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.


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New left meme….Sarah Palin broke in and changed the wording of the law on Saturday night.

csdeven on January 18, 2011 at 9:17 AM

Republicans don’t need to touch this with a 10 foot pole. Pray that no one is that stupid.

BuzzCrutcher on January 18, 2011 at 9:17 AM

Best wishes to the congressman, but this leaves the people of her district without representation. (Her offices may function, but I don’t think anyone can vote in her stead.)Being consistent – It was also wrong to allow Sen’s Thurmond, Byrd, Kennedy to continue serving when their mental capacity was diminished.

Larr on January 18, 2011 at 9:18 AM

In the mean time, the people of Giffords congressional district have no representation in congress.

Skandia Recluse on January 18, 2011 at 9:19 AM

Alas, too bad for us in the 8th District lacking representation. As much as the media has lionized Giffords as some moderate, she was a rank and file Dem who voted for O-care and switched her vote on the stimulus after sweeteners were added. Classic politician. As for responding to her constituents, all she sent me was a form letter—guess she was too busy chitchatting with crazy grammar people and hobnobbing with folks in favor of de-earing conservatives.

andy85719 on January 18, 2011 at 9:21 AM

The media just can’t let this story go….

search4truth on January 18, 2011 at 9:22 AM

She was elected from the state of AZ, why does the Fed govt get to decide if the seat is vacant or not? This law has been on the books in AZ for a long time and no one has challenged it. The uproar would be if Gov Brewer appointed an R to temporarily replace her until such time as she was able to return to DC. Since her recovery has been so closely watched and she seems to be doing so well, who decides that a decent amount of time has passed to replace her if she doesn’t recover to the point of being able to resume her duties? There are no guarantees in life, even a political life. This is not her seat, it is AZs seat.

Kissmygrits on January 18, 2011 at 9:22 AM

God bless her and a speedy recovery etc., but she’s a Democrat who’s not voting. There’s no reason to poke a stick into this and wiggle it.

Akzed on January 18, 2011 at 9:23 AM

Now things are getting complicated. Are we supposed to blame Bush or Palin for this one?

bitsy on January 18, 2011 at 9:24 AM

Never happen anyway. Latest word is that Giffords will be out of the hospital within a few weeks if not days, and begin rehab. All they have to do is fly her to DC, wheel her onto the floor of the House chamber, have her answer one roll call, and take her back to rehab for another 2 months, 29 days.

Look at what they did with Kennedy and Byrd.

The Monster on January 18, 2011 at 9:25 AM

I’ve always wondered about this. For example, when guys like McCain or Obama are campaigning during the time when they have an actual job they are pulling in a paycheck for, then who, if anyone, takes care of the business of their state in absentia?

ted c on January 18, 2011 at 9:26 AM

They’ll just ‘deem’ her healthy!

search4truth on January 18, 2011 at 9:26 AM

It’s too bad captain ‘present’ wasn’t held to this standard.

cntrlfrk on January 18, 2011 at 9:26 AM

In the mean time, the people of Giffords congressional district have no representation in congress.

Skandia Recluse on January 18, 2011 at 9:19 AM

Given my congresswoman’s prior positions and votes (e.g., yes on stimulus, yes on TARP, yes on bailouts, yes on Obamacare, no on funding border fence, etc.), many of us here in Giffords’ district feel that that is not necessarily a bad thing.

AZCoyote on January 18, 2011 at 9:26 AM

There is absolutely no way whatsoever that the Republican majority will even consider vacating the seat. Even establishment Republicans aren’t that tone deaf.

dczombie on January 18, 2011 at 9:28 AM

Appoint Sarah to the office, interim…just the suggestion would be entertaining enough for several weeks.

right2bright on January 18, 2011 at 9:28 AM

Just let her recover….we shall see soon enough if she able perform her duties….the gop has the votes in the house

cmsinaz on January 18, 2011 at 9:29 AM

Appoint Sarah to the office, interim…just the suggestion would be entertaining enough for several weeks.

right2bright on January 18, 2011 at 9:28 AM

Are you kidding, Lefty heads would start to explode and there would be green slim everywhere.

SHARPTOOTH on January 18, 2011 at 9:31 AM

Governors can appoint people to fill the remainder of Senate terms. But vacancies in the House MUST be filled by election (special election in this case). If the republicans so much as nominate a candidate, much less actively campaign, the media bias will make last week look like a cakewalk.

BuzzCrutcher on January 18, 2011 at 9:31 AM

In the mean time, the people of Giffords congressional district have no representation in congress.

