As the 2020 legislative session in New York state gets under way, one of the topics on the agenda is sure to be whether New York will for the first time allow New Yorkers to engage in mobile sports betting. In that context, some may ask whether the Legislature has the power to legalize mobile sports wagering, in light of the restrictions on gambling set forth in our state’s Constitution. Ultimately, though, applying the normal methods of constitutional interpretation, we conclude that the state Constitution does not bar mobile sports wagering in New York state. The Legislature is free to authorize it here.
The constitutional question focuses on Article I, §9, which regulates gambling in New York state. In 2013, the Legislature passed an amendment to Article I, §9 (later ratified by the voters). The constitutional amendment authorized the Legislature to provide for “casino gambling at no more than seven facilities as [it may] authorize[] and prescribe.” N.Y. Const. art. I, §9. It expressly delegated to the Legislature the task of implementing relevant laws relating to wagering, which the Legislature did the same day it passed the amendment by adopting a statute that conditionally legalized “sports wagering” in New York state, see N.Y. Rac. Pari-Mut. Wag. & Breed. Law (PML) §1367. Because sports wagering was at that time forbidden by federal law, the Legislature conditioned the legalization of sports wagering on a change in federal law. PML §1367(2). Last year, in Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1481 (S. Ct. 2018), the U.S. Supreme Court invalidated the relevant federal statute, effectuating that change in federal law. As a result, the New York state Legislature is now free to authorize sports betting in accordance with PML §1367.
