The state of California could see a rare occurrence this November. The people may have their choice of multiple constitutional amendments that would expand gambling in their state.
That produces the possibility that voters might approve both measures. The state is prepared for that situation, however. The law is actually pretty clear.
What happens to competing constitutional amendments?
In the state of California on this topic, it’s simple majority rule. The California constitution mentions this exact scenario.
If provisions of two or more measures approved at the same election conflict, the provisions of the measure receiving the highest number of affirmative votes shall prevail.
A 1990 California Supreme Court decision strengthened this position. Ruling in the matter of Taxpayers to Limit Campaign Spending v. Fair Political Practices Commission, the court found that:
When two or more measures are competing initiatives, either because they are expressly offered as “all-or-nothing” alternatives or because each creates a comprehensive regulatory scheme related to the same subject, section 10(b) mandates that only the provisions of the measure receiving the highest number of affirmative votes be enforced.
Thus, the general rule is whichever proposal would get the most votes would nullify the other. This scenario is a possibility because California’s tribal casinos are gathering signatures to put a constitutional amendment proposal of their own on the ballot this November.
Meanwhile, legislators in Sacramento are working on their own proposal. It could appear on the ballot this November as well.
As is the case with most things in a legal system, however, there is a loophole. It’s one that the state Legislature might use if it decides to propose its own amendment.
Where the California Legislature might go from here
It’s still a possibility that the Legislature might opt to simply enact a gambling expansion law without amending the state’s constitution. The ability of the Legislature to do that is uncertain, however, and could result in lawsuits.
If the Legislature does form its own amendment measure, it could give itself a little bit of “insurance” against getting fewer votes than the tribal proposal. An example of this exists in an existing ballot initiative in the state.
An existing ballot measure to amend the state’s privacy law contains a clause that would go into effect if the state’s voters approve the proposal but by a smaller margin than others regarding the same topic. The Legislature could insert such language into its proposal as well.
While it’s unclear what all that section could entail, it might read something like:
If this initiative receives 50.01% of the vote but is preempted by a competing initiative that receives a higher percentage of the vote, then all the tenets of this initiative shall take effect regardless except where it conflicts with the measures that received greater voter approval.
In that case, it would likely fall upon the state’s courts to determine how and where the two constitutional amendments conflict, if at all. That may come into play, however, as the question of online betting might be a point of differentiation between the proposals.
If that’s the case, expect a long and perhaps ugly stretch of litigation. This may all prove hypothetical, however.
If one measure fails, then this is all moot. Additionally, if there is only one proposal on the ballot, then this situation is impossible.
Right now, however, this possibility exists. It creates an incentive for the Legislature to get the casinos on board with its proposal.