Ryan Rodenberg and John Holden have posted this draft on SSRN. Here is the abstract:
We find PASPA’s partial and non-uniform ban on state-sponsored sports wagering to run afoul of the equal sovereignty doctrine’s general constraints as set forth in Shelby County and Northwest Austin. PASPA also fails equal sovereignty scrutiny for two other narrower reasons. First, for a law motivated to address a “national problem” with no geographic borders, PASPA’s various carve-outs for no fewer than nine states are irrational. Not only does the discrimination manifest itself between grandfathered states and non-grandfathered states, but there is also an unconstitutional differentiation between Nevada and the other exempt states. Second, PASPA’s grandfathered exceptions are perpetual in nature, making them more suspect than the temporary provisions of the Voting Rights Act ruled unconstitutional by the Supreme Court in Shelby County. If the equal sovereignty question is presented to the Supreme Court in the current Christie II litigation or a later sports gambling-specific dispute, the appropriate remedy would be to sever out § 3704’s differential grandfather clause, not eviscerate § 3702’s blanket ban. Such a remedy would be an unwelcome result for New Jersey and Nevada, but a correct application of the equal sovereignty doctrine vis-à-vis PASPA.