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Health Insurance Mandate Ban Measures Pass in Oklahoma, Arizona; Fail in Colorado

By Dena Bunis, CQ HealthBeat Managing Editor

November 3, 2010 -- The health care overhaul law's individual mandate was soundly rejected at the polls in Oklahoma and Arizona on Tuesday. But voters in Colorado rejected a ballot proposition.

In Oklahoma, state question 756 was approved by 65 percent to 35 percent. In Arizona, Prop 106 passed 55 percent to 45 percent. And in Colorado, Amendment 63 was defeated by a fairly narrow margin of 52.8 percent to 47.1 percent.

The proposed constitutional amendments in the three states would ban enforcement of the provisions of the health law (PL 111-148, PL 111-152) that says virtually everyone must get health insurance by 2014 or face an income tax penalty.

The propositions also said that patients can pay individually for their medical care, which advocates for their passage viewed as a protection against any future move toward a government-run, single-payer system.

The results of the referenda mirrored the pre-election polling. And a Kaiser Family Foundation poll in August showed that the mandate was one of the least-supported provisions of the health law, with 70 percent of 1,203 adults surveyed saying they viewed it unfavorably.

Supporters and opponents of the individual mandate agreed Tuesday that if the health law is found constitutional by the courts, the states cannot nullify such a federal statute so that whatever the outcome, the ballot measures were unlikely to have much of a practical effect.

"To a certain point it is voters venting their spleen, expressing their disgust at the mandate provisions in Obamacare,'' said Robert Alt, deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation.

But Alt says it would be a mistake to dismiss the symbolism.

"I think it signals something broader,'' he said in an interview before the polls closed. "It will send a strong message to members going to Congress as to what voters of Arizona, Oklahoma and maybe Colorado" think of the law and perhaps provide some more momentum for those lawmakers who will arrive for the 112th Congress intent on repealing provisions of the law.

Two of the three states—Arizona and Colorado—are among the 20 that have joined in a suit against the law. The mandate is at the center of that lawsuit. Arguments on the suit at scheduled for Dec. 16 in federal district court in Florida. (See related story). A separate lawsuit is working its way through federal court in Virginia. A decision on that lawsuit is expected by year's end.

Doug Kendall, president of the Constitutional Accountability Center, said both these referenda and the multiple lawsuits challenging the individual mandate undermine the federal-state cooperation built into the law.

"The law itself builds in a great deal of flexibility for the states to design their own programs,'' Kendall said. "The reality is that the health care bill is a good example of cooperative federalism about how a federal program can incorporate and utilize the skills and existing resources of state officials."

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