New Jersey will not be given another chance to argue its case for legalizing sports betting in a federal appeals court, leaving the U.S. Supreme Court as the state’s only recourse.
The U.S. 3rd Circuit Court of Appeals in Philadelphia has denied the state’s petition for a rehearing with a majority of the court’s 10 judges voting against it, according to court documents filed late Friday. No reasons for the denial were given.
Lawmakers reacting to the development Monday, said the refusal was a major disappointment for the state. State Sen. Raymond Lesniak, D-Union, a vocal proponent of sports betting, called the decision an “amazing setback” and said he was no longer sure whether the Supreme Court will take the case.
“I’m agnostic now,” Lesniak said. “This latest setback is the first time that I’ve started to lose my certainty about whether we’re going to win or not.”
New Jersey has been dealt several blows in the fight for legalized sports wagering. Voters approved a 2011 referendum to allow sports betting at Atlantic City casinos and the state’s horse-racing tracks, but the NCAA and the leagues representing professional football, baseball, basketball and hockey filed a lawsuit to prevent the practice.
A federal trial court in March blocked the state from implementing the practice, suggesting that New Jersey turn to Congress. Then in September, a three-member panel from the appeals court rejected New Jersey’s bid again. At issue is a federal law barring states from authorizing sports betting with the exception of four states where the activity was legal before the legislation passed in 1992.
New Jersey had the right to petition for a rehearing in front of the entire appeals court, consisting of 10 judges.
The appeals court in September struck down New Jersey’s bid 2-1, but Lesniak has held that because one judge — Thomas Vanaskie — split the court’s decision, there was reason to be hopeful. In a dissenting opinion, Vanaskie questioned whether the federal government has the right to ban states from implementing the practice.
“Forcing us to go to the Supreme Court certainly delays any decision, which means we’re just going to have to wait,” Lesniak said. “For sure, we’re not going to give up on this. There’s too much at stake. ... The racetracks deserve, Atlantic City deserves, and the state deserves the added revenue that sports betting will bring.”
New Jersey has 90 days to file an appeal with the U.S. Supreme Court, but there is no guarantee the case will be heard even if the appeal is filed.
“I hope they take the case, but I’m not confident at all,” state Sen. Jim Whelan said. “The odds were against us, and we’ve known that for some time.”
Whelan, D-Atlantic, has said he doesn’t believe sports betting will bring huge advantages to New Jersey, because even if the state is successful, others will likely follow. Still, it would be better for New Jersey to have sports betting than to not have it, he’s said.
Other states have made it clear that they are watching the case closely. The court’s decision follows an intervention by West Virginia, Georgia, Kansas and Virginia last week. The four states filed a document in federal appeals court on New Jersey’s behalf.
“The Supreme Court has made clear that Congress may not regulate state governments’ regulation. ... But that is precisely what the panel majority has permitted here,” stated the memorandum submitted on behalf of West Virginia Attorney General Patrick Morrisey.
The 1992 law at issue is known as the Professional and Amateur Sports Protection Act, or PASPA. The law prohibits all states other than Nevada, Delaware, Montana and Oregon from having sports betting. New Jersey has argued the law has created an unregulated and illegal enterprise worth billions in the states where sports betting is not allowed.
According to the court’s decision Friday, neither Judge Julio Fuentes nor Judge Michael Fisher, who previously heard the case and decided against New Jersey, voted in favor of a rehearing. A majority of the remaining judges in the circuit also did not vote for a rehearing, documents state.
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