Health Care Obamacare lawsuit boosts Democrats in state AG races The threat to protections for Americans with pre-existing conditions has injected new energy and cash into many races.

Democrats believe they have their best chance in years to flip crucial state attorney general seats by trumpeting the same message that drew furious protesters to town halls and to the polls last year: Republicans are trying to take away your health care.

These down-ballot races usually fly under the radar, but they are front and center in 2018 as many Democratic officeholders have turned the positions into the cornerstone of resistance to President Donald Trump, challenging dozens of his policies in court, from the separation of immigrant families at the border, to the ban on travel from several Muslim countries, to the crackdown on marijuana sales in states that legalized the drug.


With a blue wave already forecast for this November’s midterm elections, and the battle over the Affordable Care Act now playing out in the courts rather than in Congress, Democrats seeking to claim as many as a half dozen attorney general seats are using a lawsuit brought by 20 Republican AGs to abolish Obamacare as a political battering ram — highlighting its threat to the health law’s popular protections for people with pre-existing conditions.

The lawsuit has already injected unexpected energy and cash into many of the 30-plus races across the country for state attorneys general — a dozen of which are seen as competitive. Democratic challengers in battleground states like Florida, Wisconsin, Georgia and Arizona are attacking the incumbents for bringing the lawsuit and vowing to withdraw their states from the case or join with states defending Obamacare.

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Many are cutting ads saying the lawsuit could threaten health coverage for tens of millions of people with preexisting conditions, from children with cancer to adult diabetics, and holding rallies featuring people who struggled to obtain insurance before Obamacare due to a health condition.

Even in deeply conservative Texas, where the Republican governor is set to coast to an easy reelection, Democratic challenger Justin Nelson has relentlessly hammered the already scandal-plagued state Attorney General Ken Paxton on his role as the lead plaintiff in the case and is now within one point of Paxton in the polls.

“I will withdraw Texas from the lawsuit on my first day on the job,” Nelson told POLITICO. “Texas has one of the worst rates of uninsured people and one of the highest rates of pre-existing conditions in the country. We should be the leader in fighting to protect people from insurance companies, but instead we’re the face of the lawsuit to end coverage of pre-existing conditions.”

Paxton’s office did not respond to multiple requests for an interview.

With Republicans controlling every lever of power inside the Beltway, state attorneys general have become a last line of defense for Democrats. Blue states, led by California, New York and Massachusetts, have repeatedly taken the Trump administration to court over a slew of its policy decisions and in some cases, won. Even in reliably Democratic states such as New York, the position’s increased visibility has led to fiercely competitive primaries as the party’s rising stars jockey to lead the anti-Trump resistance.

“The position is becoming more and more important as we see the federal government attempting to undermine our rights,” said Aaron Ford, the Democratic candidate for attorney general in Nevada. “And Democratic AGs are not only suing, they’re winning.”

Republican state attorneys general, meanwhile, have been at the forefront of the legal battles to take down Obamacare as the congressional repeal effort faltered. Back in February, 20 of them filed the latest suit, arguing Congress’ repeal of Obamacare’s individual mandate penalty rendered the rest of the law unable to stand. The case was considered a long shot until the Trump administration announced in June that it would side in large part with the GOP-led states. Rather than defend the law, the Justice Department argued its protections for people with pre-existing conditions was unconstitutional without the mandate.

Though Republicans have successfully campaigned for several election cycles on promises to repeal Obamacare, a lawsuit going after the most popular piece of the law — and one Republicans repeatedly vowed to preserve — may prove politically perilous. A POLITICO-Morning Consult poll released Sept. 12 found that registered voters of every age group overwhelming responded that they trust Democrats in Congress more than Republicans to protect people with pre-existing conditions.

Another Kaiser Family Foundation poll found that three-quarters of the public believe it’s “very important” to preserve the ACA’s protections for people with pre-existing conditions, including nearly 60 percent of Republicans. And an earlier June poll found that nearly two-thirds of voters say a candidate’s support for continued protections for people with preexisting health conditions is either the “single most important factor” or “very important” to their vote in the upcoming midterms.

But Republicans continue to bet that promises to dismantle the ACA will turn out their base, more than 75 percent of whom continue to oppose it. This year, Republican candidates for governor in Minnesota and Maine won their primaries by vowing to work to get rid of the ACA, as did Senate candidates in Wisconsin and Tennessee. And two AG slots opened up this year, in West Virginia and Missouri, because the incumbent Republicans are using their opposition to the health law as a jumping off point to run for the U.S. Senate.

