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Posted Jan 17, 2011, 4:08 pm
Any attempt to declare the congressional seat of U.S. Rep. Gabrielle Giffords to be vacant based on state law would probably run afoul of the U.S. Constitution.
Arizona Revised Statute 38-291 says public offices may be declared vacant if their holders fail to discharge their duties for 90 days.
But Article 1, Section 5 of the U.S. Constitution says "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."
Though Giffords' recovery has been "miraculous," her doctors say she must undergo a lengthy term of rehabilitation, and it's unknown how long it will be before she can resume daily duties.
The Arizona statute is vague on what "duties" are required:
An office shall be deemed vacant from and after the occurrence of any of the following events before the expiration of a term of office:
7. The person holding the office ceasing to discharge the duties of office for the period of three consecutive months.
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Title 38 of Arizona law concerns itself with state and local officials, not federal officials.
It says that an "office" is any "office, board or commission of the state..." and "'Officer' or 'public officer' means the incumbent of any office, member of any board or commission."
"With Rep. Giffords's tremendous progress, an answer to many prayers, we've deemed it to be far too early and entirely inappropriate to speculate, analyze, consider" doing anything about the law, Gov. Jan Brewer's spokesman, Paul Senseman, told the Washington Post on Monday.
The Post published a that implied Giffords was in danger of losing her seat because of the law.
No one from Giffords' office was available for immediate comment.
Mo Udall hospitalized for 4 months
Arizona has had a representative who was unable to work for a long period before, without attempting to invoke the vacancy law.
In 1991, then-Rep. Mo Udall was hospitalized for nearly four months, until he resigned on May 4.
Udall, who had Parkinson's disease, fell down the stairs of his McLean, Va., home on Jan. 6. He suffered several broken ribs, a fractured shoulder blade and a concussion.
Udall announced his retirement on April 19 of that year.
A.R.S. 38-291 has been in effect since at least 1970.
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Federal courts have found that states are powerless to set limits on those serving in federal office above those found in the Constitution and federal law.