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Betting on Elections: History, Law and Policy

Published online by Cambridge University Press:  01 January 2025

Graeme Orr
Graeme Orr*
Affiliation:
Law School, University of Queensland
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Abstract

Betting on elections has a long history, 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 jurisdictions which license betting on politics. These markets treat election wagers as a form of sports betting. This article examines the provenance and regulation of election betting in the common law. It charts this from early case law holding wagers involving electors to be void (as tainting voting decisions) through criminal prohibitions, some of which are still on the statute books (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 electoral democracy.

Type
Article
Information
Federal Law Review , Volume 42 , Issue 2 , June 2014 , pp. 309 - 331
Copyright
Copyright © 2014 The Australian National University

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Footnotes

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.

References

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-track/>.

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#/startingwithin/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.com/australian-federal-election>.

5 Compare sports 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: Thompson, William N and Otteman, Tim, ‘Sports Betting’ in Thompson, William N (ed), The International Encyclopedia of Gambling (ABC-CLIO, 2010) vol 1, 206, 209.Google Scholar

6 For similar suggestions from the UK, see Rosenbaum, below n 40, 9.

7 The growth is clear. In 2007 $7 million was said to have been wagered on the national election; in 2010 at least $10 million: Peter Hartcher, ‘Either Way, It's History in the Making’, The Sydney Morning Herald (Sydney), 24 November 2007, 7; Geoffrey Rogow, ‘Australia's Election Uncertainty Prompts Betting Bonanza’, The Wall Street Journal (online), 5 September 2013 <http://online.wsj.com/news/articles/SB10001424052748703946504575469202348436456>. In 2013 an offshore betting exchange, Betfair, alone held over $5 million on the outcome of the Australian election.

8 Sportingbet, About Us <http://www.sportingbet.com.au/#About>.

9 Centrebet, About Us <Us’ http://centrebet.com/#About>.

10 Sportsbet, About Us — Online Betting <http://www.sportsbet.com.au/content/general-info/about-us>.

11 Unibet, Welcome to Unibet! <https://www.unibet.com.au/default.asp?loadpage=about#1>.

12 Betfair, About Us <http://corporate.betfair.com/about-us/betfair-group.aspx>.

13 See Betfair Pty Ltd v Western Australia (2008) 234 CLR 418, 466 [56]–[60]. This allows punters to frame their own odds and options, including to lay a bet, i.e. bet against a particular outcome. In 2013 Betfair also commenced a ‘Sportsbook’, through which it lays odds directly.

14 Productivity Commission, Gambling, Report No 50 (2010) vol 1, 2.37.

15 Australian Electoral Commission, Electoral Pocketbook (Australian Government Publishing Service, 2011) 77.Google Scholar

16 Productivity Commission, above n 14, figure 2.1 at 2.5. Total betting revenue is much higher, but the money ‘churns’, as winning bets are sometimes ‘reinvested’ in another bet.

17 Ibid. The social dimension of the problem is captured in the calculation that betting losses represent 3.1% of average household expenditure, larger than the net expenditure on alcohol.

18 ‘TAB’ stood for Totalisator Administration Board, a bureaucratic name for a mechanical system of bookmaking.

19 Orr, Graeme and Gauja, Anika, ‘Third Party Campaigning and Issue Advertising’ (2014) 60 Australian Journal of Politics & History 73.CrossRefGoogle Scholar

20 Australian Associated Press, ‘Independent MPs Want Election Betting Ban’, The Australian (online), 31 January 2013 <http://www.theaustralian.com.au/news/latest-news/thousands-defy-nick-xenophons-election-gambling-ban-call/story-fn3dxiwe-1226565735397?nk=25331a5c48893ae17fd12f38b2fa73a6>.

21 The Commonwealth nonetheless can use its power over trading corporations under the Australian Constitution s 51(xx), to regulate the gambling industry: See, eg, National Gambling Reform Act 2012 (Cth) ss 55, 58, 60, 79 (gaming machine premises and manufacturers). It has also used its telecommunications power under the Australian Constitution s 51(v) to prohibit internet casinos whilst preserving online wagering: Interactive Gambling Act 2001 (Cth) ss 6, 8A.