Skandia Recluse on January 18, 2011 at 9:19 AM

That’s just silly. Most of the things that the average constituent needs from their member of Congress – casework stuff, help fighting a federal agency on something, etc. can be done by her staff. The only thing she won’t be doing for a while is voting on the floor. And with the numbers in the house right now, her non-vote won’t likely change the outcome of any legislation.

dczombie on January 18, 2011 at 9:32 AM

Touché AZCoyote–she’s a lib Dem who plays lip service to the moderates. Her campaign attacks on Jesse Kelly were atrocious–accusing him of want little old ladies to die. Ugh.

andy85719 on January 18, 2011 at 9:32 AM

Fortunately

I wouldn’t use that adjective. The statute is there for a good reason. Of course, the GOP would be committing suicide by moving to enforce it… but there is nothing in the law that says “if you can’t do your job, but everybody feels sorry for you, you can continue to not do your job.”

Since she was working in her capacity as a Representative, I’d let her keep her benefits, but honestly, if her recovery is said by her doctors to be 18 months, why should the people of AZ wait? She can run again in 2012.

mankai on January 18, 2011 at 9:34 AM

That’s just silly. Most of the things that the average constituent needs from their member of Congress – casework stuff, help fighting a federal agency on something, etc. can be done by her staff. The only thing she won’t be doing for a while is voting on the floor. And with the numbers in the house right now, her non-vote won’t likely change the outcome of any legislation.

dczombie on January 18, 2011 at 9:32 AM

Bingo. The only reason this is even being discussed is that the media is trolling for a conservative stupid enough to take the bait.

BuzzCrutcher on January 18, 2011 at 9:37 AM

Are you kidding, Lefty heads would start to explode and there would be green slim everywhere.

SHARPTOOTH on January 18, 2011 at 9:31 AM

It would only be green if one were colorblind (think watermelons).

steveegg on January 18, 2011 at 9:42 AM

SHARPTOOTH on January 18, 2011 at 9:31 AM

About that explosion thing don’t you think it would really be an implosion as a result of the vacuum leak between there ears?

chemman on January 18, 2011 at 9:45 AM

Given that it is a state law, I doubt it applies to federal offices.

Besides given her rate of recovery, I would expect her to be able to be wheeled in for votes by then at the very least.

Slowburn on January 18, 2011 at 9:45 AM

A point of order – if Giffords were a Republican, who here thinks the Democrats and their presstitute allies (though I repeat myself) would not be chomping at the bit for a cheap chance at the seat, even if the remainder of the partisan politics were the same?

Anyone?

Bueller?

Didn’t think you would be so naive as to think that they would show any honor.

steveegg on January 18, 2011 at 9:46 AM

WAY O/T I just tuned into the radio and found out that Royal Marshall of the Neal Boortz’s show passed away at 43 years of age on Saturday.

Cindy Munford on January 18, 2011 at 9:49 AM

. As for responding to her constituents, all she sent me was a form letter

Outrageous!

YYZ on January 18, 2011 at 9:51 AM

OT, germane to the recent prp rally in Tuscon:

Here’s how leading Democrats mourned Richard Holbrook.

Akzed on January 18, 2011 at 9:56 AM

Didn’t think you would be so naive as to think that they would show any honor.

steveegg on January 18, 2011 at 9:46 AM

Just because they have no honor is no reason for us to also be dishonorable.

dczombie on January 18, 2011 at 9:57 AM

I imagine that that seat is her’s as long as she wants it. Just like the press to try stirring the pot.

Cindy Munford on January 18, 2011 at 9:57 AM

Bingo. The only reason this is even being discussed is that the media is trolling for a conservative stupid enough to take the bait.

BuzzCrutcher on January 18, 2011 at 9:37 AM

Bingo. In a couple of hours the liberal media will be telling us that this is a ‘Republican initiative’.

slickwillie2001 on January 18, 2011 at 10:09 AM

Appoint Sarah Bristol to the office, interim…just the suggestion would be entertaining enough for several weeks.
right2bright on January 18, 2011 at 9:28 AM

Are you kidding, Lefty heads would start to explode…
SHARPTOOTH on January 18, 2011 at 9:31 AM

FTFY. Heads off a residency question, eh?
/.

CaveatEmpty on January 18, 2011 at 10:19 AM

New left meme….Sarah Palin broke in and changed the wording of the law on Saturday night.

csdeven on January 18, 2011 at 9:17 AM

A most sardonic LMAO.

98ZJUSMC on January 18, 2011 at 10:33 AM

Meggie Mac!

mankai on January 18, 2011 at 10:34 AM

A point of order – if Giffords were a Republican, who here thinks the Democrats and their presstitute allies (though I repeat myself) would not be chomping at the bit for a cheap chance at the seat, even if the remainder of the partisan politics were the same?

Anyone?

Bueller?

