California voters face confusion over two competing sports betting initiatives

Knicks Go
The Breeders’ Cup Classic in Del Mar in November. Photo by Cynthia Lum/Icon Sportswire

In November, Californians will likely be faced with the question: Should sports betting be legalized?

And then, a little further down, chances are they’ll be asked again: Should sports betting be legalized?

Yes. There is a good chance that two measures to legalize sports betting will appear in the November vote. That is less than earlier this year, when four different initiatives were involved.

Of the two remaining measures, one is already up for vote in November and the other is expected to take place shortly.

What does each initiative do?

The “California Sports Wagering Regulation and Unlawful Gambling Enforcement Act” is supported by a group of Native American tribesmen and is currently up for vote. It would allow tribal casinos and the state’s four horse racing tracks to offer sports betting. It would also allow tribal casinos to expand their gambling offerings to roulette and dice games.

Meanwhile, the “California Solutions to Homelessness and Mental Health Act” is supported by several major sports betting companies, including FanDuel, DraftKings and BetMGM. It would legalize online sports betting outside Native American countries and allow gaming companies to offer online sports betting if they partner with a tribe. Election officials are reviewing the signatures for this initiative – if enough are valid, it will also qualify for the vote.

What happens if both succeed?

California occasionally ends up with ballots with multiple initiatives on the same topic.

If one succeeds and the other does not, then there is no problem: the one who succeeds takes effect, the others do not.

If they all succeed and do not conflict with each other, they can all come into effect.

But if there is more than one pass and they to be conflicting with each other, the one passed with the higher margin of “yes” votes takes effect and the other doesn’t, according to the California Constitution.

The initiative supported by FanDduel, DraftKkings and BetMGM states that it does not violate the measure allowing sports betting on tribal lands, and that if both succeed, both will take effect. The tribal-backed measure says nothing about whether it conflicts with other measures.

So if both initiatives succeed – and the initiative supported by FanDuel and DraftKings passes a wider margin — chances are both measures will take effect, said Ian Imrich, a Southern California attorney whose practice includes the gambling law. But if both the pass and the tribal measure traverse a wider margin, lawyers for the tribal measure could argue in court that the two measures to be in conflict, to try to prevent the measure supported by FanDuel and DraftKings from taking effect.

Past mood conflicts

This is not the first time there has been more than one initiative on the same topic. In 2016, there were two initiatives related to the death penalty and two about plastic bags.

Lawmakers can also negotiate deals between proponents of initiatives. In 2014, lawmakers passed a bill that would allow lenders to move their measures closer to the polls, giving them more time to potentially reach a deal. In April, for example, lawmakers negotiated a deal between patient groups, consumer advocates and medical professionals, passing a law that increases the penalties that victims of medical malpractice can demand and avoid a costly initiative battle on the subject.

In February, with four sports betting initiatives in play, state legislative leaders Anthony Rendon and Toni Atkins expressed interest in pursuing a compromise on sports betting.

“I think it’s always confusing to voters when there’s multiple votes on the same item,” Senate Majority Leader Toni Atkins, a San Diego Democrat, said at an event at Sacramento Press Club. “If you want to see progress, it’s helpful that it’s simpler, so I think there might be an opportunity[to strike a deal],” Atkins said.

When CalMatters asked Atkins’ office if legislative leaders were still considering a deal, a spokesperson said they were still investigating it.

How Californians Think

The vast majority of Californians believe the initiative process should be changed, according to a survey conducted in April by the Public Policy Institute of California. More than 90% of California residents somewhat or strongly agreed that the wording of voting measures is often too confusing for voters to understand what happens if the initiative is passed, and 56% said special interests are a big part control the process.

Most initiatives fail, and Mark Baldassare, the institute’s president, said the likelihood of a measure being passed decreases further if voters are confused by it.

The fact that initiatives can be confusing for voters — and that the process can be further confused by having more than one initiative on the same topic — is “a huge problem,” said Mary-Beth Moylan, associate dean at the University of the Pacific. McGeorge School of Law.

“People don’t tend to read things accurately. And often the title of the ballot is demonstrably misleading,” Moylan said. “So that’s especially dangerous in a situation where you have multiple initiatives on the same or similar topic.”

CalMatters is a public interest journalism company dedicated to explaining how the California State Capitol works and why it matters.