22 Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217, 254 [2] (joint judgment).

23 Baumgartner, Frederic J, Behind Locked Doors: A History of Papal Elections (Palgrave Macmillan, 2003) 88.CrossRefGoogle Scholar

24 Brewin, Mark W, Celebrating Democracy: The Mass-Mediated Ritual of Election Day (Peter Lang Publishing, 2008) 82.Google Scholar

25 An Act for Maintenance of Artillery and Debarring of Unlawful Games, 33 Henry 8, c 9. Section 8 forbade for profit gaming houses, including the games of ‘Dysing, Table or Cardinge’ [dice, backgammon or cards]. Yet ‘gentlemen’ and ‘noblemen’ were permitted to play with their servants and families (ss 15–16).

26 Rhode, Paul W and Strumpf, Koleman, ‘The Long History of Political Betting Markets: An International Perspective’ in Williams, Leighton Vaughan and Siegel, Donald S (eds), The Oxford Handbook of the Economics of Gambling (OUP, 2013) 560.Google Scholar

27 Demarked by a universal franchise and settled parties.

28 Rhode and Strumpf, above n 26, 560.

29 Rhode, Paul W and Strumpf, Koleman, ‘Historical Presidential Betting Markets’ (2004) 18 Journal of Economic Perspectives 127, 127–42.CrossRefGoogle Scholar This is based on calculations from contemporary newspaper sources.

30 Even in Nevada, the home of gambling, betting on elections is a ‘gross misdemeanour’: Nev Rev Stat 2011 §293.830. A bill to repeal this was recently rebuffed: Sean J Miller, ‘Nevada Passes on Federal Bet Law’, Campaigns and Elections (online), 13 June 2013 <http://www.campaignsandelections.com/print/372762/nevada-passes-on-federal-bet-law.thtml>.

31 See 18 USC §1084; In re Mastercard International Inc. Internet Gambling Litigation, 313 F 3d 257 (5th Cir, 2002).

32 See 31 USC §5361; Goldberg, Andrew S, ‘Political Prediction Markets: A Better Way to Conduct Campaigns and Run Government’ (2010) 8 Cardozo Public Law, Policy and Ethics Journal 421, 431–8.Google Scholar

33 A prediction market is an exchange for speculating (in effect gambling) on future events.

34 David M Rothschild and Rajiv Sethi, Trading Strategies and Market Microstructure: Evidence from a Prediction Market (8 September 2013) Social Science Research Network <http://ssrn.com/abstract=2322420> (an econometric study showing that 1.2 million US$10 contracts were made in the final fortnight of that campaign). John Ydstie, They Call the Election a Horse Race; It has Real Bettors, Too (19 October 2012) NPR <http://www.npr.org/blogs/itsallpolitics/2012/10/19/163249835/they-call-the-election-a-horse-race-it-has-real-bettors-too> (citing US$85 million traded before that fortnight).

35 Melonyce McAfee, ‘Are “Political Futures” Illegal?’, Slate (online), 27 April 2007 <http://www.slate.com/articles/news_and_politics/explainer/2007/04/are_political_futures_illegal.html>.

36 Beers, Laura D, ‘Punting on the Thames: Election betting in Interwar Britain’ (2010) 45 Journal of Contemporary History 282, 282.CrossRefGoogle Scholar

37 Ibid 286.

38 The language is instructive: commentators from economic backgrounds like Rhode and Strumpf, above n 26 prefer terms like ‘markets’ and ‘traders’, as if election betting were a futures market rather than a form of punting.

39 Because the UK market lacked opinion poll data to inform it and, given the limited class of capitalists who drove it, the market was not broad enough to be a real crowd-sourcing exercise.

40 See, eg, Andrew Leigh and Justin Wolfers, ‘Competing Approaches to Forecasting Elections: Economic Models, Opinion Polling and Prediction Markets’ (Working Paper No 1972, Institute for the Study of Labor, 2006) 325. More equivocally, see Rosenbaum, Martin, ‘Betting and the 1997 British General Election’ (1999) 19 Politics 9.CrossRefGoogle Scholar See generally Snowberg, Erik, Wolfers, Justin and Zitzewitz, Eric, ‘Prediction Markets for Economic Forecasting’ in Elliott, Graham and Timmermann, Allan (eds), Handbook of Economic Forecasting (Elsevier, 2013) vol 2, 657.Google Scholar

41 Examples include: high-quality polling known only to party insiders, advanced information about preference deals and candidate withdrawals or major policy announcements.