Didn’t think you would be so naive as to think that they would show any honor.

steveegg on January 18, 2011 at 9:46 AM

If Giffords were a Republican the seat would have already been declared vacant.

Cylor on January 18, 2011 at 10:35 AM

If Giffords were a Republican the seat would have already been declared vacant.

Cylor on January 18, 2011 at 10:35 AM

Not sure if even they would go that far yet, but I do think they would be discussing diminished capacity, in a way to plant the seed in the public consciousness.

98ZJUSMC on January 18, 2011 at 10:40 AM

It’s a sad day when Congress gets to make a determination about one of a state’s own representatives. When Splash was out being treated for cancer, he kept his seat. Yet when it came time to fill it, the left was screaming about having to wait for an election, rather than an appointment by the governor (seeing as Mass CHANGED the law twice for political benefit). Seems that dear ol’ Mass. needed a senator NOW. Well were was their concern when that senator was out FOR MONTHS?

Determination should be made at the state level.

GarandFan on January 18, 2011 at 10:45 AM

It is all up to Giffords now, no one is going to question her fitness to serve if she says she can, and she will feel pressure to stay in office if she is able. If she does step down, Republicans are better off with a Democrat caretaker than with being seen as profiting from the work of a murderous psychopath. In that instance, in 2012 she will either endorse her temporary caretaker as her permanent successor, virtually handing him the election, or she will run and win in a walk.

Her 2012 win is also a foregone conclusion if she stays in office now and, again, she would feel pressure from her party to do so. Strategy-wise, local Republicans should consider if co-nominating her with Democrats in 2012 would not only look classy, but prevent harm to their Senate and Presidential candidates in her district.

So there is no point in seriously running a Republican in AZ-8 until 2014. By then the pressure will be off Giffords if she does not want to stay, in which case the election may center on who shares her values and, more appropriately, those of the people of the 8th District. If she stays the Republicans should forcefully counter any objections to opposing her on the issues: We elect representatives, not life peers; a healthy democracy requires competition (except possibly in 2012 and the 2011 special election).

/ exit Machiavelli mode

raybury on January 18, 2011 at 10:47 AM

Are you kidding, Lefty heads would start to explode and there would be green slim everywhere.

SHARPTOOTH on January 18, 2011 at 9:31 AM

That green slime is certainly toxic and would require clean up by a hazardous waste company.

Finally, Democrats would be creating jobs!

Let’s go forward with that.

turfmann on January 18, 2011 at 10:51 AM

Actually, that law prof is correct – the vacancy would have to first be declared by Congress. The Rules of the House explicitly deny the states any role in actually declaring a vacancy, though as Jazz noted, once one is declared by the House, the states are free to apply any definition they wish.

Further, the Arizona Daily Sun reports that Arizona Secretary of State Ken Bennett has stated that Arizona’s “three-month-vacancy” law does not apply to federal offices.

steveegg on January 18, 2011 at 10:57 AM

Republicans don’t need to touch this with a 10 foot pole. Pray that no one is that stupid.

BuzzCrutcher on January 18, 2011 at 9:17 AM

Fear Not. The Repubs are really good at doing nothing.

Geochelone on January 18, 2011 at 11:00 AM

No one should even CONSIDER declaring this seat vacant until three months have elapsed since the attack on Rep. Giffords, which will be early April. At the rate she is recovering, by then she may very well be able to fully discharge her duties as Representative of Arizona’s 8th district, i.e., able to understand what is debated around her, and to speak coherently about the issues debated, and vote what she believes to be the will of her constituents. If she does not recover the ability to speak coherently by then, only THEN should any decision be made about declaring the seat vacant.

Rep. Giffords, who happens to be a Democrat, was shot by an apolitical obsessed nutjob, and the MSM went whole-hog blaming the Tea Party and conservatives until it became evident that Loughner had no political ties whatsoever. But if someone tries to exercise this statute before the three months are over for political reasons, what is to prevent hotheads on the left or the right from shooting Congress(wo)men or Senators with whom they disagree, with the idea of getting them replaced in three months instead of two years (by election)?

We don’t want to go there!!!

Senator Tim Johnson (D-SD) suffered a stroke and was unable to vote for much longer than three months, yet he eventually recovered and won re-election to the Senate.

It is true that the people of AZ-8 are not represented in the House right now, but a majority of them voted last November for Gabrielle Giffords. It would be unfair to them to replace her (even temporarily) by someone from the opposite party. Let the three months go by, and let Rep. Giffords do her job if she can, and if she realizes that she cannot, she probably has the honor and dignity to resign and ask for a special election to replace her with the voters’ choice.

Steve Z on January 18, 2011 at 11:09 AM

For the love of everything holy, please don’t take the bait!

