Ken Paxton is fighting to kill Obamacare. Can a Democrat win on a campaign to stop him?

A protester dressed as Death holds a sign during a rally before a hearing in a lawsuit against the Affordable Health Care Act in Fort Worth on Sept. 5, 2018.
A protester dressed as Death holds a sign during a rally before a hearing in a lawsuit against the Affordable Health Care Act in Fort Worth on Sept. 5, 2018.
Leslie Boorhem-Stephenson for The Texas Tribune

It’s ignited sleepy attorney general races in Florida, Wisconsin and Arizona. It has pitted two Democratic senators against their own state’s top lawyers. In West Virginia, Democrat U.S. Sen. Joe Manchin shot it down — literally — in a re-election campaign video.

Can a Texas-led lawsuit to kill Obamacare boost Democrats even in deep-red Texas?

Justin Nelson sure hopes so. The well-credentialed Austin lawyer is challenging the architect of that case, incumbent Republican Texas Attorney General Ken Paxton, in this fall’s general election, betting that the controversial case can help him overcome the partisan disadvantage that’s proved insurmountable for statewide Democratic candidates for the past two decades.

In February, Paxton — who was indicted in 2015 for securities fraud and has not yet gone to trial — launched a 20-state challenge to the landmark health care law, arguing that after Congress gutted the individual mandate, the rest of the law is unconstitutional and must fall. Critics have cast doubt on the case, from its motivations — many argue it’s rooted partisan politics, not genuine constitutional concerns — to its legal arguments.

As the lawsuit comes into play in races across the country, Nelson’s campaign has seized on it as perhaps its best bet at victory. Focusing on protections for pre-existing conditions — one of the most popular provisions of Obama’s landmark health law — Nelson has framed the lawsuit as his opponent’s attempt to wrench health care away from Texas’ most vulnerable residents. The Democrat brings the issue up almost as often as he cites the criminal charges against his opponent.

Republicans have been running against Obamacare practically since before it passed. But now, as they butt up against a midterm election season widely considered friendly to the Democrats, the issue may be becoming an advantage on the other side. Polling from the Kaiser Family Foundation shows that 75 percent of Americans consider protections for pre-existing conditions “very important.”

That makes it a potential issue in any race. But attorneys general, as their states’ top lawyers, rarely get to run on sexy policy issues. Health insurance is an unusually salient campaign issue for those vying to be the state’s lead litigator.

Both sides have accused the other of politicizing the lawsuit. To hear Nelson tell it, Paxton has jeopardized the health coverage of millions in the state to prove a political point — and to bolster his own conservative bona fides.

“He’s using this lawsuit as political cover because he’s made the strategic decision that he needs to distract from his own indictment,” Nelson said in an interview last week. “What business is it of the Texas attorney general to try and take away pre-existing protections?”

Paxton’s camp, meanwhile, argues that the Republican incumbent is merely fighting what he sees as a legal wrong. Matt Welch, a campaign spokesman, described Obamacare as “a failed experiment in socialized medicine that is an example of what can go wrong when Democrats are in power.”

“The role of Attorney General is to protect and defend the Texas and US Constitution, not enact healthcare policy or pander for votes,” Welch said, in an emailed statement. “This lawsuit has only one aim: to restore the rule of law to our healthcare markets and protect Texans from the unconstitutional expansion and intrusion of the federal government.”

Brendan Steinhauser, a Republican strategist, said the Texas-led lawsuit is “creating a microscope” on a statewide race that tends to fly under the radar.

“To some extent, sure, yes, it keeps the name in the news in a positive way among [Paxton’s] base,” Steinhauser said. But it’s also “giving the Democrats something to use,” he added.

Nelson has pledged to withdraw from the lawsuit on his first day in office. Earlier this month, his camp hosted a protest in a park across the street from the Fort Worth courtroom where Paxton’s staff was asking a federal judge to block Obamacare nationwide. Dozens of protesters wielded signs with messages like “Why Oh Why Are You Killing Me?” and one protester dressed as the grim reaper.

The issue is clearly speaking to voters, Nelson said.

“People come up to me at events and hug me for what I’m doing, speaking out on protections for pre-existing conditions,” Nelson said.

His campaign claims the numbers bear that out. In internal polls, just over half of likely voters had either “serious doubts” or “very serious doubts” about Paxton’s efforts to roll back Obamacare’s protections, a spokeswoman said. Once voters are briefed on Paxton’s background, including on the indictment, she added, Nelson pulls ahead by a small margin.

A Paxton campaign spokesman said the incumbent carries a consistent 10-point lead in his campaign’s polling.

There are 35 attorney general seats in play this fall; 13 of those races include incumbent Republicans who signed on to the Texas lawsuit.

The Democratic Attorneys General Association sees Texas as a potential pickup, a spokeswoman said. The group’s Republican counterpart doesn’t even consider the state competitive.

The lawsuit has even bled into this fall’s hottest Texas election, the U.S. Senate campaign between incumbent Republican Ted Cruz and U.S. Rep. Beto O’Rourke, D-El Paso. Democrats have slammed Cruz for signaling his support for Texas’ lawsuit. At a debate on Friday, Cruz said “everyone agrees we’re going to protect pre-existing conditions.” Cruz has been running against Obamacare for much of his political career.

Should Texas succeed, the country’s health care system would be thrown into chaos, lawyers for the U.S. Department of Justice told the federal judge hearing the case. The impacts would touch almost every individual and every piece of the health care system, experts said.

Asked what would happen to the 130 million Americans with pre-existing conditions, Paxton said the policy issue should fall to state legislatures.

“Let each state decide what’s best for their citizens,” he said in a Fox News interview.

In Wisconsin — Texas’ co-lead on the lawsuit — Republican Gov. Scott Walker has already said he’d call a special session to ensure protections for pre-existing conditions. Texas Republican Gov. Greg Abbott’s office did not return a request for comment about whether he would take similar steps.



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