Representative Gabrielle Giffords is smiling and giving neck rubs, small gestures that could be deemed almost-miraculous as Gifford was shot in the head by Jared Lee Loughner in Tucson, Arizona just 11 days ago. The news of Giffords’ progress—including her breathing on her own, her responsiveness, and her making it past the point when her brain could swell—has provided hope amidst a terrible tragedy.
But optimism around Giffords’ recovery was clouded a bit this week with buzz over the possibility of Giffords’ seat being deemed vacant and therefore subject to a special election. At issue was an Arizona statute that includes the following definition of public-office vacancies: “The person holding the office ceasing to discharge the duties of office for the period of three consecutive months” (§38-291).
According to experts, though, the controversy is nothing more than a “media creation,” and it is the Constitution, not state law, that governs Giffords’ Congressional office. "You have a history of interpreting these constitutional decisions and the courts have consistently struck down state laws that have tried to impose additional qualifications beyond those that are set forth in the Constitution,” says Brian Svoboda, an attorney for the Democratic Party.
Also weighing in on the issue is constitutional-law expert and former dean of Arizona State University College of Law, Paul Bender, who concludes, "A vacancy would have to be declared by the U.S. House, not the state of Arizona.” And as Bender points out, the Arizona statute falls under Title 38 of Arizona Revised Statutes. This section defines “office” as "any office, board or commission of the state, or any political subdivision thereof . . .” (emphasis added). Thus, the statute applies to local public offices, not federal offices.
So it appears the buzz is a lot of noise over nothing at the moment.
The Washington Post Source
East Valley Tribune Source
Arizona Revised Statutes §38
Arizona Revised Statutes §38-291
Arizona Revised Statutes §38-101
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