Still, after watching the pro-Obamacare outpouring triggered last year by Congress’ unsuccessful repeal attempts, Democratic candidates believe the lawsuit will galvanize voters to cast ballots for them.

The issue has already come to dominate the Senate campaigns of the Democrats running against two of the lawsuit’s backers, West Virginia AG Patrick Morrisey and Missouri AG Josh Hawley. Sen. Joe Manchin’s latest TV ad even features him shooting a copy of the lawsuit with a rifle and saying that when it comes to Morrisey’s lawsuit taking away the health protections of West Virginians, “that ain’t gonna happen.”

Thanks in large part to the deep unpopularity of the suit, both Hawley and Morrisey are struggling to gain an advantage in states Trump won in 2016.

Democrats hope the lawsuit will not only help these vulnerable red-state senators, but also propel some of their attorney general candidates to victory. They are aided in part by the 2017 decision by Republicans to terminate a longstanding agreement not to target the other party’s AGs running for reelection, making a host of vulnerable incumbent Republicans fair game in 2018. The Democratic Attorneys General Association, which is pouring more than $12 million into the contests this cycle, is focusing on unseating the leading Republican attorneys general involved in the suit.

The group’s top candidates, such as Texas’ Nelson, are making the issue a centerpiece of their campaigns.

The morning a federal judge in Fort Worth heard oral arguments about the constitutionality of an Affordable Care Act without the individual mandate, Nelson held a rally across the street from the courtroom featuring Texans with pre-existing health conditions who could lose their coverage if the lawsuit succeeds. The law professor at the University of Texas at Austin then urged attendees to upload videos to his campaign website to “tell Ken Paxton how his unjust lawsuit against preexisting conditions would affect you.”

Similarly, Wisconsin Democrat Josh Kaul hopes to make the lawsuit an albatross around the neck of Wisconsin Attorney General Brad Schimel — Paxton’s co-leader in the lawsuit. Kaul has held rallies outside the Wisconsin state capitol and federal courthouses denouncing the case and promising to withdraw from it immediately.

“I don’t think anyone in Wisconsin should be unable to obtain insurance coverage because they have a preexisting condition,” Kaul told POLITCO.

Schimel, who did not respond to repeated requests for an interview, said in a statement in June that the decision to bring the lawsuit was based simply on the law, not on ideological hostility to Obamacare.

“When Congress voted to remove the individual-mandate tax in December 2017, the constitutional underpinnings of the entire law fell apart,” he said.

Schimel’s campaign spokesman Matthew Dobler added that the attorney general “wants to see young people and those with pre-existing conditions covered; however, his job is not to write laws. It's to defend constitutional laws and challenge unconstitutional laws.”

Some attorney general challengers are going even further, campaigning on promises to join the 17 Democratic AGs who intervened in the lawsuit to defend Obamacare after the Trump administration declined to do so.

“It’s a no-brainer that we need to be on the side of the people,” said January Contreras, the Democratic challenger in Arizona. “We will join the lawsuit to save the ACA so that people with preexisting conditions can continue to afford care without being discriminated against.”

Like Schimel, Arizona’s Republican Attorney General Mark Brnovich says federal legislators, not attorneys general, would be responsible for the repercussions of the lawsuit.

“If the Court finds that the ACA is now unconstitutional, it’s up to Congress to enact a constitutionally sound health care law that protects all Americans,” Brnovich’s spokeswoman Katie Conner wrote in a statement to POLITICO.

Even Republican AGs who are not participating in the lawsuit haven’t been safe from attack.

Ohio’s Democratic challenger Steve Dettelbach held a conference call with reporters on the day of the oral arguments, excoriating AG Mike DeWine, who is now running for governor, for “not standing up for Ohioans” and defending the ACA.

Ford is making a similar argument in Nevada, and according to internal polling data his campaign shared with POLITICO, it has helped him gain a 5-point lead over his opponent.

“It’s unacceptable that our current AG and the candidate running to replace him refuse to take the side of Nevada families,” he told POLITICO. “We cannot let ourselves go back to the days when a child with asthma could be denied insurance.”

But while the lawsuit has dominated the conversation in health policy circles and in campaign ads across the country, some challengers worry the threat to the consumer health protections has not yet broken through to the general public with the intensity it did last year when voters mobilized to pressure Congress to back down from repealing the Affordable Care Act.

“We’re trying … to remind people that all the effort that went into lobbying Congress to keep preexisting conditions protections in 2017 is now at stake in this lawsuit,” Nelson said. “It’s time to raise it up to that level now, and I’m concerned we aren’t at that level yet.”