Dark-Star on January 18, 2011 at 11:21 AM

We KNOW what the Democrats would do if the tables were turned. They would hold the special election, outrage be damned.

IronDioPriest on January 18, 2011 at 11:28 AM

Given my congresswoman’s prior positions and votes (e.g., yes on stimulus, yes on TARP, yes on bailouts, yes on Obamacare, no on funding border fence, etc.), many of us here in Giffords’ district feel that that is not necessarily a bad thing.

AZCoyote on January 18, 2011 at 9:26 AM

+1000 – my thoughts exactly.

Equality 7-2521 on January 18, 2011 at 11:28 AM

Paul Bender, a constitutional scholar…said: “The state has no right to say what the duties of a congresswoman are,” he said.

This is, with all due respect, an INCREDIBLY moronic thing to say.

logis on January 18, 2011 at 11:53 AM

Steve Z on January 18, 2011 at 11:09 AM

This is a reasonable, articulate, appropriate, and correct premis. However, if a conservative representative should be shot please don’t use this logic as the left will crash the servers rebutting it.

chicken thief on January 18, 2011 at 11:57 AM

I heard she is already sitting up in bed and voting present.

Osis on January 18, 2011 at 12:38 PM

Senator Tim Johnson (D-SD) suffered a stroke and was unable to vote for much longer than three months, yet he eventually recovered and won re-election to the Senate.

Steve Z on January 18, 2011 at 11:09 AM

Actually, Johnson is still unable to do any public speaking and, as far as I know, hasn’t recovered much if any of his faculties. He won re-election in spite of the fact that he couldn’t give a coherent speech or debate his opponent. Dems wailed and moaned about how Unfair it was to expect him to have to do so. The press covered for him here and the Democratic machine brought in the win for him. It is widely known that he is just a “place holder” until his son is ready to run for the seat. The Republicans couldn’t even find a decent candidate to run against someone who couldn’t speak or debate. Sad. Real sad.

Lily on January 18, 2011 at 12:40 PM

The Republicans couldn’t even find a decent candidate to run against someone who couldn’t speak or debate. Sad. Real sad.

Lily on January 18, 2011 at 12:40 PM

Dare I mention Mel Carnahan?

factoid on January 18, 2011 at 12:44 PM

Two weeks ago the Tucson area was represented by a Democrat. If there’s a special election in the spring, the voters may elect another Democrat, especially with the sympathy vote. Right now you have a nonvoting Democrat. From a Republican point of view, the status quo is not so bad.

factoid on January 18, 2011 at 12:50 PM

Appoint Sarah Bristol to the office, interim…just the suggestion would be entertaining enough for several weeks.
right2bright on January 18, 2011 at 9:28 AM

I like it.

Will somebody leak a faked email from McCains’ Senate account, someone smarter than I?

It would certainly pre-occupy the MSNBC tribunal for a while.

BobMbx on January 18, 2011 at 12:52 PM

We KNOW what the Democrats would do if the tables were turned. They would hold the special election, outrage be damned.

IronDioPriest on January 18, 2011 at 11:28 AM

Yeah…after all, she’s just a blob of cells right now.

BobMbx on January 18, 2011 at 12:54 PM

Fortunately, rather than simply leaving this inflammatory tidbit hanging out there

If we fought dirty like many liberals do, we certainly would just leave that tidbit out there.

scotash on January 18, 2011 at 1:45 PM

Obama and Hillary were not in their seats for almost two years while they were on the road with the campaign and they got paid. Something inside me says this is wrong.

mixplix on January 18, 2011 at 9:14 PM

Has Tim Johnson of South Dakota spoken in public since his stroke?

I’m a little suspicious of the contradicting statements these people make. wasserman schultz and the senator from new york act like they had a tea party with Giffords last weekend but her husband says he’s sure she recognizes him because she played with his ring? Has she said anything yet? I have a feeling that as with everything, this poor woman is being used by the demofascists. They probably told the husband that they needed to keep her condition underwraps because they don’t want the republican governor choosing a replacement. The doctors cannot say anything that is not approved by the family. This woman was shot through the brain, it’s miraculous that she survived. I will pray that she continues doing well and say a prayer of thanks when she gives her first press conference but until then I’m not holding my breath. I don’t intend to sound cold but my bet is that she never casts a vote on the floor of the house again.

peacenprosperity on January 18, 2011 at 10:26 PM

If someone tried to enforce that law, I’d hope (and I think it would happen) that Speaker Boenher would declare that Rep. Giffords’ duties are to make progress in her recovery, and that she is carrying them out satisfactorily. Get well soon.

Glenside on January 19, 2011 at 12:17 AM