An early gubernatorial recall election date will keep California Native American tribes from challenging to get their sports betting initiative on the ballot.
Typically, the election would happen in November. But earlier this month, lieutenant governor chose Sept. 14 as part of a strategy by state Democrats to keep Gov. Gavin Newsom in office.
Speaking to PlayCA at the National Indian Gaming Association convention in Las Vegas, Pechanga general counsel Steve Bodmer explained how the governor’s strategic move limited tribal options.
The California Secretary of State announced the initiative’s eligibility for the ballot on May 27. To possibly qualify for the recall ballot, the initiative needed certification 131 days prior to the election. The Sept. 14 date is only 110 days after certification.
“We did think that we were going to be able to sneak in during the governor’s recall election that’s coming up … We statutorily didn’t meet the required time period because they had the recall election too soon.”
California tribes have accepted that the initiative to bring retail sports betting to the state’s tribal casinos and horse racetracks will appear on the November 2022 general election ballot.
Tribes were considering lawsuit to make recall ballot
In April, backers of the tribal initiative revealed that they were eyeing the recall election. With Los Angeles and San Diego counties going to court to seek an extension on signature verification, tribal petitioners entered the case as a party of interest.
The counties originally asked the court for an extension of 60 business days. However, backers of the tribal initiative responded with a filing asserting that delay “would render it impossible for the initiative to be submitted to the voters in conjunction with the gubernatorial recall special election that is likely to be held later this year.”
In agreeing to a 34-calendar day extension, the counties noted the tribal coalition’s “purported interest in the litigation is that they want to preserve the opportunity to be on a potential gubernatorial recall special election ballot.”
With the early election date, it turns out this 34-day delay made a big difference. If counties had verified signatures April 22 as scheduled, tribes could have fought to make a Sept. 14 recall ballot.
Recall ballot wasn’t a sure thing
Regardless of recall dates, the Secretary of State already had established that the tribal initiative would make the 2022 ballot.
The Secretary of State followed the guidance of a 2011 law wrote that citizen-initiated propositions can only make November general election ballots.
However, article II, section 8, subdivision (c) of the California Constitution reads:
The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election.
The tribes felt this was worth challenging in court if they met the 131-day threshold. They would have had to file a lawsuit against the California Secretary of State.
“Had he done anything Oct. 5 or later, we would have been able to file a lawsuit,” Bodmer said. “Right now, statutorily, we can’t file.”
The only other gubernatorial recall in California history was the 2003 election that saw Arnold Schwarzenegger take office. It had two initiatives on the ballot.
Why missing 2021 ballot is a big deal
If the tribal initiative made a recall ballot, it would have been the only sports betting measure on the ballot.
In 2021, that might not be the case.
Bodmer said he expects to see a cardroom-sponsored statewide mobile gaming initiative on the ballot. Scott Crowell, a tribal attorney who joined Bodmer on a NIGA panel, mentioned the possibility of a mobile sports betting operator-backed initiative, as is happening in Florida.
It’s also possible that the state legislature takes another crack at putting a sports betting constitutional amendment on the ballot.
The attempts at mobile sports betting could have happened in 2022 regardless. But the tribal initiative wouldn’t have to compete with them if it made the recall ballot.
“I think it can muddy the waters,” Bodmer said. “When voters see the same choice written differently three different ways, it can be difficult to get a winner out of that.”