Could Arizona Law Unseat Rep. Gabrielle Giffords?

While Gabrielle Giffords continues to make progress in her recovery from the shooting attempt on her life, a little-known statutory provision in Arizona law may threaten her role as a representative in Congress.

According to the Washington Post, 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. It's at that time, the law states, that a special election must be called to fill the opening.

The interpretation of the law varies and it was unclear Monday whether the state law would apply to Giffords, a federal officeholder.

Paul Bender, a constitutional scholar and former dean of the Arizona State University College of Law, told the Post that he believes any determination of a "vacancy" should be made by Congress. "The state has no right to say what the duties of a congresswoman are," he said. "The state has no right to say when the office becomes vacant."

Meanwhile, Arizona Gov. Jan Brewer was made aware of the statute Monday, but has not announced her decision on how best to proceed. "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, consider," a spokesman for the governor announced.

Instead of calling for a special election to replace Giffords, it's also possible Gov. Brewer could call for a special session of the state legislature to amend the law in such a way that would allow Giffords to fully recover before returning to work.

"This is a statutory provision that was written without vision of a case such as this and could lead to injustice," said Jay Heiler, a former assistant attorney general and Brewer advisor.

Although the legislature is controlled by a Republican super-majority in both chambers, it's unlikely that partisan politics would drive lawmakers to pursue any course of action that would deny Giffords her seat.

"We should let people recover before anybody makes a judgment about whether she's fit to serve," state Sen. Frank Antenori, a Republican who represents part of the Tucson area, told KTAR. "I don't hear anybody making those discussions."