Arizona statute could endanger Gabrielle Giffords's hold on seat

[RamboLiberal]

Source: Washington Post

Even as Rep. Gabrielle Giffords shows signs of a near-miraculous recovery, with doctors on Sunday upgrading her condition from critical to serious, a little-known statutory provision in Arizona state law could endanger the Democratic congresswoman's hold on her seat through what doctors say will be a protracted medical struggle.

A statute buried in Arizona law states 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 - at such time, a special election could be called to fill the vacancy.

The law does not specify what those duties entail - it does not state, for instance, that a vacancy is declared if a member of Congress does not cast votes in Washington during a three-month period. And it could not be determined what Giffords's legal recourse might be should she be incapacitated for more than 90 days.

Still, the discovery of the statute has created an unforeseen legal complication for Giffords and state officials nine days after a gunman attempted to assassinate the congresswoman outside a Tucson supermarket, killing six people and wounding Giffords and 12 others.



Read more: http://www.washingtonpost.com/wp-dyn/content/article/2011/01/17/AR2011011702542.html?hpid=topnews

[CaliforniaPeggy]

1. Oh, for fuck's sake.

And I just know the tea partiers will push this one.

C'mon, Gabrielle!

Get going!

[madmax]

2. In view of the events I'd like to see them

try to make that one fly. They'd pass a resolution or something.

[bluestateguy]

3. I don't want to hear about this right now

Poof!

There it just went away.

[EFerrari]

4. These @ssholes never stop. n/t

[TheMadMonk]

43. Maybe yes. Maybe no. I can certainly see the point of the law.

Whilse she remains incapacitated, either she is a legislative liability. Or at best, if her vote is "paired" and thus nulified, she offers no actual legislative representation.

I haven't seen this question asked or answered yet: For all the reports on the immediate progress of Ms Gifford's health, I have seen nothing to suggest what her long term prognosis is. What exactly are her chances of a full recovery? What degree of long term congnitive impairment is likely? Just how likely is it that she will ever be able to resume her seat?

Right now, not in 2-3 months, is the time to decide whether that special election is going to be necessary. If she has enough grey matter left to endorse a successor, then that may well be the best service she can do as a progressive. Leaving matters until the laws force a decision, and allows the party the power of endorsement is the perfect way of putting her seat up for grabs.

[Canuckistanian]

5. Oh, great

Another election battle in Gifford's district. This year.

[Tx4obama]

6. Congress' rules trump state rules regarding reps and senators.

Once a person has been sworn into congress, the rules of the congress dictate when a congressperson can be unseated.
I think her seat is safe.

[pinto]

8. Good point. I would assume it's a federal call, not a state call. (Tho I'm not sure...)

:hi:

[Davis_X_Machina]

15. New Jersey's law....

...calling for a state election to recall a Senator, where there is no federal provision to do so, was killed by their state supreme court, so it never was tested at the Federal level.

[pinto]

17. Interesting fed/state question. NJ court seemed pretty clear -

"The court finds that ... the federal Constitution does not allow states the power to recall U.S. senators," Chief Justice Stuart Rabner wrote in a majority 4-2 opinion. :hi:

[cbdo2007]

7. Ok, so get her in there once every 3 months for a vote. Seems doable.

[FarPoint]

9. Then let's look at the Worker's Compensation law...

First, she was injured in the course of employment, thus a work injury disability...then, one can not be terminated from employment due to the work injury in most all states as well as Federal....So, let's look at this angle too.

Also, she is a Federal employee as a US Congresswoman...not a state representative of Arizona State House.

[pasto76]

22. thats probably the most salient point

she represents arizona, but is a federal employee.

[FarPoint]

34. I see your full

of healthy feedback..........keep up the effort

[hugo_from_TN]

45. Congress is exempt from federal worker laws

[purrFect]

10. what ill-gotten fruit is born of an assassins hand

:shrug:

[struggle4progress]

11. Arizona statute can't trump federal law on this, I think

[ElsewheresDaughter]

12. her votes in the House could be cast by proxy

[Imajika]

18. How exactly can she vote by proxy?

We are now going to be down one Democratic House vote till Giffords can return to Washington. As far as I know she can NOT vote by proxy nor can she vote from the hospital.

Granted, she was a Blue Dog and would have voted with the Republicans quite often anyway, but as best I can tell we are now down to 192 votes instead of 193 (the GOP has 242) in the House.