42 Leigh and Wolfers, above n 40, suggest betting markets provide better predictions at the individual seat level. They also claim betting markets are less volatile than polls conducted well-prior to an election. But this misses two points. First, opinion polls only purport to be a snapshot of the sentiment at a particular time. Second, polling is a democratic feedback mechanism: politicians adjust their positions to mollify popular opinion.

43 Rosenbaum, above n 40, 9.

44 ‘Special’ here means novelty or entertainment markets. Markets on a reality television show and the Eurovision Song Contest were the next largest: Betfair Group PLC, Annual Reports and Accounts 2011, Betfair, 23 <http://corporate.betfair.com/~/media/Files/B/Betfair-Corporate/pdf/annual-Report-2011.pdf>.

45 Rhode and Strumpf, above n 26.

46 David Nason, ‘Raising the Stakes’, The Australian (Sydney), 1 October 1998, 13.

47 Report from the Select Committee on Gaming (1844) Appendix I (compiled by T Starkie QC).

48 Bentham, Jeremy, ‘General View of a Compete Code of Laws, Ch XVI’ in Bowring, John (ed), The Works of Jeremy Bentham Vol 3 (William Tait, 1843) 1070.Google Scholar

49 Andrews v Herne (c 1673) 1 Lev 33; 83 ER 283.

50 (1785) 1 TR 56; 99 ER 969. Compare Jones v Randall (1774) 1 Cowp 37; 98 ER 954, upholding a wager about the fate of a court appeal as a kind of litigation insurance, provided the wager did not involve the lawyers or judges in the case. For discussion of the seminal 18th-19th century decisions on the legal status of wagers, see Swain, Warren, ‘Da Costa v Jones’ in Mitchell, Charles and Mitchell, Paul, Landmark Cases in the Law of Contract (Hart, 2008) 119, 127–34.Google Scholar

51 Allen v Hearn (1785) 99 ER 960, 971.

52 Gaming Act 1845, 8 & 9 Vict c 109, s 18. Betting on horse racing was exempt. This rule remained until 2007. A person could only sue to recover a bet and then only if they called it off prior to the event wagered upon: George Henry Hewitt Oliphant, The Law Concerning Horses, Racing, Wagers and Gaming (Sweet, 1847) 204.Google Scholar

53 Orr, Graeme, ‘Suppressing Vote-Buying: the ‘War’ on Electoral Bribery from 1868’ (2006) 27 Journal of Legal History 289.CrossRefGoogle Scholar

54 Election Proceedings Regulation Act 1856 (Vic) s 28.

55 Anon, ‘New Laws: Elections Regulations Act’, The Argus (Melbourne), 15 April 1856, 4.

56 Carney, Gerard, The Constitutional Systems of the Australian States and Territories (Cambridge University Press, 2006) 54.CrossRefGoogle Scholar

57 Brewin, above n 24, 268–9 notes two prohibitions legislated in Pennsylvania in the 1810s and 1830s (in Brewin's endnote 74).

58 Parliamentary Electorates and Elections Act 1893 (NSW) s 120.

59 New South Wales, Parliamentary Debates, Legislative Assembly, 10 November 1892, 1776–7.

60 New South Wales, Parliamentary Debates, Legislative Council, 21 February 1893, 4374–9 (Alexander Brown, Richard Edward O’Connor, William Montagu Manning and Leopold Fane de Salis).

61 Ibid 4376 (Alexander Brown) and 4377 (John Smith).

62 Ibid 4377 (William Montagu Manning).

63 Ibid 4378 (Alexander Brown and William Montagu Manning respectively).

64 Ibid 4375 (Henry Carey Dangar). Contrast allegations that hundreds of pounds were bet in a single electorate: 4376 (Alexander Brown).

