The Ohio Supreme Court tried to zero in Wednesday on which legal question should determine whether voters have a chance to overturn newly authorized racetrack slots.
For an hour, lawyers argued for and against allowing a referendum next fall that would decide the fate of the slots plan.
Their arguments in a case brought by LetOhioVote.org covered the role of the chief elections official, the history of gambling initiatives in Ohio, the stability of the state budget, and the definition of a tax.
But one issue was taken out of the mix: Whether gambling giant Penn National Gaming has any financial stake in the anti-slots effort.
Penn strongly denied the suggestion after a state senator's affidavit on the matter was submitted to the court Tuesday. Justices opted Wednesday not to accept the document as evidence.
In the affidavit, Sen. Bill Seitz, a Cincinnati Republican, recounted a phone conversation in which he said he was told by a member of the anti-slots group that money for the lawsuit and any ensuing referendum would come from Penn affiliate Argosy.
At Wednesday's proceeding, Solicitor General Benjamin Mizer told justices the insertion of the slots proposal into the state budget shields it from the referendum process. He said the constitution protects appropriation legislation from a popular vote for the sake of the economy.
"Above all, the people did not want the referendum power to be used to create fiscal instability and fiscal crisis and to tie up operations," he said.
Attorney Michael Carvin, representing LetOhioVote.org, accused lawmakers and the governor of intentionally avoiding a vote by putting the slots plan in the budget. Justice Judith Lanzinger at one point called it "an end run" around the ballot after voters rejected a different slots plan in 2006.
"When they made the conscious decision not to use taxes to create revenues that go into the treasury, but to use a licensing scheme for a controversial public policy, then they are under the rights of self-governance that are at the heart of the referendum petition," Carvin said. "Those kinds of decisions are reserved to Ohio citizens, and the General Assembly cannot immunize it no matter what kind of semantic games they play."
The two lawyers also disagreed on Secretary of State Jennifer Brunner's decision to reject LetOhioVote.org's petitions. Carvin said she was bound by the constitution to allow the referendum. Mizer said Brunner doesn't have the authority to declare a legislative directive to be illegal.
Rejection of the affidavit, meanwhile, was the second blow to the state as it sought to insert the sponsorship issue into the case, which LetOhioVote.org filed after slots-like video lottery terminals were authorized in a combined move by Gov. Ted Strickland and the Legislature in July.
Earlier, justices denied the state's request to review LetOhioVote.org's books in search of information on its benefactors. The court said the issue was immaterial to the case.
In this week's court filings, Mizer argued unsuccessfully that the affidavit raised "fundamental questions" about the lawsuit's true backers, whether the conservative group was "for hire," and whether an out-of-state corporation should be allowed to "pretend that the lawsuit's objective is to defend democracy, when in fact its intent is to do everything possible to harm that corporation's economic competitors."
LetOhioVote.org spokesman Carlo LoParo has said the group is getting no money from Penn. Penn called Seitz's statements "patently false and potentially libelous." In an interview with The Associated Press, Seitz stood by his affidavit.
Penn is backing a ballot issue this fall that would authorize casinos in Ohio's four largest cities, but the company noted that it also owns a Toledo racetrack slated to house the new slots.
Justices are expected to make a decision as soon as Sept. 15, the deadline for track owners to submit their first downpayments on the slot machines.