Monday, January 17, 2011
The bad news: an Arizona statute states that failing to "discharge the duties of office for the period of three consecutive months" would render the Congressional seat in the Eighth District "vacant".
The good(ish) news: no one in Arizona politics seems eager to enforce that law anytime soon.
An informal adviser to Brewer said it was "unimaginable" that the governor would call for a special election to fill Giffords's 8th District seat if it is legally deemed vacant after 90 days. He said the most likely course of action would be calling for a special session of the state legislature to amend the law in such a way as to allow Giffords a longer period for recovery.
"This is a statutory provision that was written without vision of a case such as this and could lead to injustice," said the adviser, Jay Heiler, a former assistant attorney general and chief of staff to former Republican governor Fife Symington.
However, a former dean of the Arizona State University College of Law doesn't believe that's the case:
Paul Bender said a report published in the Washington Post is based on a flawed premise of the scope of Arizona law. The paper said Giffords' office could be declared vacant under state law if she is absent for at least three months.
"When a vacancy exists is up to Congress,'' Bender said.
He acknowledged state law spells out what defines a vacancy under
Arizona law for a public official. One provision declares an office vacant if "the person holding the office ceasing to discharge the duties of office for the period of three consecutive months."
Bender noted, however, the language is located in Title 38 of the Arizona Revised Statutes. And that entire section deals with public officers as defined by state law, meaning statewide and local officials.