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By Rebecca Adams, CQ-Roll Call (TNS)

WASHINGTON — With the fate of President Barack Obama’s top legislative accomplishment hanging in the balance, state officials are increasingly concerned by the administration’s refusal to discuss contingency plans for insurance markets should the Supreme Court strike down 2010 health care law subsidies for 6.4 million low- and middle-income people.

Officials in a variety of states, including many led by Republicans, say they are panicked by the uncertainty a ruling this month against the government in King v. Burwell could unleash. Justices are weighing whether the health care overhaul allows federal subsidies for coverage to be offered in all states, or just in those that, as the law states, are “established by the state.” Sixteen states and the District of Columbia have created their own state-run health insurance exchanges; the others that rely on the federal website to enroll people could see aid disappear.

State officials expected the administration to be publicly tight-lipped about the prospect of a ruling against the law. But some say they are surprised that, so far, the administration does not appear to be holding private discussions about how to address potential fallout. Affected states would have to address unique technical and legal quirks associated with covering their residents, as well as political obstacles.

“Whatever the administration might be doing in terms of backup planning, they are not talking to the states about it, and groups like us are not privy to it,” said Ron Pollack, executive director of the advocacy group Families USA, which supports the law. “The administration — and I really want to emphasize this — is confident that it will prevail in court and it doesn’t want to do anything to undermine that possibility.”

Governors would face enormous pressure to promptly respond should justices rule against the existing system for distributing subsidies. Although Supreme Court Justice Samuel A. Alito Jr. has suggested the court might carve out a grace period, health coverage for 2016 plan years must kick in on Jan. 1. State officials and health plans would have to scramble to come up with alternative coverage frameworks or risk letting people who lose subsidies become uninsured.

“For the governors, it’s a tough situation for all of them,” said Seema Verma, a consultant who advises seven states. “No one wants to see people lose coverage. … What’s ironic is that there’s no discussion from the federal government to say, ‘Here’s our plan.’ Especially in the short-term situation, people are going to look to them to outline their plan and they have yet to do that.”

A group of 30 state insurance commissioners visited Capitol Hill in late April, and many asked their congressional delegations to pass a law this year extending the subsidies. Congressional Republicans are split on that.

Public Stance The administration may be trying to avoid talk of contingency plans, fearing it would encourage wavering justices to strike down the subsidies. But that appears to have deprived the 34 states that depend on of legal and technical advice on how they could comply with a ruling and declare an exchange their own.

Health and Human Services Secretary Sylvia Mathews Burwell wrote in a Feb. 24 letter to lawmakers that “we know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision.”

States would have a hard time setting up their own marketplaces in time for the 2016 term year because of time and financial restraints, though this week Pennsylvania Democratic Gov. Tom Wolf sent an application to federal officials seeking the option of creating a state-based marketplace. Wolf asked the federal government to continue administering some functions, if the state does proceed with its own exchange.

Delaware also would like to become a state-based marketplace, Burwell said.

Several states are considering ways to leverage’s technology or that of other exchanges, such as Connecticut’s, which has been deemed one of the most successful state markets in the nation.

Some states are discussing ways to lease technology. Under one scenario, states could give the federal government a percentage of a fee assessed on every insurance policy sold in the marketplace. The money is ordinarily used to pay for operation of the exchange. Under another idea, the federal government could provide it for free.

Seven states have contacted Connecticut to inquire about the costs of using its technology, said the exchange director there, Jim Wadleigh.

Some governors are weighing whether they can use executive orders to deem their use of or another state’s technology as a state-run marketplace, or whether HHS could do so, especially if the state already oversees tasks such as evaluating applicants’ eligibility, overseeing marketing or helping to authorize participating plans to sell coverage.

Another option being floated is establishing a regional marketplace serving several states. But that would require extensive coordination and could prove logistically difficult.

Many solutions would also require the signoff of a state’s legislature, especially those requiring new spending or the acceptance of federal money. Some states are not allowed to enter into contracts without approval from the legislature or state comptroller, so agreements to use technology would have to be done through a different type of pact, such as a memo of understanding.

