For a few hours on Monday, fears abounded that Gabrielle Giffords could have potentially been stripped of her seat. Section 38-291 of the Arizona Revised Statutes states that an office can be declared vacant if the officeholder ceases to "discharge the duties of the office for the period of three consecutive months." Fortunately, Governor Jan Brewer seems to have kiboshed such talk.
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.
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"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.
Good for Brewer. Even considering such a move would be a slap in the face to the Giffords family.
It doesn't look like anyone in the Arizona legislature is inclined to take such a step either.
Although the legislature is controlled by a Republican super-majority in both chambers, there are no indications that lawmakers would pursue any action that would deny Giffords her seat.
"We should let people recover before anybody makes a judgement about whether she's fit to serve," said state Sen. Frank Antenori, a Republican who represents part of the Tucson area. "I don't hear anybody making those discussions."
Beyond considerations of decency, such a move may not be constitutional. While there is precedent for a congressional seat being declared vacant for medical reasons (it happened in 1981, when Gladys Spellman's seat in Maryland was declared vacant; Steny Hoyer now holds that seat), it looks like only Congress has that power.