Why Is Prop 26 Polling Better Than Prop 27? Legal Expert Explains

California is home to more Native Americans than any other state, with nearly 100 separate tribal reservations. But for such a big place with so many tribes, California actually has very little tribal land.

Tribes own only about 7% of California land.

That’s much less than much smaller Oklahoma, where nearly 43% of the land belongs to tribal nations. 

UC Davis law professor and tribal law expert Katherine Florey told California Casinos the reason for California’s lack of tribal land goes back to the 1850s, when tribes were pushed off their land under treaties later rejected by the US Senate. 

“So over the century-plus since that happened,” Florey said, “tribes have been able to get small amounts of land but reservations here are much smaller than many other states.”

It’s a history that California is still trying to rectify.

And that, Florey said, is a major reason why she thinks Prop 26 is polling ahead of Prop 27 ahead of the Nov. 8 election. In California, supporting Native Americans is one of the few things Democrats and Republicans can agree on.

A recent SurveyUSA poll found 43% of likely California voters support Prop 26, which would legalize California sports betting at the state’s Indian casinos and licensed horse racetracks. Meanwhile, that same poll found 37% supported Prop 27, which would legalize online and mobile sports betting via private companies partnered with California tribes.

“There’s a broader base of support for Prop 26,” Florey said. “I think a lot of voters in California are somewhat sympathetic to tribal interests.” 

Florey singled out a couple other reasons why Prop 26 is beating Prop 27 right now, too.

Sticking With the Tribal Gambling Status Quo

Californians approved expanded gambling on tribal lands in 1998 under Prop 5. For the first time, tribal casinos could operate slot machines and banked card games under tribal-state gaming compacts. Contributions to non-gaming tribes were also approved.

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Voters backed the measure with a whopping 62.3% of the vote. 

Because Californians have approved expanded gambling on tribal lands before, Florey said she thinks they are more likely to stick with that plan in the future rather than expanding gambling off-reservation.

The Thing About In-Person vs. Online Sports Betting

Two other reasons Florey says she thinks Prop 26 could win out over Prop 27 — if any win is in the cards — has to do with key California demographics:

• The average age of a sports bettor in the US
• The age of likely voters in this year’s midterm election

Midterm voters are historically older, with “eligible voters over the age of 65 … still more than twice as likely to vote as those under 25” in a US midterm election, Statista reports. 

Online sports betting, said Florey, may appeal more to younger voters than older ones. Most online sports betting advertising is definitely aimed at young- and middle-aged adults who make up a large share of US sports bettors.

The most active sports bettors in the nation in Dec. 2021 were between the ages of 35 and 44, according to a survey from Statista. Of those surveyed, 15% in that age group said they bet on sports at least once a week. 

“The idea of online sports betting — there’s a pretty limited constituency for, and I’ve seen statistics that younger people support that much more than older people,” Florey said. “So I think kind of the core constituency for Prop 27 is not a high turnout group.” 

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Florey: Skeptical About Either Measure’s Chances as Nov. 8 Nears

Florey is not optimistic that either ballot measure will pass on Nov. 8.

In fact, she is skeptical anything will happen with sports betting at the polls this year. 

Although the recent SurveyUSA poll provides some hope, an Oct. 4 UC Berkeley poll on both measures showed Prop 26 polling at 31% in favor, compared to 27% for Prop 27. 

Florey thinks an onslaught of advertising by both prop campaigns is one reason for the dual struggles. Voter confusion with how the two measures differ, or are the same, is another.

“I think all the advertising and the fact that these propositions are different and contradictory, but also similar, I think that’s just caused a lot of confusion,” Florey said. “In California especially, if you don’t know what a proposition does, the default is just not to vote for it.” 

Florey knows what each ballot measure would do, and she knows who generally supports each. Many of the state’s gaming tribes support Prop 26 and its restriction of sports betting to in-person-only sportsbooks at tribal casinos and four private racetracks in California. 

Top-brand sportsbooks and fewer tribes (although there are some) support online sports betting through tribal and non-tribal partnerships under Prop 27. 

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Tribal governments would benefit in varying degrees from both. But it’s Prop 26 that would give tribes considerably more control over sports betting in California. And that’s something most tribes seem unlikely to concede. 

“Indian gaming is the first — and only — economic development tool that has ever worked on reservations,” according to CNIGA (The California Nations Indian Gaming Association), which has more than 40 member tribes across the state.

“The majority of reservations are in remote, inconvenient locations on land that nobody else wanted. Before tribal government gaming, there had been little success with public or private sector economic development on reservations. The states have not proposed any specific or credible alternatives to Indian gaming as a meaningful source of tribal revenues and jobs.”

IF PROP 27 PASSES … Potential California Sports Betting Promotions