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updated 11/2/2010 8:32:18 AM ET 2010-11-02T12:32:18

Voters in Arizona, Colorado and Oklahoma will have the chance Tuesday to repudiate the new health care law’s keystone provision, one that requires almost everyone to have health insurance or face a tax penalty beginning in 2014.

Ballots in the three states include proposed amendments to the states' constitutions that would prohibit the enforcement of the individual mandate and other provisions of the law. They echo a measure that Missouri voters approved by more than 70 percent in August. Legislatures in several other states, including Georgia, Idaho, Louisiana and Virginia, have also passed state laws with similar language.

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But the ballot initiatives have set off a fierce debate: If they succeed, will they have any effect?

Critics of the referenda say they’re nothing more than a political gesture, misleading voters to believe that amending their state constitutions would allow them to opt out of the health care law. Given that the Supreme Court will likely have the final say on the constitutionality of the law before 2014, the public's vote wouldn't impact the national law, they say.

Some policy analysts agree.

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"To me it's more of a polling statement," said Elizabeth McGlynn, an associate director at the RAND Corp., a nonprofit research organization based in California that has no position on the amendments. "It's not clear to me in this case that the federal law wouldn’t override state mandate … that will be something the courts decide. … It's not really clear to me what that does at the state levels.”

Proponents argue that the amendments have a strategic function beyond the scope of individual states.

"As more and more states pass these kinds of amendments … it's going to embolden legislative action to repeal or defund legislative provisions" of the federal health law, said Robert Alt, deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, a conservative think tank in Washington.

'New avenues of litigation'

Having the new amendments in place would give states greater standing in the current litigation brought by 20 states against the federal law, says Christie Herrera, a director at the American Legislative Exchange Council (ALEC), which has provided model legislation used by several states.

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If the Supreme Court were to uphold the individual mandate in that case, a state constitutional amendment would "open new avenues of litigation," she said. States could also file suit to argue that the health law violates their 10th Amendment rights to keep powers not otherwise delegated to the federal government by the U.S. Constitution.

Opponents of the ballot amendments say the measures could complicate health care issues within the states.

Dr. Michael Pramenko, president of the Colorado Medical Society, which opposes the ballot initiative, said the amendment could affect any state efforts to set up a program to expand insurance coverage. "It would tie our hands at the state level,” he said, adding that the amendment would prevent the state from setting up its own version of the individual mandate, independent of the federal government, in the future.

The proposed amendments in Arizona, and Oklahoma are nearly identical, while the Colorado amendment differs in subtle but significant ways. The measures are centered on a few key provisions: that no individual can be forced to participate in a public or private health plan; that a person's ability to make or receive direct payments for medical services cannot be restricted; and that no one should be forced to pay a penalty for failing to enroll in a health plan.

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Colorado controversy

The Colorado amendment makes clear that it applies only to state efforts to impose such requirements.

The amendments do not deal with some of the other preparations for the health law that are falling to states, such as the health insurance exchanges and the expansion of Medicaid that will begin in 2014.

"They're operating on two bandwidths," trying to oppose the federal law while also trying to implement it, said McGlynn. "Most of what states are going to have to do, they don't get to avoid through these amendments."

Colorado's situation is unique because its amendment was brought to the ballot through citizen initiative, and doesn't follow ALEC model legislation as closely. Its language allows for a much broader interpretation of the measure than other states have allowed for, argued Alec Harris, a policy analyst at the Colorado Center on Law and Policy, which opposes the amendment.

“It's getting billed as -- and people seem to view it as -- a referendum on federal health reform,” Harris said. “This has no ability to do anything about federal health reform.”

Instead, Harris says, the language of the bill, which prohibits "the state of Colorado, its departments and agencies" from requiring that a person participate in a health plan, could interfere with the state's auto-enrollment of Medicaid and Child Health Plan Plus beneficiaries.

"Quite a bit of this stuff doesn’t go away even if the Affordable Care Act is ruled … completely constitutional," Harris said. "It's the unintended consequences that we're worried about."

The president of the Independence Institute, which drafted the amendment, disagreed. “It doesn't stop the government from offering all sorts of alternatives and plans," said Jon Caldara. "… Really it means that the state legislature can't mandate that people should buy something they don't want to by without getting voter approval.”

© 2012 This information was reprinted with permission from KHN. Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.

