Molly Gray, a top contender in the Democratic race for lieutenant governor, spent about 15 months based out of Switzerland from early 2017 to mid 2018, she confirmed this week. That hiatus from the state raises a question about whether she meets the residency requirement for running for office in Vermont.
Gray says she sought legal advice before launching her campaign to make sure that period overseas did not disqualify her to run. Her campaign said the overwhelming advice it received was that she was eligible.
Specifically, she wanted to make sure that her time abroad did not interrupt the four years a candidate must “reside” in Vermont to qualify for the lieutenant governor’s office, according to the Vermont Constitution.
From March 2017 to June 2018, Gray said she paid rent at an apartment in Geneva — where she also paid taxes to the Swiss government — but was also traveling to places like Baghdad and Nigeria, and home to Vermont, for her work building a human rights monitoring framework around private military contractors.
“I had no intention to remain in that work but I felt like it was an important opportunity to help get things off the ground,” she said of that part in her life. “I accepted the position knowing that I would return home, you know, to be with family and continue my career.”
A number of prominent Vermont legal experts — including Peter Teachout, a constitutional law professor at Vermont Law School, and Beth Novotny, Vermont Bar Association president — told VTDigger this week that they believe that Gray is eligible, based on legal opinions and case law.
“Based upon my reviews of the relevant cases, statutes and AGO opinions, Molly Gray is qualified to be a lieutenant governor under the Vermont Constitution,” said Novotny, president of the Vermont Bar Association. “And, in my opinion, if someone challenged Molly Gray’s eligibility, they’d lose.”
Some of the specifics of Gray’s candidacy recall those of Garrett Graff, another politically ambitious newcomer in his mid-30s who ran for the lieutenant governor’s office in 2016. Graff had lived in Washington, D.C. for more than a decade, as a political journalist, before seeking to move back to Vermont to run for office.
He ultimately dropped out amid questions over his eligibility. Secretary of State Jim Condos was among those indicating that Graff was not eligible.
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Gray pushed back on the comparison with Graff. “I can’t draw a comparison because I never gave up my residency and never intended to stay,” she said.
“It was a really, really unique opportunity, but Vermont is my home, and it will always be my home and I’ve lived here my entire life — with the exception of the time in D.C., and even then I was back and forth and wanting to get back here as soon as possible.”
Whether “resided” means actually living in the state, or can be where one claims legal “residence” (even if their temporary home is elsewhere), has not been directly settled by the Vermont Supreme Court.
Sen. Joe Benning, R-Caledonia, a member of the Senate Judiciary Committee, was skeptical about whether Gray was eligible under a strict reading of the Constitution. “If your facts are accurate I’d say she definitely has a problem,” said the career defense attorney. “Seems to me this was exactly Graff’s problem, at least on the surface.”
Benning added: “But I wonder if she was still voting here and retained a VT driver’s license, which would at least indicate intent of domicile.”
Both the Secretary of State’s Office and the Attorney General’s Office this week said it’s not their job to determine whether candidates are qualified or eligible for the offices they aim to serve. Eric Covey, chief of staff for Secretary of State Condos, said Thursday Gray did contact the secretary of state about her eligibility.
“We told her that our office does not have the authority to analyze and determine eligibility of any candidate to hold office, including as it pertains to residency requirements,” he said in an email. “Our purview is determining whether or not a candidate meets the requirements to appear on the ballot.”
The Attorney General’s Office pointed to a 2016 letter from Condos making the same point regarding Graff’s candidacy. “As described in the letter, it is not the role of the Attorney General to make decisions on whether a prospective candidate is qualified, on the basis of residency, to hold a statewide elected office,” said Charity Clark, Attorney General TJ Donovan’s chief of staff, in an emailed statement to VTDigger.
In 2016, Condos said that under the residency requirement, Graff would not be precluded from trying to run but that another candidate could challenge his eligibility if he decided to file.
Gray is currently on leave from her position as an assistant attorney general, a role in which she has investigated alleged abuses by nuns at the St. Joseph’s orphanage in Burlington.
When questions swirled around Graff’s eligibility, Assistant Attorney General Michael Duane (under former Attorney General Bill Sorrell) told Seven Days: “We believe the framers wanted to ensure that the person holding those high offices resided in Vermont in the common-sense use of that term for four years before being eligible.”
