Could Giffords’ Seat be Declared Vacant?
posted at 9:11 am on January 18, 2011 by Jazz Shaw
The latest hot rumor making the rounds is that an obscure Arizona law has been dug up which could place Gabby Giffords’ House seat in peril while she struggles to recover from her injuries. From the Washington Post:
With doctors preparing Giffords for the rehabilitation stage of her recovery, the discovery Monday of a little-known statutory provision in Arizona law raised the prospect of a legal complication that, if left unamended, would endanger her hold on her seat.
A statute buried in state law says that if a public officeholder ceases to “discharge the duties of office for the period of three consecutive months,” the office shall be deemed vacant and that at such time, a special election could be called to fill the opening.
Fortunately, rather than simply leaving this inflammatory tidbit hanging out there, the article goes on to point out that such a move would be legally problematic even if someone were to attempt to apply it. The basis for this is that the House is the sole judge of election results and qualifications for its members.
Paul Bender, a constitutional scholar and a former dean of the Arizona State University College of Law, said that any determination of a vacancy would have to be made by Congress.
“The state has no right to say what the duties of a congresswoman are,” he said. “The state has no right to say when the office becomes vacant.”
That’s nearly correct, though a few situations can and do arise which complicate the matter from time to time. We learned that first hand when Eric “the ticklemaster” Massa resigned from his congressional seat in New York last year. There was no question that the seat was vacant, but an equally obscure statue in Empire State law declares that the vacant seat isn’t really vacant until the Governor officially proclaims it vacant. (Oddly enough, the law sets no time limit on how long the governor has to do this.) That rule – and the timing of the proclamation – was used by Governor Paterson to determine whether or not the seat would be filled by a special or normal, general election.
None of this should come into play regarding Congresswoman Giffords’ seat, however. Not only would it likely prove impossible to do in the face of an inevitable court challenge, but it would require someone – probably the governor or state attorney general – to step up and attempt it. And what person not looking to commit political Seppuku would move to evict one of the most closely watched, sympathetic figures in the nation just as she was struggling in her hospital bed to recover from an attack by a madman?
The projection from here is that this story is just as it first appeared – nothing more than a bit of catnip to fill a few column inches on a slow news day. Don’t expect that seat to go vacant any time soon.