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Who Controls Rep. Giffords' Seat -- She or the People of Arizona?

Posted: 01/20/11 04:46 PM ET

The shooting of Rep. Gabrielle Giffords has led to a multitude of unanswered questions surrounding: gun regulation (or lack thereof); heated political rhetoric and its consequences; and what if any effect all of this will have on the 2012 presidential election.

An additional question yet to be properly discussed much less answered is: Who will represent Arizona in Giffords' stead? Thankfully Rep. Giffords is on the road to recovery. However, it will be long, arduous and unpredictable. There is no doubt her constituents mourn for her and her family. But does that mean they should also go without representation in Congress? Certainly not.

Arizona state law provides for a remedy. When an official officeholder is unable to "discharge the duties of office for the period of three consecutive months, the office shall be deemed vacant and at such time, a special election could be called to fill the opening," The Washington Post reports. The problem is that law most likely does not apply in this particular situation.

"Legally, it's not a close call," said Brian Svoboda, an attorney and expert in political law. "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."

So if the Arizona law is not applicable, is there a federal law that is? No, not really. Nothing forces determinative action regarding an incapacitated member of Congress. In fact, there is a long history of members serving for years in such an incapacitated state pleas from others notwithstanding.

Only once ever has a member in such a state vacated office. In 1980, Rep. Gladys Spellman (MD) suffered a heart attack then slipped into a coma. Surprisingly she won re-election anyway but her family soon agreed to vacate her seat, and she never did come out of her coma. But is this how it should be? Should constituents allow members to hold onto their seats like political Brett Favres with no concept of when it is time to go?

Stepping down from one's office is nothing to be ashamed of. In actuality, the shame lies in not being honest with one's own self about the responsibilities that voters have entrusted in one and the expectations they have. Constituents should expect that an official will either be appointed or a special election held within six months, not years. This current Congress should take this issue up immediately and in consultation with Giffords' family and Arizona Gov. Jan Brewer come to an appropriate remedy.

After all, Rep. Giffords is not the only person suffering in Arizona. On Oct. 1, 2010, Arizona stopped funding seven kinds of transplant surgery for Medicaid recipients.

This kind of rationing is not a first, but it is certainly a dire situation for those who have no other means of paying for much-needed care.

And that's not the only problem. Arizona recently slashed mental health funding too. Sure, that may change now that a light is being shined on the supposed mental issues of Jared Loughner, Rep. Giffords shooter. But Arizona needs representation in Congress that can fight on its behalf -- just like every other state.

Legislators elsewhere share their condolences and pray for Giffords' speedy recovery as much as anyone else. That doesn't mean they'll be fighting for Arizona's interests in the halls of Congress. Arizona can't afford to wait for the next shooting to get some additional federal funding. Let's hope that's not becoming the most effective way to lobby for more federal money.

John S. Wilson blogs at Policy Diary on health and education policy. Follow him on Twitter and become a fan on Facebook. This post appeared first at TheLoop21.