65 See, eg, ibid 4377 (Richard Edward O’Connor) and 4378 (John Mildred Creed).

66 Commonwealth Electoral Act 1902 (Cth) s 182.

67 Commonwealth, Parliamentary Debates, Senate, 13 March 1902, 10949 (John Barrett).

68 (1891) 13 ALT 44 (‘Brighton Election Petition’). For similar allegations involving a former New Zealand Premier, see Anon, ‘The Stout Election Petition’, The Timaru Herald (New Zealand), 4 January 1894, 3. The petition was dismissed on unrelated technical grounds.

69 Treating was an old-fashioned form of vote buying through lavish alcohol and food.

70 Brighton Election Petition (1891) 13 ALT 44, 45–6. It seems odd that a candidate would keep betting with the same elector; but he may have wanted to keep in the elector's good books, and each bet represented insurance.

71 Ibid 46. He was still rebuffed.

72 Commonwealth, Parliamentary Debates, House of Representatives, 24 July 1902, 14647 (Hugh Mahon).

73 Ibid (James Mackinnon Fowler).

74 Commonwealth, Parliamentary Debates, Senate, 13 March 1902, 10949 (Alexander Perceval Matheson).

75 Commonwealth, Parliamentary Debates, House of Representatives, 24 July 1902, 14647 (Sir Edward Nicholas Coventry Braddon) (emphasis added).

76 Commonwealth, Parliamentary Debates, Senate, 13 March 1902, 10949 (Richard Edward O’Connor).

77 Electoral Act 1907 (WA) s 188; Electoral Code 1908 (SA) s 189.

78 Criminal Code 1899 (Qld) s 110.

79 Finn, P D, ‘Electoral Corruption and Malpractice’ (1977) 8 Federal Law Review 194, 229.CrossRefGoogle Scholar

80 It had become part of the Table of Offences in Commonwealth Electoral Act 1918 (Cth) s 170, which was overhauled in 1983 following Joint Select Committee on Electoral Reform, Parliament of Australia, First Report – Electoral Reform (1983) ch 13.

81 Electoral Act 1985 (Tas) s 248, with a maximum fine of $500, repealed by Electoral Act 2004 (Tas).

82 Parliamentary Electorates and Elections Act 1912 (NSW) s 154. The potential penalty (currently $330) has decreased in effective value, compared to the original £20 fine.

83 Whether it could apply to people, or wagers made, outside NSW depends on whether the actions had sufficient ‘geographical nexus’ with NSW: Crimes Act 1900 (NSW) s 10C. If election betting is largely a product of whether an election is ‘pivotal’, most State election betting would be by residents of that State. A State can prohibit a type of betting. But if it allows it, Australian Constitution s 92 prevents protectionist measures like prohibitions on interstate operators competing in that market: Betfair Pty Ltd v Western Australia (2008) 234 CLR 418.

84 Alicia Wood, ‘Bookies Bet on Labor Rout’, The Sydney Morning Herald (online), 27 February 2011 <http://www.smh.com.au/nsw/state-election-2011/bookies-bet-on-labor-rout-20110226-1b98o.html>.

85 Vestigially, in State criminal codes or bespoke legislation: see, eg, Criminal Code 1899 (Qld) s 232 (operating a place for unlawful games). This remains in a chapter of the Code dealing with ‘Nuisances [and] misconduct relating to corpses’.

86 Unlawful Betting Act 1989 (NT) s 4 (bet is void), s 18 (offence by punter), ss 29 and 31 (offence by person soliciting wagers); Unlawful Gambling Act 2009 (ACT) ss 24, 25 and 29 (offences of arranging, conducting or participating in unlawful betting), s 47 (bet is void).

87 Unlawful Gambling Act 2009 (ACT) s 10.

88 Unlawful Gambling Act 2009 (ACT) s 29(2)(b).

89 Department of Business (NT), Racing and Bookmakers (30 June 2014) <http://www.dob.nt.gov.au/gambling-licensing/gambling/racing-bookmakers/Pages/default.aspx>. Bookmakers are licenced under the Racing and Betting Act 1983 (NT).

