State law can't be used to oust Giffords

Reports to contrary are wrong, say election office and legal expert
2011-01-18T00:00:00Z State law can't be used to oust GiffordsHoward Fischer Capitol Media Services Arizona Daily Star
January 18, 2011 12:00 am  • 

PHOENIX - U.S. Rep. Gabrielle Giffords can't be forced from office for not doing her job while she is recovering, at least not by state law.

Matthew Benson, spokesman for Secretary of State Ken Bennett, the state's chief elections officer, said an Arizona law allowing a public office to be declared vacant if someone is absent for three months "doesn't apply to federal offices."

And Paul Bender, the former dean of the Arizona State University College of Law, said speculation to the contrary is based on a flawed reading of the Arizona law.

An aide to Gov. Jan Brewer said the whole question appears to be a media creation that has been blown out of proportion. Paul Senseman said the only queries the governor has received about the statute have been from reporters.

The issue arose Monday when the Washington Post said Giffords, recovering from a gunshot wound to the head at University Medical Center in Tucson, might be removed from office because of the law. The report, which gained Internet traction, contended the statute allows the state to conclude an office held by a federal official from Arizona is vacant after three months of absence.

The law does specify what constitutes a vacancy - including "the person holding the office ceasing to discharge the duties of the office for the period of three consecutive months."

But Benson pointed out that is from Title 38 of the Arizona Revised Statutes, which include a definitions section that specifies Title 38 applies to "any office, board or commission of the state, or any political subdivision thereof." That would include local elected officials but not those holding federal office.

"A vacancy would have to be declared by the U.S. House, not the state of Arizona," Benson said.

Bender said the legal issues are clear. "When a vacancy exists is up to Congress," he said.

Besides the definition of who the law applies to, Bender noted that federal courts have previously limited the ability of states to decide who can serve in federal office. That occurred most notably in 1995, when Arizona and 22 other states adopted term limits, which the U.S. Supreme Court ruled could not apply to members of Congress.

Senseman said any speculation about the law is premature at best.

"With Representative Giffords' tremendous progress, an answer to many prayers, we've deemed it to be far too early and entirely inappropriate to speculate, analyze or consider," he said.

Bender said even if the law did apply, the question likely is moot because her seat would be filled in a special primary and general election, in which she could run again, and it would remain to be seen if anyone would run against her.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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