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Can Giffords Legally Keep Her House Seat?

As Rep. Gabrielle Giffords, D-Ariz., recovers from injuries suffered during the Jan. 8 shooting in Tucson, questions have begun to circulate regarding whether or not she will be able to keep her congressional seat as she continues her recuperation. 

Arizona state law says that an elected office is considered to be vacant if the “person holding the office ceases to discharge the duties of office for three consecutive months.”  But, because Giffords is a member of the U.S. House of Representatives and the U.S. Constitution determines the qualifications for serving in Congress, legal authorities quoted this week in The Washington Post have concluded that this state law does not apply to Giffords and that any attempt to vacate her congressional seat using a state law would be unconstitutional.

In the midst of the extensive news coverage about the shooting itself, Jared Loughner’s history of disturbing behavior and whether he should have been identified as someone who required mental health services, and the aftermath of the shooting and its impact on the national political scene, few have asked until recently if Giffords will be able to serve in Congress over the long term or whether she even wishes to do so. Her staff is reported to be continuing to work on her behalf, but there are certain roles they cannot fill in her absence, like voting on bills. There seems to have been little discussion in the news as to how long the House can wait until it must decide whether Giffords is incapable of performing the duties of her office.

Guest blogger Ruth Carter is a law student in her final semester at Sandra Day O'Connor College of Law at Arizona State University.

Posted by Laurel Newby on January 20, 2011 at 04:22 PM | Permalink | Comments (7)

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