Although the Legislature took testimony on the issue of “residency” as it applied to eligibility for Vermont’s top political officer, and whether the Constitution should be changed or clarified (Graff was among those pushing for the change) it declined to take any action at the time.
Graff eventually dropped out of the race on his own accord, but only after making a series of arguments in defense of his eligibility, including that Vermont was his “mental home” during his decade working as a political journalist in Washington, D.C. (Like Gray, he also noted that he kept a Vermont driver’s license and remained a registered voter. Gray also said she maintained a Vermont phone number.)
Vermont’s Constitution says: “No person shall be eligible to the office of Governor or Lieutenant-Governor until the person shall have resided in the State four years next preceding the day of election.”
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Election law defines “resident” as: “a natural person who is domiciled in this State as evidenced by an intent to maintain a principal dwelling place in the State indefinitely and to return there if temporarily absent, coupled with an act or acts consistent with that intent.”
Samantha Sheehan, Gray’s campaign manager, provided VTDigger with a legal opinion written by Burlington attorney Jake Perkinson, a former chair of the Vermont Democratic Party who said he supports Gray’s candidacy. In that opinion, he concludes that he believes she is eligible. (Perkinson is member of the board of trustees for the Vermont Journalism Trust, the parent company of VTDigger).
Perkinson pointed to a section of the election law relating to qualification for voters, in which it is clearly stated that “living outside the United States” is not grounds for losing one’s residence for purposes of voting. Condos said in 2016 that he does not believe that section of the law can necessarily be applied to electoral candidates.
“She was certainly living there, there’s no way to get around that,” Perkinson said in an interview about Gray’s time in Geneva, “but because of the way you define residency, because she did not intend to live in Switzerland for the rest of her life, in fact she intended to return to Vermont…all of that taken together shows that residency was continuous during that time period.”
In Graff’s case, he added, “the assumption was look you lived in D.C. for 11 or 12 years, you can’t come back here and now, just because you kept visiting, say, oh, now all of a sudden, you know, because you decide you want to be a Vermont resident you are a Vermont resident.”
In March 2017, Perkinson wrote in his opinion, Gray was recruited to return to International Code of Conduct Association, a Swiss nonprofit she first consulted for from September 2015 to November 2016. In her statement to Perkinson she said she was “travelling internationally” during this time, but “primarily based out of Switzerland” until “early” 2018, when the organization found a new executive director and she moved back to Vermont.
Gray’s campaign website said that during this second stint with ICoCA, Vermont was her “home base,” apparently contradicting her statement to Perkinson that she was “primarily based out of Switzerland.” Gray stated that she paid taxes in Switzerland in 2017 because of a U.S.-Swiss tax treaty.
In Perkinson’s analysis, he notes that Gray was raised in Vermont, and has, at least since 2011 — when she went to work for Rep. Peter Welch, D-Vt., in Washington, D.C. — maintained a permanent residence, evidenced by her Vermont bank account, cell phone and home address. “While engaged in work overseas,” he adds, Gray “continued to maintain and build professional relationships in Vermont with the intention of building [her] career here.”
Gray said on Friday that she did not see a discrepancy between her statements to Perkinson and the biography on her campaign website.
“No, because while I was working for the association, at no point did I relinquish my home or my residence or my status as a Vermonter,” she said, comparing her time with ICoCA to a member of the National Guard on deployment or an international consultant visiting the Middle East for human rights work.
“You know, you would never relinquish your home, right?” Gray said. “Home is Vermont, home base has always been Vermont.”
Asked why she reached out to Perkinson and other lawyers for legal advice on her eligibility, she said “I certainly wanted to do my due diligence.”
Sheehan, Gray’s campaign manager, suggested questions about her residency were politically motivated. “After you confirm what I have already conveyed to you about Molly’s eligibility,” she wrote, “I hope you will investigate and write about why, nearly 30 days out from a primary where over 40,000 Vermonters have requested absentee ballots, someone felt motivated to question Molly’s status as a Vermonter.”
Gray is part of a crowded Democratic field for the lieutenant governor’s office, which is being vacated by David Zuckerman, who is running for governor. The other LG candidates are Sen. Tim Ashe, D/P-Chittenden, the outgoing Senate president pro tem; Sen. Debbie Ingram, D-Chittenden, an ordained minister; and Brenda Siegel, a low-income advocate who ran for governor in 2018.