Photos: Election night

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  1. Ohio Gov.-elect John Kasich celebrates a victory during the Ohio Republican Party celebration in Columbus, Ohio. (Tony Dejak / AP) Back to slideshow navigation
  2. Sen. Lisa Murkowski, R-Alaska, celebrates early election returns in Anchorage on Nov. 2. With Murkowski are from left, sons Matt and Nick Murkowski and longtime friend Hope Neslon. (Michael Dinneen / AP) Back to slideshow navigation
  3. California Gov.-elect Jerry Brown celebrates his election win during a rally with his wife, Anne Gust, in Oakland, Calif. (Paul Sakuma / AP) Back to slideshow navigation
  4. California Republican gubernatorial candidate Meg Whitman concedes to Democrat Jerry Brown during a campaign party in Universal City, Calif. (Kevork Djansezian / Getty Images) Back to slideshow navigation
  5. Supporters of California Republican gubernatorial candidate Meg Whitman react after conceding the Governor's race to Democrat Jerry Brown during a campaign party in Universal City, Calif. (Kevork Djansezian / Getty Images) Back to slideshow navigation
  6. Terri Sewell celebrate her victory with her cousin Kindall Sewell- Murphy as the first African American woman to be elected to for the 7th Congressional District seat in Alabama, with family and friends in Selma, Ala. (Butch Dill / AP) Back to slideshow navigation
  7. U.S. Senate candidate Sharron Angle with her husband, Ted Angle, concedes defeat to supporters at the Nevada Republican Party's election results party at the Venetian Resort Hotel Casino after she lost to incumbent U.S. Senate Majority Leader Harry Reid in Las Vegas, Nevada. (Robyn Beck / AFP - Getty Images) Back to slideshow navigation
  8. Supporters of Nevada Republican Party Senate candidate Sharron Angle react after news projected Democratic Party candidate Harry Reid as the winner of the race for the Nevada senate seat at the Nevada Republican Party's Election Night event in Las Vegas, NV. (Robyn Beck / AFP - Getty Images) Back to slideshow navigation
  9. Sen. Harry Reid, D-Nev., speaks during the Nevada State Democratic election night party after defeating Sharron Angle to win re-election, in Las Vegas. (Jae C. Hong / AP) Back to slideshow navigation
  10. Angela Webb of Alabama, left, and Leah Stith of Virgina react after U.S. Senate Majority Leader Harry Reid was announced as the winner over Republican challenger Sharron Angle at the Nevada State Democratic Party's election results party at the Aria Resort & Casino at CityCenter in Las Vegas. In one of the nation's most closely watched races, Reid retained his seat for a fifth term against Angle, a Tea Party favorite. (Ethan Miller / Getty Images) Back to slideshow navigation
  11. House Republican leader John Boehner breaks into tears during his speech as he addresses supporters at a Republican election night results watch rally in Washington, D.C. (Jim Young / Reuters) Back to slideshow navigation
  12. Supporters of Republican Senator Marco Rubio celebrate at his victory party in Coral Gables, Florida. (Gary I Rothstein / EPA) Back to slideshow navigation
  13. U.S. Senator John McCain is reflected on a teleprompter as he celebrates his victory with his daughter Meghan after defeating Democratic candidate Rodney Glassman in Phoenix, Arizona. (Joshua Lott / Reuters) Back to slideshow navigation
  14. Tammy Tideman of Mesa, Arizona and Carla Schwarte of Phoenix, Arizona hold "Fire Pelosi" sighn as Sen. John McCain speaks to the crowd during an Arizona Republican Party election night event in Phoenix, Arizona. (Laura Segall / Getty Images) Back to slideshow navigation
  15. Democrat Bill White walks off the stage after addressing his election night party at the Hilton Americas Hotel in Houston. The former Houston mayor conceded defeat to incumbent Republican Gov. Rick Perry in the race. (Smiley N. Pool / AP) Back to slideshow navigation
  16. President Barack Obama makes an election night phone call to Rep. John Boehner from his Treaty Room office in the White House residence. (Pete Souza / The White House) Back to slideshow navigation
  17. Tea Party Patriots at an election night party celebrate an announcement that Republicans have gained the majority in the House of Representatives in Washington, D.C. on Tuesday, November 2. (Ann Heisenfelt / AP) Back to slideshow navigation
  18. Terri Scofield of Medford checks her email for updates from the Board of Elections as she awaits elections results at the Suffolk County Democratic Committee Headquarters in Islandia, N.Y. (Kathy Kmonicek / AP) Back to slideshow navigation
  19. U.S. Senator Kirsten Gillibrand D-NY celebrates her re-election at a rally in New York. Disenchanted U.S. voters swept Democrats from power in the House of Representatives and increased the ranks of Senate Republicans on Tuesday in an election rout that dealt a sharp rebuke to President Barack Obama. (Shannon Stapleton / Reuters) Back to slideshow navigation
