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Historic horse racing machines would violate Arizona’s tribal gaming compact, AG says


Historic horse racing machines would violate Arizona’s tribal gaming compact, AG says

Feb 23, 2024 | 4:40 pm ET
By Jim Small
Historic horse racing machines would violate Arizona’s tribal gaming compact, AG says
A man plays a historic horse racing machine at Colonial Downs racetrack in Virginia in 2019. Photo by Ned Oliver | Virginia Mercury

Arizona’s gaming compact with Native American tribes in the state doesn’t allow for the use of so-called historic horse racing devices, Attorney General Kris Mayes concluded Thursday.

And if lawmakers at some point were to authorize the devices in state law, it would trigger a “poison pill” provision in the gaming compact that would release tribes from limits on how many gambling machines and what kinds are used in their casinos, and they would have to pay less of their gaming revenues to the state.

In a formal opinion published Feb. 22, Mayes wrote that, although amendments made to the gaming compact in 2021 create additional exceptions to gambling exclusivity for tribes, none of those changes permit historic horse racing machines.

In 2018, Mayes’ predecessor, Mark Brnovich, concluded the same thing about the original gaming compact, which was approved in 2002. 

Historic horse racing machines appear similar to video slot machines, but instead of the outcome being determined by a random-number generator, winners are determined based on old horse races that have been stripped of identifying information so gamblers can bet on them. 

In 2021, as then-Gov. Doug Ducey was negotiating a new gaming compact with tribal leaders, Arizona horse tracks and off-track betting parlors pushed legislation that would allow them to use historic horse racing machines to prop up plummeting attendance and betting. That bill was approved by a committee, but never received a floor vote, amid concerns that it would damage the gaming compact talks.

There do not appear to be any bills before the legislature this year that would legalize historic horse racing machines.

The gaming compact preserved off-track betting on horse races, known as pari-mutuel betting, that were already legal under Arizona law, which requires the races be televised or simulcast live. Because historic horse racing machines operate by using races that are many years old, Mayes wrote in her opinion, they don’t qualify as pari-mutuel betting under the law.

And the 2021 compact expands the definition of “gaming devices” that tribes are exclusively allowed to operate to include “electronic or electro-mechanical devices” used for games of chance.

“Although (historic horse racing) devices vary across manufacturers, the defining characteristic of such machines is that they are electronic or electro-mechanical devices that allow a player to engage in a game of chance and receive a prize for winning,” Mayes wrote, noting that allowing them to be used outside of tribal casinos would trigger the poison pill clause.