[ElsewheresDaughter]

26. it was permitted in the U.S. House of Representatives permitted proxy voting until 1995...

when new rules prohibited the practice.

I didn't know the rules had changed

[karynnj]

38. I don't think so - only committee votes can be by proxy

[bbinacan]

13. Won't happen. n/t

[Tx4obama]

14. Here's something regarding the Senate (not the House)

Excerpt:

According to the Senate historian, Richard Baker, vacancies can occur only "by death or resignation." He added, "Nobody has the power to determine a vacancy for a person who is still living."

The Senate had last faced a situation such as this in 1969 when Sen. Karl Mundt (R-S.D.) suffered an incapacitating stroke. In that case, Mundt remained in office until his term expired in January 1973.

http://www.sourcewatch.org/index.php?title=Tim_P._Johnson

[Kingofalldems]

16. Filthy teabaggers will be all over this

[Imajika]

20. They don't need the vote...

They have an overwhelming majority in the House, and the teabaggers know they'd probably lose a special election because the emotion of the day would carry over to another Democratic candidate.

It is in the teabagger/GOP interests to see Giffords remain in the hospital for the entire term as it just has the effect of depriving Democrats of a vote.

If Giffords can not return to Congress, it would be in the Democratic party's interests to have Giffords resign and for her to hand pick someone to run for the seat in her place. Whoever she chose would win the Democratic nomination for the special election easily and almost certainly win the district out of sympathy alone (assuming that person generally held her views).

[Tx4obama]

19. The 'House' rules should state what the definition of what constitutes a 'vacancy'

I have not yet found the House rule, but being in the hospital would not be considered her 'vacating a seat' - I believe.
The House is probably like the Senate, and unless a person dies or resigns they they still hold the seat and the seat would not be considered vacated.

The 'state' would only have jurisdiction to 'fill' the seat once it has been vacated by death or resignation.
In this instance the seat has not been vacated.

[sellitman]

21. She is a Blue Dog

Most of the time she would of probably voted with the Rethugs anyhow.

I'm more worried that she gets her health back.

[Name removed]

30. Deleted sub-thread

Sub-thread removed by moderator. Click here to review the message board rules.

[SlimJimmy]

31. Self delete

[Name removed]

32. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[bergie321]

23. If any Republican

Ran in that special election, I would work 24-7 to defeat them and make sure their name was tarnished forever.

IF there is a special election, it should go to one of Gabby's senior staffers.

[DissedByBush]

24. Think about the people

They elected her to do their business, to represent them.

And if she can't? Do you leave the people without someone to represent them?

I hope she recovers quickly so she can resume business.

[Tx4obama]

27. Depends on the rules of the House.

Only the House can say what determines when a person has vacated their seat.
There isn't even a rule that say a member of Congress has to vote.
Think about this: A person could run, get elected, get sworn in, and then NOT vote for two years in the House if they decided not to.
Everything boils down to 'what the House rules say'.
So, if she's unable to vote for several months or even a year - there is no rule regarding that and she would still hold her seat.

[ProudProgressiveNow]

25. Just to sign a letter

to her constituents would be part pf her duties. Get well Gabby. She is voice of reason here in Az.

[Tx4obama]

28. Ah, that's a good point. And a good loophole - to show she's working for her constituents! n/t

[Igel]

29. Probably not.

The difficulty is deciding if and when she should resign or be considered resigned.

Her constituents aren't currently represented. How "recovered" her recovery will be is a mystery--the bar is low for "miraculous" when it comes to injuries like this. She might be the nice lady that sits in the House, nods and smiles, and from time to time asks what's for lunch only to be told that it's almost dinner time. She might be competent for some things, but when asked what legislation means responds in short sentences of one-syllable words and clearly has even less understanding of what she's voting on that most representatives do.

But there's no way to replace her unless she declines to serve or resigns. She could go into a coma for the rest of her term and that's that.

But, as the WaPo itself pointed out, it's too early to even think about seriously discussing this. Ultimately, I have to assume that if she's sufficiently recovered she'll do the responsible thing and seriously consider her actual abilities and the time-course of any improvement. Then she'll decide if she thinks she's recovered enough to resume her duties, if she'll recover enough to resume her duties soon, or won't recover enough quickly enough to actually meet her responsibilities and will then resign. If she never thinks about the issue, she simply shouldn't have been elected in the first place.

