It Just Might Be The Happy End For NH Lottery’s Wire Act Lawsuit

Written By Martin Harris on March 24, 2021 - Last Updated on September 19, 2022

When it comes to the Wire Act of 1961 and its relevance to the fate online gambling in the United States, the state of New Hampshire has recently been at the heart of the debate.

Last week a mandate issued by the First Circuit Court of Appeals further confirmed a victory for New Hampshire regarding whether or not the Wire Act could prevent online poker’s growth and expansion in the US.

The story isn’t technically over yet. But the mandate represents another positive step both for New Hampshire in particular and US online poker, generally speaking.

Mandate confirms January ruling in favor of NH Lottery

The mandate follows the same court’s Jan. ruling in favor of the New Hampshire Lottery Commission (NHLC) in its case brought in 2018 against the U.S. Department of Justice.

The case concerned the DOJ Office of Legal Counsel‘s revised opinion regarding the Wire Act. The revised opinion interpreted the decades-old law prohibiting sports betting across state lines as applying to all forms of interstate online gambling.

The NHLC’s suit maintained the new opinion would make multi-state lotteries illegal. Another consequence would be how the opinion would disallow other forms of multi-state gambling over the internet. That would include the sharing of online poker player pools among different states where online poker is legal.

In June 2019, a U.S. District Court ruled in favor of the NHLC, thereby vacating the 2018 opinion. That meant the DOJ’s stance reverted back to a 2011 opinion stating the Wire Act only applied to sports betting. The DOJ appealed, and in Jan. 2021 the First District Court of Appeals ruled against that appeal, confirming the earlier decision.

Last week’s mandate in essence just completed a procedure begun with the Jan. ruling. Dated Mar. 15, the mandate is only one sentence long. It states, “In accordance with the judgment of January 20, 2021, and pursuant to Federal Rule of Appellate Procedure 41(a), this constitutes the formal mandate of this Court.”

DOJ could still appeal to SCOTUS, though unlikely to do so

The mandate finalizes the court’s ruling, although does not rule out the possibility of a further appeal to the U.S. Supreme Court by the DOJ.

However, another appeal is not likely.

One reason is there has been a change in administrations since the DOJ tried to change its Wire Act opinion in 2018. With that change has come a different attitude regarding the law.

The Donald Trump administration and then-DOJ William Barr had delivered the opinion that the NHLC successfully challenged and had vacated. Current President Joe Biden and his Attorney General Merrick Garland have not indicated whether or not they will appeal the First Circuit Court of Appeals’ ruling.

However. Biden said during the 2020 campaign he would not support the DOJ’s effort regarding the Wire Act he inherited when coming into office.

“I would reverse the White House opinion that was then reversed and overruled by the court,” stated Biden last summer. “The court is correct.”

Immediate result of Wire Act case could be more online poker compacting

Without further appeal, the formal end of the case removes a previous obstacle preventing further multi-state agreements among states with legal online poker.

At present, the only such agreement exists between New Jersey, Nevada, and Delaware. As of today, the network is the only one taking advantage of being able to combine player pools in multiple states.

However, more states now have legal online poker. Pennsylvania‘s first online poker site, PokerStars PA went live in November 2019. Online poker also launched in Michigan in January 2021. Both states have laws and regulations in place that allow for poker compacting.

Regulators in those states can now pursue multi-state agreements without concern regarding the DOJ’s Wire Act stance if they wish.

If those states do pursue such agreements, players in those states will have New Hampshire to thank for it.

Photo by Rogério Bernardo |
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