  20. Harris Blackwood, communications director for Georgia Gubernatorial candidate Nathan Deal, holds a broom, claiming a sweep for Republicans at the Georgia Republican Party's election night watch party in Atlanta. (Brant Sanderlin / Atlanta Journal & Constitution / AP) Back to slideshow navigation
  21. Republican U.S. Senate candidate Christine O'Donnell, a favorite among the conservative Tea Party movement, appears at an election night rally in Dover, Delaware. Democrat Christopher Coons won the U.S. Senate race in Delaware on Tuesday, keeping for Democrats a seat once held by Vice President Joe Biden. (Jason Reed / Reuters) Back to slideshow navigation
  22. Michele Bachmann and other Republicans gather at the Sheraton Bloomington to await election results. (Tom Wallace / Star-Tribune via AP) Back to slideshow navigation
  23. Kentucky Republican U.S. Senate candidate and Tea Party favorite Rand Paul acknowledges supporters with wife Kelley at his election night rally in Bowling Green, Kentucky, November 2. (John Sommers II / Reuters) Back to slideshow navigation
  24. U.S. Rep. Charles Rangel, D-N.Y., arrives to celebrate his re-election with supporters at the Martin Luther King Jr. Democratic Club in New York. (Jason Decrow / AP) Back to slideshow navigation
  25. Supporters Rachel Smith, right, and Genevieve Fugere watch the returns of Democratic Mike McIntyre D-N.C., 7th House District at his election night headquarters at the Holiday Inn in Lumberton, North Carolina. (Jim R. Bounds / AP) Back to slideshow navigation
  26. Election worker Janet Smith processes ballots at the King County Elections headquarter in Seattle, Washington. Among the races and ballot initiatives here is the US Senate race between incumbent Senator Patty Murray and challenger Republican and former gubernatorial candidate Dino Rossi, which is so close it could take several days to determine the winner. (Stephen Brashear / EPA) Back to slideshow navigation
  27. Republican candidate for governor of South Carolina, Nikki Haley, right, watches election results come in after the polls closed from a hotel restaurant with her husband Michael, left, son Nalin, 9, rear center, and daughter Rena, 12, right, in Columbia, South Carolina. (David Goldman / AP) Back to slideshow navigation
  28. Florida Governor Charlie Crist thanks supporters after conceding his defeat in his campaign for U.S. Senate to Republican Marco Rubio during a campaign party in St. Petersburg, Florida. (Brian Blanco / Reuters) Back to slideshow navigation
  29. Diana Reiner of Lansdale, Pennsylvania, left, and Keli Carender of Seattle, Washington, gather with a group known as the Tea Party Patriots for a 'Reclaiming the Capitol' rally at the US Capitol. The group planted a "special edition" of the historic Gadsden flag, the US flag, and the Tea Party Patriots banner into the ground in Washington, DC. Midterm elections are being held across the United States with many highly contested races that could threaten the political futures of numerous incumbents as well as change the balance in the Senate and House of Representatives. (Jim Lo Scalzo / EPA) Back to slideshow navigation
  30. Jamey Stehn leaves the Hope Social Hall after casting his ballot in Hope, Alaska. Stehn and the other 200 or so residents of Hope use the one-room log building built in 1902 as their polling place and activity hall. (Michael Dinneen / AP) Back to slideshow navigation
  31. Volunteer Justino Mora, left, joins members of the mariachi band "Los Munecos," and other Coalition for Humane Immigrant Rights of Los Angeles volunteers to urge immigrant voters to vote early in the California election in Los Angeles, California. The sign reads in Spanish: "Everybody to Vote." (Damian Dovarganes / AP) Back to slideshow navigation
  32. Congressman Joe Sestak speaks with a reporter after casting his ballot in Gradyville, Pennsylvania. Sestak faces Republican candidate Pat Toomey in the midterm election. (William Thomas Cain / Getty Images) Back to slideshow navigation
  33. Sloan Atkins, 6, left, helps her mother, Coleen Atkins, as her sister Reese Atkins, 4, helps their father Anthony Oliva, right, fill out their ballots in West Miami, Florida. (Joe Raedle / Getty Images) Back to slideshow navigation
  34. Sen. John McCain and his wife, Cindy, address the media outside a polling station in Phoenix as Apollo, a dog owned by McCain's son, Jimmy, licks the camera. (Matt York / AP) Back to slideshow navigation
  35. A member of the Maryknoll Fathers and Brothers fills out his ballot at a polling station inside the Maryknoll Fathers and Brothers Spellman Room in Ossining, New York. (Jessica Rinaldi / Reuters) Back to slideshow navigation
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