Stam, who lives in a Raleigh suburb.They've teamed with lawyers for the N.C. Institute for Constitutional Law, who argue lawmakers didn't follow all the constitution's rules in rushing to approve the game.
The legal question, according to lottery backers and opponents, is whether buying a lottery ticket is the equivalent of paying taxes.
If it is, then lawmakers fumbled. The state's constitution treats tax bills differently from other legislation. Tax bills have to receive two "yes" votes on the House and Senate floor, taken on separate days. Other bills can have both votes on the same day.
The lottery squeaked through the House by a one-vote margin. Lt. Gov. Beverly Perdue had to break a tie to get the lottery through the Senate.
Leaders in both chambers, afraid some lottery backers would lose their nerve, each held their second vote on the same day as the first.
Backers say the quick passage is not a problem, though, because the lottery is not a tax.
"They will put you in jail if you don't pay your taxes," said Sen. Tony Rand, D-Cumberland, the chamber's rules chairman. "We're not going to incarcerate anyone if they don't buy a lottery ticket."
Supreme Court potential
Superior Court Judge Henry Hight will hear the case first, although advocates on both sides say the state Supreme Court will likely have the final word.
Plaintiffs hope Hight will order lottery officials to stop their work.
Hight's rulings have caused cheering and angst for both political parties. Last year, he halted plans for a statewide revote in the race for agriculture commissioner -- a move that cleared the way for Republican candidate Steve Troxler to take office. Hight also made two rulings in a close state school superintendent race last year that made it easier for Democrat June Atkinson to prevail.
Former N.C. Supreme Court Justice Jim Exum said the lottery suit is the type of case that could quickly jump to the high court because few facts would be in dispute.
Exum, now a Greensboro attorney, notes he hasn't examined the plaintiffs' arguments, but said such constitutional challenges are hard to win.
Court precedent forces judges to presume laws are constitutional. Challengers have to prove otherwise, Exum said.
"There is a definite deference to the legislative will."