[defendandprotect]

33. Given that Giffords was taken out by a gunman who didn't want her to serve ... they should HOLD

on that one!

[DumpDavisHogg]

35. The GOP should forfeit their right to field a candidate

Their rhetoric caused the shooting, so they should have to sit this one out.

[Name removed]

36. Deleted message

Message removed by moderator. Click here to review the message board rules.

[littlewolf]

37. ok folks ...

Yes there is a law inplace .. so what ..
is ANYONE anywhere suggesting they apply
this statute ...
I haven't seen anything anywhere ....
if anyone has .. please provide info ...

[w4rma]

48. You can bet that some Repuke will try to use it if it becomes available as a weapon. (nt)

[kag]

39. Giffords seat at risk under Arizona law

Source: CNN

Brian Todd of CNN is reporting that under Arizona law, if a Congressional seat is vacant for three months a special election can be held to replace her. Both James Carville and Ed Rollins commented that they don't believe anyone will suggest it seriously.

Read more: fords.seat.endangered.cnn?hpt=T2

---

This was a piece on Wolf Blitzer's show on CNN. There was no text, so I just wrote the gist of what they said. (I've never posted to Latest Breaking before, so sorry if I got any of the rules wrong.)

I know Carville and Rollins don't think it will really happen, but I don't put anything past the Tea Party.

[babylonsister]

40. Thanks for sharing; I didn't know this. I agree w/Carville and

Rollins; because she didn't choose to vacate her position, I can't imagine anyone would actually try to enforce this.

[virgogal]

41. I agree---it would be cruel,but how long should the people

of Arizona go unrepresented?

What a sad,complicated situation.

[babylonsister]

42. Do you remember the senator (I think) who had a brain

aneurism? From MN, or WI, up there somewhere? I seem to think he was out for months, but his seat was held. Last name Johnson maybe?

[Alexander]

46. Senator Tim Johnson of South Dakota.

He did suffer a brain aneurysm and was in hospital for quite some time.

I imagine South Dakota laws must be different than the Arizona law that is currently being discussed.

[babylonsister]

47. Thanks, yes, Tim Johnson. nt

[donheld]

44. Let the sheriff win that job.

[Lochloosa]

49. Giffords could lose her seat if she does not recover by April

Source: Populist Examiner


Gabrielle Giffords will need to recover by April, or else a statute buried in state law says she could lose her seat.

Typically, it's an open question. The statute says 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.

The law doesn't specify what those duties entail. It doesn't state, for instance, that a vacancy is declared if a member of Congress does not vote in Washington during a three-month period.

And it's not clear how or even whether the state law would apply to Giffords, a federal officeholder. One constitutional scholar and a former dean of the Arizona State University College of Law, said he thinks that any determination of a vacancy would have to be made by Congress.





Read more: http://www.examiner.com/populist-in-national/giffords-could-lose-her-seat-if-she-doesn-t-recover-by-april

[bigworld]

50. Federal law always trumps state law

in a case such as this. This shouldn;t even be an issue.

[monmouth]

51. Thought I heard that this applies to Senators only. Not sure, it was on the TV...n/t

[jaxx]

52. This from WaPo

As Gabrielle Giffords continues recovery, lawyers say Arizona statute won't endanger 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.

But in Washington, lawyers quickly concluded that the statute does not apply to members of Congress. The U.S. Constitution provides the qualifications for service in Congress and makes the House the sole judge of those qualifications.

Courts have consistently held that states cannot add qualifications to those in the Constitution and have rejected efforts to remove members of Congress, even through term limits and recalls.

"Legally, it's not a close call," said Brian Svoboda, a lawyer for the Democratic Party. "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."

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/17/AR2011011702542.html?wpisrc=nl_cuzhead

[Tempest]

53. The law only covers state officials, Gabby is a federal official

In 1995, the U.S. Supreme Court ruled that states cannot impose limits such as these for members of Congress, since the U.S. House is the only body who can decide if a seat is vacant. If this did occur, then they would direct the governor to fill the vacancy, which by Arizona law would be filled by special primary and general elections... so Brewer would be unable to appoint anyone to this position.

[MineralMan]

54. State laws do not apply.

As a reference, see the Constitution of The United States. Congress members cannot be recalled, either, despite state recall laws.

[DURHAM D]

55. horse manure