The state's lawyers argued in a legal brief last week that the plaintiffs waited too long to file their lawsuit, 3 ½ months after Gov. Mike Easley signed the lottery into law.
Robert Orr, of the N.C. Institute for Constitutional Law, represents some critics who are challenging the law. He believes it's not too late to prevent the lottery from coming online if the law through which it was created was passed illegally.
"Not a single ticket has been sold, not a single dollar has been collected," said Orr, a former associate justice of the state Supreme Court and the institute's lead attorney in the case. "If it's unconstitutionally adopted, it's unconstitutional, no matter how fast the train is going or who is driving it."
Orr's group helped his clients sue state officials in December, arguing the House and Senate both violated the state constitution by failing to put off second votes in their chambers on the lottery bill for another day, despite calls by lottery opponents to delay.
But state attorneys contend roll-call votes on two separate days weren't necessary -- that's only required for bills that would lead to higher taxes or borrow money against the state's credit. The House approved the lottery bill last April by a vote of 61-59. In August, the Senate needed a tie-breaking vote from Lt. Gov. Beverly Perdue for the measure to pass 25-24.
"Contrary to plaintiffs' arguments, the General Assembly has acted within its constitutional authority and in compliance with all applicable constitutional provisions," state attorneys wrote in a filing last week.
The plaintiffs also sued simply because they are opposed to any lottery, the state lawyers said. Orr has said that's not true.
Judge Henry Hight last month denied a preliminary injunction to stop the advance work for the lottery but agreed to hear the lawsuit Monday.
Those who sued want Hight to nullify the lottery law and suspend the lottery commission from performing any work on the games. Any decision by Hight ultimately would be heard by in the state appeals courts, and it's not clear whether it could be settled there before March 30.
A delay of the lottery's start would mean the state would lose the chance to collect millions of dollars daily in ticket revenues. Net lottery proceeds will go to education initiatives.
A delay also could leave lottery commission's 150 current employees in limbo.
"Nothing has changed, we're still charging ahead and doing what we're hired to do," lottery commission spokeswoman Pam Walker said late last week. "And we'll continue to do so until the courts tell us otherwise."
If the law is ultimately struck down, the General Assembly could return for a special session to approve the lottery law under the procedure cited by the courts. But, given the narrow votes last year, passage is anything but a safe bet.