Congresswoman Gabrielle Giffords can't be forced from office for not doing her job while she is recovering, at least not by state law.
Matthew Benson, spokesman for Secretary of State Ken Bennett, the state's chief elections officer, said an Arizona law allowing a public office to be declared vacant if someone is absent for three months "doesn't apply to federal offices.''
And Paul Bender, the former dean of the Arizona State University College of Law, said speculation to the contrary is based on a flawed reading of the Arizona law.
Even an aide to Gov. Jan Brewer said the whole question appears to be a media creation that has been blown out of proportion. Paul Senseman said the only queries the governor has received about the statute have been from reporters.
The issue arose Monday when the Washington Post said Giffords, recovering from a gunshot wound to the head at University Medical Center in Tucson, might be removed from office because of the law. The report, which gained Internet traction, said the statute allows the state to conclude that an office held by a federal official from Arizona is vacant.
Untrue, said Benson -- and not just because the statute quoted never once uses the word "federal'' regarding office holders.
That law does spell out what defines a vacancy under Arizona law for a public official. One provision declares an office vacant "from and after the occurrence of "the person holding the offices ceasing to discharge the duties of the office for the period of three consecutive months.''
Benson noted, however, the provision is part of Title 38 of Arizona Revised Statutes. That specifically deals with public offices and officers.
And the definitions section for that entire section of Arizona law spell out that a public office is "any office, board or commission of the state, or any political subdivision thereof.'' That would include local elected officials -- but not those holding federal office.
"A vacancy would have to be declared by the U.S. House, not the state of Arizona,'' Benson said.
Bender said the legal issues are clear.
"When a vacancy exists is up to Congress,'' he said.
Aside from the definition of who holds public office, Bender noted that federal courts have previously limited the ability of states to decide who can serve in federal office.
The most notable of these came in 1995 after Arizona and 22 other states adopted laws and state constitutional provisions limiting how long people could serve in public office. Those law were worded to include not only statewide and legislative officials but also members of Congress.
That year, however, the U.S. Supreme Court, in a 5-4 ruling struck down those laws. Justice John Paul Stevens, writing for the majority, said the court is "firmly convinced that allowing the several states to adopt term limits for congressional service would effect a fundamental change in the constitutional framework.''
Even if the Arizona statute could apply to members of Congress, the law is silent as to who declares an office vacant.
Senseman said any speculation about the law is premature at best.
"With Rep. Gifford's tremendous progress, an answer to many prayers, we've deemed it to be far too early and entirely inappropriate to speculate, analyze, or consider,'' he said.
Bender said even if the statute could be interpreted to apply to members of Congress, the entire question likely is moot.
Under Arizona law, vacancies for members of the U.S. House of Representatives are filled by special primary and general elections.
"She could run again,'' Bender said of Giffords. It would remain to be seen if anyone would contest her.
Aside from that 1995 Supreme Court ruling, the actions of members of Congress themselves suggest they believe the authority to declare a seat in their chambers vacant rests solely with themselves.
In 1980, prior to that year's election, U.S. Rep. Gladys Spellman, a Democrat from Maryland, suffered a severe heart attack and fell into a coma. Despite that, voters in her district reelected her four days later.
She never took the oath of office for her new term, though.
In February 1981 the House voted to declare the seat vacant. That occurred, however, only after getting medical information that she was in a "trance-like state'' and unable to take the oath.
That resolution directed the governor of Maryland to fill the vacancy.
Several factors in this case, however, make it unlikely Congress would follow suit.
One key difference here is that Giffords, who won a new term in November, did take the oath with her colleagues. And unlike Spellman, who died in 1988 without regaining consciousness, Giffords is responsive.