With little polling in Vermont ahead of the Aug. 11 primary, it’s difficult to have a sense of where the candidates stand in terms of favorability and name recognition. Gray has garnered significant endorsements from establishment Democrats, including former governors Madeleine Kunin and Peter Shumlin, as well as Jane Stetson, a top Democratic fundraiser.
In lieu of binding legal precedent around the meaning of “residency,” as it applies to candidates for high office, Perkinson and Novotny pointed to an opinion from the Vermont Attorney General’s Office in 1963, in which it weighed in on the qualifications of Clarence H. McCandless, who in 1962 was elected as a state representative for Windham. (Legislators must reside in Vermont for two years, and one year in the district they aim to represent.)
The main question about McCandless’ residency was based on a vote that he cast for presidential electors in 1960 — in New York. He wouldn’t be registered for the poll tax in Vermont until 1962, but argued that in almost every way he lived in Vermont before the two-year cutoff. It’s not the details of the case, but the logic of the opinion, that helps bolster Gray’s case for being eligible for high office, according to Perkinson.
“To me the most salient point out of that older AG opinion is, you have to be a resident somewhere, until you establish a new residency, your old residence continues,” Perkinson said in an interview Friday morning.
Novotny highlighted where the Attorney General’s Office turned in 1963 to answer the question of residency: They looked at how residency is defined for voters. She also noted that the attorney general’s decision not to make a clear determination in Graff’s case showed that they viewed the legal question to be more complicated than whether the person literally lived in the state or not.
Yet a number of legislators said this week that they consider the question of residency, as it applies to high office, to be unsettled.
Rep. Sarah Copeland-Hanzas, chair of the House Government Operations Committee, said “there is no actual definition of residence as it applies to candidates — so we use the definition of residency as it applies to voters. So if anyone were to contest somebody’s eligibility to run for office, the courts would really have to decide what residency means.”
Copeland-Hanzas, D-Bradford, said she didn’t know enough about Gray’s situation to comment on her case specifically. Rep. John Gannon, D-Wilmington, a member of the Gov Ops committee who was a career attorney with the Securities and Exchange Commission, said the definition of residency for voters was the most relevant law to go by, adding that he had endorsed Gray and would be frustrated if anyone tried to interpret the law to keep her out of this election.
“You know, just because somebody lived abroad for a year, I wouldn’t say that means they gave up their residency unless you’re saying that Molly Gray became a resident of Switzerland, which I don’t think is the case,” Gannon said.
Sen. Anthony Pollina, D/P-Washington, a longtime advocate of campaign finance reform who sits on the Senate Government Operations Committee, said Gray’s case appeared rather different from Graff’s, though he added it still raised legitimate questions about the reading of the Constitution.
“I would suggest that we err on the side of assuming she is qualified to run, rather than closing the door on people who are interested in running,” he said, going on to say of Graff and Gray: “Coming home to buy a house to run, that’s different than someone who is a Vermonter that takes a job overseas and then comes back.”
Pollina added, “I would just hate to see us get in a habit of challenging people’s citizenship in a way that might seem frivolous.”
Sen. Jeannette White, D-Windham, made a similar point during committee debate around Graff’s candidacy. “Someone who works overseas for Doctors Without Borders, for example, probably should not have to wait four years after returning to be eligible to run for lieutenant governor,” she said.
The criteria for voter residency does allow for people to live elsewhere for reasons like military or government service. Though it does not make a specific carveout for humanitarian work, Perkinson argues that because the ICoCA — the organization Gray was working for — was heavily supported by the U.S. government, it could be classed as government work.
Benning, the Republican senator, said during the 2016 debate that he opposed any change to the Constitution that would more explicitly allow for “legal residence” even if someone doesn’t physically live in Vermont. He said such a change would be “essentially abandoning whatever it was for rationale that our ancestors had in mind.”
When it comes to Gray’s candidacy, Teachout, the VLS professor, said, based on the information he has, “Ms. Gray easily qualifies under these criteria for having maintained residence in the state for the preceding four-year period.”
Teachout added, “There is no evidence that I have seen to indicate that she ever considered her foreign study or international deployments as anything but temporary.”
Clarification: This story has been updated to include an additional portion of a statement provided by Sen. Joe Benning on his view of the residency matter.
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