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

By Philip Rucker and Dana Hedgpeth
Washington Post Staff Writers
Tuesday, January 18, 2011; 12:49 AM

TUCSON - Rep. Gabrielle Giffords continues to make progress in what doctors here described Monday as a miraculous recovery after undergoing a minor procedure over the weekend to repair a fracture in her right eye.

The Arizona Democrat apparently recognized her husband, gave him a smile and rubbed his neck for 10 minutes, which doctors at University Medical Center said is a sign that her higher cognitive abilities were preserved after she was shot through the head Jan. 8 in a rampage that killed six people and wounded 13.

With doctors preparing Giffords for the rehabilitation stage of her recovery, the discovery Monday of a little-known statutory provision in Arizona law raised the prospect of a legal complication that, if left unamended, would endanger her hold on her 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."

Paul Bender, a constitutional scholar and a former dean of the Arizona State University College of Law, said that any determination of a vacancy would have to 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."

At the hospital where Giffords is listed in serious condition, doctors said they are using a feeding tube to provide her with adequate nutrition. They said she is breathing on her own through a tube in her neck.

Doctors told reporters that Giffords still faces the risk of infection, pneumonia or other serious complications but that she made it through the most critical period in which her brain could swell.

Giffords underwent a two-hour procedure Saturday to repair a fracture in her right eye because bone fragments were pushing down on the socket. Surgeons said they made an incision in her eyebrow to remove the rim of the socket and removed bone fragments, taking pressure off the eye. They reconstructed the skull area using metal mesh.

"I'm happy to say that within a few hours of the surgery, she was waking up, and through the weekend she came back to the same baseline she had been at before the surgery, that same level of interaction she's been having with us," said G. Michael Lemole Jr., the hospital's chief neurosurgeon.

Giffords's husband, astronaut Mark Kelly, who has been a near-constant presence at her bedside, told doctors that he saw his wife smile at him. And in his first interview since the attack, he said she gave him a neck massage.

"She's in the ICU, you know, gone through this traumatic injury," Kelly said in a television interview with Diane Sawyer that is to air Tuesday on ABC. "And she spent 10 minutes giving me a neck massage. I keep telling her, I'm like: 'Gabby, you're in the ICU. You know, you don't need - you know, you don't need to be doing this.' But it's so typical of her that no matter how bad the situation might be for her, you know, she's looking out for other people."

Doctors said that was encouraging. "She's recognizing him and interacting, perhaps in an old, familiar way with him," Lemole said.

Asked whether Giffords understood what had happened to her, Randall Friese, another one of her surgeons, said he had told her about the shooting and she had squeezed his hand. He said she has not tried to talk.

"That's up to her healing process and how she responds to therapy," Friese said.

The next step, doctors said, is repairing Giffords's skull, a task that Lemole warned is "many months down the road." He said that doctors will spend the coming days "tying up those loose ends" to get her ready for rehabilitation and that she could leave the hospital in "a matter of days to weeks."

Doctors said her family is looking at rehabilitation facilities around the country, including Walter Reed Army Medical Center in Washington, as well as facilities in Houston and Phoenix.

ruckerp@washpost.com hedgpethd@washpost.com

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