Results of state legislatures, ballot initiatives could spark conflict with feds

By Anthony Brino
02:12 PM

American voters considered 174 ballot measures in 38 states Tuesday and shifted the balance of power in several state capitals, in some places potentially setting up a battle between state and federal law.

With the loss of Democratic seats in Arkansas, legislative control in the South is now almost entirely Republican, for the first time since Reconstruction, according to Tim Story, a policy researcher and electoral historian at the National Conference on State Legislatures. Next year, 30 states will have Republican governors and 26 will be Republican controlled-legislatures and it's unclear, Story said, what this means for implementation the Affordable Care Act.

“My guess is it’s going to continue to be one of those things that they’re going to fight about," Story said. “That’s a time will tell question.”

[Political Malpractice: Don't pop the ACA champagne any time soon]

Many governors were waiting for the outcome of the election to decide whether or not to create state-based health insurance exchanges. More Republican governors may now be open to creating their own, when the other options — a federally-facilitated exchange and a jointly-run exchange — both include much more interaction with the federal government.

The morning after the election Wisconsin Republican Governor Scott Walker, best known for his controversial efforts to limit collective bargaining for public sector teachers unions, said he would be meeting with state health officials to explore the idea of a state exchange.

In the South and other predominantly conservative states, several ballot initiatives approved by voters aim to limit the legislature’s ability to implement parts of the ACA. Some are likely to be symbolic only, like constitutional amendments in Alabama and Wyoming enshrining opposition to the individual mandate. One ballot measure, a rule barring Missouri lawmakers or the governor from establishing a state exchange without federal approval, may have broader economic implications and also some unintended consequences. There could be more federal involvement in Missouri’s healthcare policy with a federally-facilitated exchange, and there may be economic spillover effects in border areas, with employers in one state having more or less workplace healthcare requirements and potential competitive advantages.

And perhaps even more than insurance exchanges, state governors and legislatures face the choice of whether or not to expand Medicaid and earn the federal funding that some providers have considered crucial for adapting to health reform. 

So far six Republican governors in Texas, Florida, Mississippi, South Carolina, Louisiana and Georgia have said they will not participate in the Medicaid expansion.

President Obama’s electoral “coat-tails” did lead to a swing toward Democrats in some local and state races, Story said. In all, eight statehouses, including Maine and Minnesota, switched to Democratic control, while four switched to Republican.

[Political Malpractice slideshow: Readers views' on healthcare in the elections]

Among the dozens of other ballot initiatives — some still being counted — Maine, Maryland and Washington voters endorsed gay marriage, and voters in Connecticut, South Dakota and Idaho rejected education initiatives that would have ended elected school boards, abolished teacher tenure and instituted merit pay. California voters approved about half of their ballot initiatives, including the governor's income and sales tax increases; they rejected the required labelling of foods made from genetically-modified crops and a proposal to limit corporate and union campaign contributions.

In other healthcare news, Massachusetts voters rejected a proposal allowing physician-assisted suicide, while approving the medical use of cannabis — something Arkansas voters rejected. Voters in Washington and Colorado, meanwhile, approved cannabis liberalization reforms allowing for state regulation and taxation, another area of potential conflict with federal law. Oregon voters rejected a similar proposal.