3. Equal Sovereignty -- This is where New Jersey's best hope lies, thanks, in large part, to a Supreme Court decision issued just one day earlier in a Voting Rights Act case. In Shelby County v. Holder, the Supreme Court applied the "equal sovereignty" doctrine to strike down portions of the Voting Rights Act because it differentiated between the States (by requiring certain States to obtain "pre-clearance" from the federal government before being permitted to change its voting laws). This is significant because the professional sports leagues and the NCAA had successfully argued to the district court below that the "equal sovereignty" doctrine was strictly limited to the entry of new States to the union. The Shelby County decision rejects that argument, explaining that the "historic tradition" of equal sovereignty "remains highly pertinent in assessing subsequent disparate treatment of States." Thus, the district court's rationale for rejecting New Jersey's "equal sovereignty" argument is directly at odds with the Shelby County decision, which makes clear that the doctrine remains viable. Shelby County is helpful to New Jersey's equal sovereignty challenge for yet another reason -- it applies a more stringent standard to any federal effort to distinguish between States in enacting legislation. Rather than applying the "rational basis" test (as urged by the professional sports leagues and the NCAA in the sports betting case), Shelby County states that any departure from the fundamental principle of equal sovereignty "requires a showing that the statute's disparate geographic coverage is sufficiently related to the problem that it targets." One of the Third Circuit panelists appeared to grasp this distinction when he posed the following question to Ronald Riccio, the attorney representing the New Jersey Thoroughbred Horsemen's Association (one of the other appellants): "what standard of review or what test was established by Shelby County," to which Mr. Ricci quickly replied that any disparate treatment of States should be "sufficiently related to the targeted goal." This is where PASPA is especially vulnerable, as the asserted reason for the disparate treatment of Nevada, Oregon, Montana and Delaware (the four states exempted from PASPA) was to protect the "reliance interests" of those states that had legalized sports gaming prior to the enactment of PASPA. But such carve-outs do not appear to be "sufficiently related" to the targeted goals of PASPA, which are to stop the spread of legal sports betting and to protect the integrity of professional and amateur sports. A proper application of the equal sovereignty doctrine would appear to support New Jersey's position in this case.
4. Could Nevada Lose Sports Gaming? In an interesting twist, one of the panelists suggested that if there were a violation of the equal sovereignty doctrine, the proper remedy might be simply to "strike" the exemptions granted to Nevada, Oregon, Montana and Delaware, rather than allow other states (such as New Jersey) to join them in offering legalized sports wagering. This precise point was made by the four professional sports leagues and the NCAA in a filing made the day before oral argument. This would seem like a real long shot (no pun intended), given the fact that neither the State of Nevada nor any of the sports gaming interests in that State were parties to this action.
5. Expect a Ruling Before Labor Day. Given the fact that this was an "expedited" appeal, I would expect the Court to render an opinion on a fairly expedited basis as well, with a decision likely issued sometime before Labor Day. Regardless of how the panel rules, the losing side will likely file a petition seeking a "rehearing" from the entire Third Circuit (a mechanism allowed under the federal rules of appellate procedure). From there, the next step would be for the losing side to file a petition for writ of certiorari with the United States Supreme Court, seeking further appellate review from our nation's highest court. The prospect of Supreme Court review will be heightened significantly if New Jersey prevails before the Third Circuit and PASPA is found to be unconstitutional.