State Attorney General Says Perdue HOPE Shift "Likely" Unconstitutional

By James Salzer
The Atlanta Journal-Constitution
Georgia Politics
February 15, 2010


Georgia Attorney General Thurbert Baker on Monday said Gov. Sonny Perdue's plan to use lottery money to pay for more state scholarships is "likely" unconstitutional.

Baker, who as a legislator helped carry the constitutional amendment that created the lottery in 1992, was asked by Republican House and Senate leaders to opine on the legality of the shift of taxpayer-funded scholarships to the lottery. The games are already struggling to keep up with the cost of the HOPE scholarship and pre-kindergarten programs.

Baker said, "The state constitutional provision and state law protecting the lottery's funding for HOPE scholarships and other permitted uses are meant to protect the funding for those programs during difficult times. Georgia is facing difficult choices in this year's budget, but the state cannot raid the lottery fund to try to fix our current budget problems."

Perdue wanted to save tax money by shifting about $33 million worth of scholarships and grants -- including awards to private college students -- to the lottery. That might not be a problem in some years, but the cost of HOPE scholarships and pre-kindergarten classes will exceed lottery revenues this year, so the state will have to dip into lottery reserves.

Depending on how deeply it has to dip into reserves, the state may have to begin cutting benefits to HOPE scholars to ensure the program's survival.

Perdue's proposal would help balance the state budget by using lottery reserves rather than tax money.

The constitutional amendment that created the lottery in 1992 states that lottery funds can't "supplant" funding for existing education programs. Most of the programs Perdue wants to shift to lottery funding existed before the lottery. Lawmakers worry that the shift will only speed up the need for cuts in HOPE.

The House voted last week for a mid-year budget that goes against Perdue's proposal to shift the programs to the lottery. The Senate is expected to do the same this week.

Bert Brantley, the governor's spokesman, said after Baker's ruling, "We obviously did not build a budget around something we believed was unconstitutional. We would respectfully disagree with the conclusion.

"At the end of the day, it was a way to keep these scholarships going. It was a way to fund scholarships through HOPE and through [the] lottery. "

Baker is a Democratic candidate for governor.


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