Two Runoff Elections in Georgia could decide the fate of the ACA.
(updated w/latest election results)
In January 2021, the U.S. Senate will have at least 48 Democrats (including 2 Senators who caucus with the Dems) and at least 50 Republicans.
The last two seats are both in Georgia. Elected GOP Senator David Perdue was up for re-election against Democrat Jon Ossoff and a Libertarian candidate, while appointed GOP Senator Kelly Loeffler was running for the first time in a "jungle primary" against another Republican and several Democrats in a special election.
Under Georgia state law, if no candidate receives at least 50% of the vote (plus 1) in the November election, the top two finishers go on to a runoff election on January 5th.
Since no candidates in the special election came close to 50%, it will go to a runoff between Loeffler and top Democratic finisher Rev. Raphael Warnock...and the regular Senate race will also going to go to a runoff between Perdue and Ossoff, as Perdue has fallen below the 50% threshold.
In other words, the two Georgia runoff elections will determine which party controls the Senate. If Ossoff & Warnock win both races, it would be 50/50 with newly-inaugurated Vice-President Kamala Harris as the tie-breaker.
Meanwhile, the House looks like it will remain controlled by Democrats...but just barely, as they've lost at least 10 seats and will likely lose a few more (they also picked up several seats to cancel some of that out).
OK, so there's still a chance at Democrats holding The White House plus very tenuous control over the House and Senate starting in January. Meanwhile, the Texas Fold'em lawsuit to strike down the entire Affordable Care Act was heard by the U.S. Supreme Court on Tuesday, November 10th.
As I've written about several times, while the hearing happened on 11/10, the actual decision in the case isn't expected to be announced until sometime next spring (likely April or later).
This, again, gives Democrats a window of opportunity to render the entire case moot before the decision is announced at all, via one of three paths:
- 1. Pass a simple bill changing the federal mandate penalty to an amount higher than $0.00.
- 2. Pass a simple bill clarifying that the mandate is separate from the rest of the ACA.
- 3. Pass a simple bill striking out the underlying mandate language itself.
As I understand it, the second or third of these would also require the barely-Dem controlled Senate to either also kill the filibuster (or to somehow convince enough Republicans to agree to hit the 60-vote threshold), while the first one (raising the penalty back over $0.00) could be done with just 50 votes +VP via the reconciliation process...which itself gets messy.
To be clear: There was no guarantee that any of this would happen even with solid majorities in both the House and Senate; doing so when Dems control each by just a whisker will make it even more tricky, especially with no guarantee that the filibuster would be eliminated...but it would definitely be possible.
With this in mind, here's a reminder about what's at stake in Georgia specifically if the ACA were to be struck down by this lawsuit.
Last year, the Urban Institute ran an analysis of the likely fallout at the state level and concluded that 461,000 Georgia residents would likely lose healthcare coverage as of 2021, along with the state losing over $2.3 billion in federal funding each year. A few months later, I worked with analysts at the Center for American Progress (CAP) to break that out by Congressional District; I independently broke the funding loss out as well.
All of this was before the COVID-19 pandemic hit, of course, causing millions to lose their jobs, their income and their employer-based healthcare coverage. This summer, CAP ran updated estimates based on the new situation and concluded that the number in Georgia likely to lose healthcare in the event the ACA is struck down is much higher: 552,000 residents (they didn't update the funding loss, but I'm assuming it would also be roughly 20% higher as well).
A few weeks ago, the Urban Institute also ran their own updated COVID-era analysis; this time they put their estimate of lost coverage lower, at around 343,000 (which is still a hell of a lot of Georgians), while their estimate of how much federal funding the state would lose was increased to $2.6 billion annually.
The 200K reduction in those losing coverage is mainly because this time they're comparing the situation in 2022 vs. today...when thousands of Georgia residents have already lost healthcare coverage due to the pandemic since the previous analysis was run.
In any event, depending on which methodology/estimate you go by, between 341,000 - 554,000 Georgia residents would lose healthcare coverage, and the state would lose between $2.6 - $2.8 billion per year. I've created an updated table which includes the full breakout of each: