Betting on Elections: History, Law and Policy
| DOI | 10.22145/flr.42.2.4 |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| Subject Matter | Article |
BETTING ON ELECTIONS: HISTORY, LAW AND POLICY
Graeme Orr*
ABSTRACT
Betting on elections has a long hist ory, despite periods in which wagers were
unenforceable and even criminalised. In recent years, significant online markets have
emerged, driven by the bookmaking industry in those jurisdic tions which license betting
on politics. These markets treat election wagers as a form of sp orts betting. This article
examines the provenance a nd regulation of election betting in the com mon law. It charts
this from early case law holding wagers involvi ng electors to be void (as tainting voting
decisions) through crimina l prohibitions, some of whi ch are still on the statute book s
(since wagers could disguise electoral bribes) and onto contemporary regimes for
licensing electoral bookmaking.
Normative arguments about election betting and the law include the liberal harm
principle, the precautionary principle and the concept of commodification. The article
concludes that friendly wagers should be permitted, to allow partisans to intensify the
ritual experience of elections. But bets involving politicians should be outlawed, and the
industrialisation of election betting should not be encouraged given the risk of
commodifying the values underlying elect oral democracy.
I OVERVIEW
Wagering on electoral politics is a burgeoning and spec ial category of gambling. Today,
election betting sits alongside sports betting and so-called entertainment and novelty
betting,1 distinct from traditi onal forms of regulated betting such as horse racing.2 Some
* Professor, Law School, University of Queensland. This article draws on concepts developed in
an ARC project on the law of deliberative democracy (DP130100706). Thanks to Julie Oates and
Tim Brown for historical referencing, Greg Dale for research assistance, and Murray Goot, Ron
Levy, Warren Swain and Mel Keenan for comments. Appreciation also to NYU Law School
(where the article was completed during a Hauser Global Senior Fellowship). Any errors are
mine.
1 Entertainment bets are laid on popular culture or artistic affairs (everything from an aspect of a
celebrity’s life to the winner of a literary prize). Novelty bets are laid on unusual topics — for
examples recently offered, including a book on the punctuality of Melbourne trains, see Tom
Cowie, ‘All Aboard for Train Betting, as Novelty Wages Hit the Fast Track’, Crikey (online), 13
June 2012 <http://www.crikey.com.au/2012/06/13/all-aboard-for-train-betting-as-novelty-
wagers-hit-the-fast-tra ck/>.
310 Federal Law Review Volume 42
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betting agencies even list el ection odds as if they were a sub-set of betting on spo rting
encounters.3 Agencies run books, offering odds on events ranging from the date a Prime
Minister might set for the next election or who will lead the major parties at that election,
through to which party will win ind ividual seats. The most popular betti ng options are
the broadest and simplest, namely who will be the next Prime Minister or President, or
which party will form government and the siz e of its majority.4
Yet election betting is anything but a novel activity. It has a significant heritage, despite
it having been formally banned for muc h of the 20th century in Australia. A criminal
prohibition even persists, albeit unenforced, for New South Wales (NSW) elections. As we
will see, such censorious legislation did not reflect an explicit wowserism. Rather, it arose
from fears of the corrupting potential of widespread election betting on electoral choice,
including a fear that private bets could mask electoral bribery.
The emergence of the phenomenon of modern election betting has not been driven by
private wagering, nor has it been tainted by explicit electoral corruption. Rather, it is the
product of a sophisticated sports-book making industry, enlivened by new technologies.
Despite this growth, there is a decided regulatory ambivalence about election betting
markets. Most Australian States have not approved elections as permissible betting
contingencies for licensed book making. Nor have the various States of the US. But a few
jurisdictions, such as the Northern Territory, the UK and Ireland are happy to profit from
bets made by residents of others. Thanks to the internet, the genie is now out of the
bottle.5
Aside from speculating on whether betting markets are better predictors of election
results than opinion polls, academic work is yet to catch up with these developments. This
article seeks to fill that void, by examining the legal dime nsion of election betting across
both doctrinal and normati ve domains.
By way of background, and after this introduction, the second section of the article
paints a brief history of election betting and places the modern market in financial context.
The article then explains the common law of wagering, and unearths t he prohibitionist
approach to election betti ng that emerged in Australia from the late 19th century. The
fourth section of the article examines the regu lation of the modern bookmaking industry ,
and the complex and fuzzy la w around election betting in Australia.
The article concludes, in its fifth section, with an assess ment of different rationales for
the regulation of betting at contemp orary elections. It does so in the context of
contemporary concerns abo ut the proliferation of gambling in general, a nd its potentially
corrosive effects on those events, like sporting contests, upon which it is parasit ic. As we
2 I will use the term ‘election betting’, although betting can extend more broadly to cover events
over which electors have no direct influence, like the timing of elections or the fate of
legislation.
3 See, eg, Unibet Australia, Betting <https://www .unibet. com.au/betting#/startingw ithin/6>,
listing ‘Politics’ as a category of ‘Sports’.
4 See the Centrebet agency’s account of its election markets: Centrebet, Australian Federal
Election Betting — The Basics <http://www.centrebet.co m/australian-federal-election>.
5 Compare spo rts betting in the US. Whilst underground betting occurred privately, that market
only ‘substantially increased’ with the advent of the internet, thanks to sports betting being
legal in Nevada: William N Thompson and Tim Otteman, ‘Sports Betting’ in William N
Thompson (ed), The International Encyclopedia of Gambling (A BC-CLIO, 2010) vol 1, 206, 209.
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