Nine states — Arizona, Arkansas, Georgia, Missouri, Montana, New Hampshire, North Carolina, Utah, and Wyoming — have prohibitions on creating exchanges without legislative approval, according to the National Conference of State Legislatures. Efforts to change the status quo could be difficult, because most legislatures have adjourned for the year.

“We don’t typically call special sessions unless there is agreement coming in,” said Monica Lindeen, the Montana insurance commissioner and the president of the National Association of Insurance Commissioners. “Otherwise, it’s just a waste of time and money.”

Against this complicated backdrop is the ticking clock.

Insurers in many states have already submitted their proposed premium bids for 2016 and are undergoing reviews from regulators. Rate submissions for the federal marketplace are supposed to be finalized by Aug. 25 so the information can be added to and insurers can ensure the online data is correct.

HHS officials may be able to slightly delay deadlines to give states time to sort out their plans or review any revised, higher premium rates from insurers.

But the next open enrollment period under the law is scheduled to start on Nov. 1, a date that is difficult to change not only because it is set in a federal regulation but also because federal officials want to give consumers time to consider their health insurance choices before coverage begins Jan. 1.

“All of the challenges make it very difficult for states to plan,” said University of Michigan law professor Nicholas Bagley.

(Marissa Evans contributed to this report.)

(c)2015 CQ-Roll Call, Inc., All Rights Reserved. Distributed by Tribune Content Agency, LLC.

Photo: Michael Moore via Flickr


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The Arizona 2020 election "audit" under way

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As ongoing threats by Trump loyalists to subvert elections have dominated the political news, other Republicans in two key states—Florida and Arizona—are taking what could be important steps to provide voters with unprecedented evidence of who won their most close and controversial elections.

In both battleground states, in differing contexts, Republicans are lifting the curtain on the data sets and procedures that accompany key stages of vetting voters, certifying their ballots, and counting votes. Whether 2020’s election-denying partisans will pay attention to the factual baselines is another matter. But the election records and explanations of their use offer a forward-looking road map for confronting the falsehoods that undermine election results, administrators, and technologies.

In Republican-run Florida, the state is finalizing rules to recount votes by incorporating digital images of every paper ballot. The images, together with the paper ballots, create a searchable library to quickly tally votes and identify sloppily marked ballots. Questionable ballots could then be retrieved and examined in public by counting boards to resolve the voter’s intent.

“The technology is so promising that it would provide the hard evidence to individuals who want to find the truth,” said Ion Sancho, former supervisor of elections in Leon County, where Tallahassee is located, who was among those on a January 4 conference call workshop led by the Division of Elections seeking comments on the draft rule and procedures manual revisions.

Under the new recount process, a voter’s paper ballot would be immediately rescanned by an independent second counting system—separate from what each county uses to tally votes. The first digital file produced in that tabulation process, an image of every side of every ballot card, would then be analyzed by software that identifies sloppy ink marks as it counts votes. Several Florida counties pioneered this image-based analysis, a version of which is used by the state of Maryland to double-check its results before certifying its election winners.

“The fact that it has overcome opposition from the supervisors of elections is telling because the number one problem with the [elected county] supervisors is [acquiring and learning to use] new technology; it’s more work to do,” Sancho said. “The new technology doesn’t cost much in this case. Everyone has scanners in their offices already because every voter registration form by law must be scanned and sent to the Division of Elections.”

The appeal of using ballot images, apart from the administrative efficiencies of a searchable library of ballots and votes, is that the images allow non-technical people to “see” voters’ intent, which builds trust in the process and results, said Larry Moore, the founder and former CEO of the Clear Ballot Group, whose federally certified technology would be used in Florida recounts.

But Florida’s likely incorporation of ballot images into its recount procedures, while a step forward for transparency, is unfolding in a fraught context. In 2021, its GOP-majority state legislature passed election laws that are seen as winnowing voters and rolling back voting options. In other words, it may be offering more transparency at the finish line but is also limiting participation upstream.

The new recount rule is expected to be in place by this spring, months before Florida’s 2022 primaries and midterm elections. Among the issues to be worked out are when campaign and political party officials and the public would observe the new process, because the election administrators do not want partisans to intentionally disrupt the rescanning process. These concerns were raised by participants and observers on the teleconference.