90 Productivity Commission, above n 14, 2.3.

91 Unlawful Gambling Act 1998 (NSW) ss 8(6)(d)-(d1). Betting with unlicensed bookmakers in NSW is otherwise illegal, but ‘bookmaker’ implies a commercial operation (s 4).

92 The Minister could do that, at least for betting on federal elections, by making it a ‘declared betting event’ for licensed bookmaking: Racing Administration Act 1998 (NSW) s 18.

93 New South Wales, Parliamentary Debates, Legislative Assembly, 30 November 2010, 28565 (George Souris). I am indebted to Sonja Hewison of the NSW Electoral Commission for this reference.

94 See the complaint of a Tabcorp chief executive that his company could not take over-the-counter bets in NSW, but that residents could place such bets online with, for example, a Northern Territory bookmaker: Rebecca Urban, ‘Tidy up Rules, Urges Tabcorp Boss’, The Australian (online), 17 March 2012 <http://www.theaustralian.com.au>.

95 Independent Gambling Authority of South Australia, Approval of Contingencies ― Major Betting Operations Licence, 03/2010, 11 December 2001.

96 Independent Gambling Authority of South Australia, Approved Contingencies (Authorised Interstate Betting Operators) Notice 2009, 01/2009, February 2009.

97 This is because ‘conducting betting operations’ includes an interstate bookmaker accepting a bet from someone in South Australia, and interstate operators may only take bets from South Australians on licensed races and approved contingencies: Authorised Betting Operations Act 2000 (SA) ss 40A(4)(c) and 40A(6)(a).

98 In contrast, Sportingbet does not run a book on South Australian elections given the legal position: see Australian Associated Press, above n 20.

99 Wagering Act 1998 (Qld) ss 7, 17 and 56.

100 Queensland Government, Office of Liquor and Gaming Regulation, Race or Sports Wagering (23 April 2014) <http://www.olgr.qld.gov.au/gaming/licensing/wagering/index.shtml>. (TattsBet was formerly known as Unitab.)

101 Joint Select Committee on Gambling Reform, Parliament of Australia, Interactive and Online Gambling and Gambling Advertising (2011) 200.

102 Betting Control Act 1954 (WA) ss 4A and 4B.

103 Gaming and Wagering Commission, ‘Approval for Sports Betting Events and Contingencies’, Government Gazette WA, 31/3/2009, 1031–5.

104 Gaming and Wagering Commission Act 1987 (WA) s 64(3).

105 Victorian Commission for Gambling and Liquor Regulation, Approved Betting Events (27 March 2014) <http://www.vcglr.vic.gov.au/home/gambling/existing+licensees/approved+betting+events/>.

106 Gambling Regulation Act 2003 (Vic) s 4.5.8.

107 Ibid s 2.4.12.

108 Tasmanian Gaming Commission, ‘Approved Sports Events’ (August 2009) <http://www.treasury.tas.gov.au/domino/dtf/dtf.nsf/LookupFiles/Approved-Sports-Events.pdf/$file/Approved-Sports-Events.pdf>. The power lies under Gaming Control Act 1993 (Tas) s 3(8). Other approved, non-sports categories are ‘Celebrity Announcement’, ‘Cultural Event’, ‘Entertainment – Media’ and ‘Statistics Event’ (sic). Private election wagering is lawful, provided it is not done in a public place (s 5A(2)) or as a business (ss 5A(1) and 76B).

109 Joint Select Committee on Gambling Reform, above n 101; Joint Select Committee on Gambling Reform, Parliament of Australia, The Advertising and Promotion of Gambling Services in Sport (2013).

110 Joint Select Committee on Gambling Reform, above n 101, 157–8.

111 Rosenbaum, above n 40, 9.

112 Although 2012 presidential candidate Mitt Romney's odds were inflated by ‘price manipulation by a single trader’, who lost almost US$4 million on Intrade's market: Rothschild and Sethi, above n 34, 4. On the possibility of betting markets leading to electoral rorts, see Nason, above n 46.

113 Where the law just requires electors to put a mark beside a single candidate.

114 The courts have shown little interest in applying equitable doctrine to save problem gamblers from their contractual obligations: Kavakas v Crown Melbourne Ltd [2013] HCA 25.

115 By ‘elongated’ I mean a book will be open for many months before the electoral event in question.

116 See, eg, Delfabbro, Paul et al, ‘Further Evidence Concerning the Prevalence of Adolescent Gambling and Problem Gambling in Australia: A Study of the ACT’ (2005) 5 International Gambling Studies 209.CrossRefGoogle Scholar

117 It might be thought that some small exposure is useful, lest gambling markets and odds be constructed as ‘forbidden fruit’ to some adolescents.

118 Rhode and Strumpf, above n 26 at n 60.

119 Brendan Nicholson, ‘Pollie Punting Crook — PM’, The Australian (Sydney), 2 August 2010, 8.

120 This is not to say candidates cannot back themselves innocently. For an example, see Jon Ronson, ‘Beyond a Joke’, The Guardian (UK, online), 15 January 2000 <http://www.theguardian.com/lifeandstyle/2000/jan/15/weekend.jonronson> (a joke candidate backing himself to attract over 250 votes in the hope of recovering the cost of his electoral deposit).

121 Nick Tabakoff, ‘Election Wagers Suspended as Labor Firms’, The Daily Telegraph (Sydney), 7 October 2010, 4.

122 Insider information, as noted earlier, may enhance the predictive value of betting markets; so too may saliency (the presumption that ‘investing’ in a bet encourages punters to research the bet rather than it just relying on hunches).

123 Duxbury, Neil, ‘Do Markets Degrade?’ (1996) 59 Modern Law Review 331, 335–6 (discussing the concept of incommensurability).CrossRefGoogle Scholar

124 Ibid 332. Duxbury's focus is on trade in unusual goods (eg organs) or activities (eg surrogacy). Such goods or activities are traded in themselves; a betting market is a trade in an invented risk. Liberals would consider markets that are parasitic on other activities to be even less a concern than markets in organs.

125 Commentators cannot now make ‘promotional reference’ to odds during live sporting events, although ‘incidental’ mention of odds and their distinct advertising remain permissible: FreeTV Australia, Commercial Television Industry Code of Practice (2010, as amended 2013), s 8.

126 South Australia is moving to ban any broadcast of odds during a sporting event and to include anti-gambling warnings in sports-betting advertisements or sponsorships.

127 Maltzman, Forrest et al, ‘Supreme Court Justices Really Do Follow the Election Returns’ (2004) 37 PS: Political Science and Politics 839.Google Scholar

128 Oscar Wilde, Lady Windermere's Fan (1892) (defining a cynic as someone ‘who knows the price of everything and the value of nothing’).

129 In a psychological sense, those who wager can have insurable interests, contrary to the formal legal principle that only disinterestedness in the underlying event distinguishes betting from insurance. Compare Goldberg, above n 32, 445–6.

130 Compare the portrait of the ‘adventurer’ gambler whose ‘motive is the slipping of perceptual boundaries and moving into the intensity of another reality’: Felicia Campbell, ‘The Positive Case for Gambling: One Person's View’ in William N Thompson (ed), above n 5, 164, 165, 167.

131 See, eg, Gallagher, Michael, ‘The Election as Horse Race: Betting and the Election’ in Gallagher, Michael and Marsh, Michael (eds), How Ireland Voted 2007 (Palgrave Macmillan, 2008) 148CrossRefGoogle Scholar, and Goldberg, above n 32, 439–40.

132 Compare an argument that elections are more ‘sacred’ than the trivial events on which betting has historically focused upon: Matt Beiber, ‘To Bet or Not to Bet? Why Gambling on Elections is Wrong’, The Huffington Post (online), 6 April 2012 <http://www.huffingtonpost.com/matt-bieber/to-bet-or-not-to-bet-why-_b_1407379.html>.

133 Brewin, above n 24 at 82 (quoting an 1840s newspaper). See also the handbill from the famous Oldham election of 1847, ‘Oldham Races 1847: Great Boro’ Sweepstakes: Value 1600 Suffrages’, giving the ‘Latest Betting and Condition of the Horses’ (ie candidates): reproduced in Vernon, James, Politics and the People: A Study in English Political Culture c. 1815–1867 (Cambridge University Press, 1993) 135.Google Scholar

134 Oddly, Leigh and Wolfers argue that we should substitute one form of horse race narrative for another, calling for the media to give greater prominence to reporting of election betting odds: above n 40, 336–7. Similarly unedifying is Goldberg's argument that more punditry based on election betting could somehow ‘improve campaigns’: above n 32, 438–46.