The Arizona Template

In Arizona, Maricopa County issued a report on January 5, “Correcting the Record: Maricopa County’s In-Depth Analysis of the Senate Inquiry.” The report is its most substantive refutation of virtually all of the stolen election accusations put forth by Trump loyalists who spent months investigating the state's presidential election.

Beyond the references to the dozens of stolen election accusations put forth by pro-Trump contractors hired by the Arizona Senate’s Republicans, the report offered an unprecedented road map to understanding how elections are run by explaining the procedures and data sets involved at key stages.

The report explained how Maricopa County, the nation’s second biggest election jurisdiction (after Los Angeles County) with 2.6 million registered voters, verified that its voters and ballots were legal. It also explained key cybersecurity features, such as the correct—and incorrect—way to read computer logs that prove that its central vote-counting system was never compromised online, as Trump supporters had claimed in Arizona (and Michigan).

“I’ve never seen a single report putting all of this in one place,” said John Brakey, an Arizona-based election transparency activist, who has sued Maricopa County in the past and routinely files public records requests of election data. “Usually, it takes years to understand all this.”

Taken together, Florida’s expansion of recounts to include using digital ballot images, and Maricopa County’s compilation of the data and procedures to vet voters, ballots, and vote counts, reveal that there is more evidence than ever available to confirm and legitimize election participants and results.

For example, Maricopa County’s investigation found that of the 2,089,563 ballots cast in its 2020 general election, one batch of 50 ballots was counted twice, and that there were “37 instances where a voter may have unlawfully cast multiple ballots”—most likely a spouse’s ballot after the voter had died. Neither lapse affected any election result.

“We found fewer than 100 potentially questionable ballots cast out of 2.1 million,” the report said. “This is the very definition of exceptionally rare.”

When Maricopa County explained how it had accounted for all but 37 out of 2.1 million voters, it noted that the same data sets used to account for virtually every voter were also used by the political parties to get out the vote. Thus, the report’s discussion of these data sets—voter rolls and the list of people who voted—offered a template to debunk voter fraud allegations. This accusation has been a pillar of Trump’s false claims and is a longtime cliché among the far right.

It is significant that this methodology, indeed the full report, was produced under Maricopa County Recorder Stephen Richer, a conservative Republican who has repeatedly said that he had voted for Trump, and was fully endorsed by Maricopa County’s Board of Supervisors, which has a GOP majority and held a special hearing on January 5 to review the findings.

In other words, the report is not just a rebuttal for the Arizona Senate Republican conspiracy-laced post-2020 review. It is a road map for anyone who wants to know how modern elections are run and how to debunk disinformation, including conspiracy theories involving alleged hacking in cyberspace.

“There is not a single accurate claim contained in [Arizona Senate cybersecurity subcontractor] CyFIR’s analysis of Maricopa County’s tabulation equipment and EMS [election management system],” the reportsaid, referring to accusations that counts were altered. “This includes the allegation that county staff intentionally deleted election files and logs, which is not true.”

When you add to Maricopa County’s template the introduction of a second independent scan of every paper ballot in future Florida recounts, what emerges are concrete steps for verifying results coming from Republicans who understand how elections work and can be held accountable.

Of course, these evidence trails only matter if voters or political parties want to know the truth, as opposed to following an ex-president whose political revival is based on lying about elections. However, more moderate Republicans seem to be recognizing that Trump’s stolen election rhetoric is likely to erode their base’s turnout in 2022, as Trump keeps saying that their votes don’t matter.

“You’ve got Republican buy-in,” said Florida’s Sancho, speaking of his GOP-ruled state’s embrace of more transparent and detailed recounts. “And Republicans, more than anyone else, should be concerned about whether their votes were counted as cast and as the voter intended.”

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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Photo by Tom Williams via Reuters

The search is on for a new director of the federal Bureau of Prisons after Michael Carvajal announced on January 5 that he’s retiring from his appointed post and will leave when the Department of Justice finds his replacement.

The Biden Administration needs to replace Carvajal with a person who knows prisons inside and out: someone who’s been incarcerated before.

When President Joe Biden announced his first round of cabinet picks just weeks after being elected in 2020, then Vice President-elect Kamala Harris said: “When Joe asked me to be his running mate, he told me about his commitment to making sure we selected a cabinet that looks like America – that reflects the very best of our nation.

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