135 Beers, above n 36, 297.

136 Zeliger, Viviana A, ‘Human Values and the Market: the Case of Life Insurance and Death in 19th Century America’ (1978) 84 American Journal of Sociology 591.CrossRefGoogle Scholar Prohibitions were common in Europe from the 15th century. Insurance of course involves a kind of betting, on an ‘insurable interest’; true gambling involves an event in which neither party to the bet has any other stake.

137 Wagers on lives, births and marriages were typical in mid-18th century betting books in London, according to Clark, Geoffrey, Betting on Lives: The Culture of Life Insurance in England 1695–1775 (Manchester University Press, 1999) (cited in Swain, above n 50, n 3).Google Scholar

138 I cannot sell my vote, for obvious reasons, even though I might value the money I would receive more than the free exercise of the right.

139 See Article 19, Comparative Study of Laws and Regulations Restricting the Publication of Election Opinion Polls (2003) <http://www.article19.org/data/files/pdfs/publications/opinion-polls-paper.pdf>. The UN Human Rights committee upheld a ban on publishing polling during Korean campaigns to protect a ‘limited period of reflection, during which [electors] are insulated from considerations extraneous to the issues under contest in the elections’: Jung-Cheol Kim v Republic of South Korea, Un Doc CCPR/C/84/D/968/2001 (23/8/2005).

140 Provided it is done scientifically. Some jurisdictions insist on publishing information like sample sizes and margins of error to improve that deliberative benefit: Elections Act 2000 (Canada) s 326 and Publication of Election Opinion Polls Act 2012 (Kenya).

141 See O’Hara, John, A Mug's Game: a History of Gaming and Betting in Australia (UNSW Press, 1988).Google Scholar O’Hara dates this to the inception of white colonialism, but argues that an egalitarian approach has tended to prevail over-time.

142 Shih Hsiu-chuan, ‘Chiu Yi Alleges Vote-buying under Guise of Gambling’, Taipei Times (online), 10 January 2012 <http://www.taipeitimes.com/News/taiwan/archives/2012/01/10/2003522880>. See also Anon, ‘Legislator Accuses Tycoon of Betting on Poll’, The China Post (online), 10 January 2012<http://www.chinapost.com.tw/taiwan/national/national-news/2012/01/10/328517/Legislator-accuses.htm> (alleging that approximately A$1m in lost bets would sway 10 000 votes and corrupt a constituency race). Taiwanese election betting otherwise focuses on presidential contests, and was recently repressed for reasons beyond electoral bribery: Tseng Ying-yu and Sofia Wu, ‘Crackdown on Election Gambling to Intensify: Police Official’, Central News Agency (Hong Kong, online), 8 December 2011 <http://focustaiwan.tw/news/aall/201112080017.aspx>.

143 See Brennan, Geoffrey and Lomasky, Loren, Democracy and Decision: The Pure Theory of Electoral Preference (Cambridge University Press, 1993).CrossRefGoogle Scholar

144 Thomas (later Lord Chancellor) Erskine, Reflections on Gaming, Annuities and Usurious Contracts (Davies, Bew & Walter, 3rd ed, 1777) 4.Google Scholar

145 Election betting embodies a different kind of ritual — the ritual of the risk-taker, checking fluctuating odds before launching into a punt.

146 Anderson, Elizabeth and Pildes, Richard H, ‘Expressive Theories of Law: a General Restatement’ (2000) 148 University of Pennsylvania Law Review 1503.CrossRefGoogle Scholar Contrast Adler, Matthew D, ‘Expressive Theories of Law: a Skeptical Overview’ (2000) 148 University of Pennsylvania Law Review 1363.CrossRefGoogle Scholar The relevance of the expressive dimension of public law is not only inescapable, but potentially stronger in Australia than the US, where it becomes side-tracked into arguments about constitutional power and rights as trumps.