Almost all of Molly Gray’s competitors for the open lieutenant governor’s office said in recent days they will not contest her eligibility for the race, which has been called into question because she lived for more than a year in Switzerland.
But not Scott Milne, a leading candidate on the Republican side of the race, who wouldn’t take contesting Gray’s candidacy off the table, though he said that the matter is not a current focus.
“I would have to think about it in a lot more detail before I decide what I do,” Milne said this week.
For 15 months from 2017 to early 2018, Gray was living in Switzerland and working for a human rights nonprofit focused on private military contractors. She has said that during this time she was also traveling to the Middle East and back home to Vermont. During this period, she argues she retained her legal residency.
Gray did not, however, vote in Vermont for four election cycles between 2008 to 2018, which has raised separate concerns from fellow Democrats. In an interview with VTDigger on Tuesday, Gray said she is confident that any contest of her residency would not succeed.
“I wouldn’t be running if I wasn’t eligible,” she said. “I am eligible. And it’s a legal question with a legal answer and there is a legal opinion that has been verified by legal experts.”
Democratic candidate Sen. Debbie Ingram, D-Chittenden, said she’s worried that if Gray wins the primary, a Republican challenge could hurt the party’s chance at the LG position. And outgoing Senate Pro Tem Tim Ashe, another opponent, said he thinks the next Legislature should better define the residency requirement for lieutenant governor candidates.
Gray had previously studied law in Switzerland, and from 2007 to 2011 lived in Washington, D.C., while working in Vermont’s congressional offices and for the International Red Cross. But that period abroad from 2017-2018, working for the International Code of Conduct Association, has raised legal questions because of a constitutional requirement that candidates for governor and lieutenant governor “reside” in Vermont for four years before holding the office.
Aspects of Gray’s situation as a first-time political candidate running for lieutenant governor are similar to the brief campaign of political journalist Garrett Graff, who left the 2016 race amid residency questions. Gray moved back to Vermont full time in mid-2018, and is currently on leave from her job as an assistant attorney general in the criminal division.
Gray said she did her due diligence before announcing her run this past winter, and her campaign provided VTDigger with a detailed legal opinion and a list of prominent Vermont lawyers who agreed with its conclusion: a candidate (such as Gray) does not need to literally live in Vermont to legally “reside” in the state, as long as their time away is temporary in nature. (Gray has compared her work abroad to a member of the National Guard on deployment.)
In order to become lieutenant governor, the Vermont Constitution says candidates must have resided in the state for the previous four years consecutively. However, Vermont courts have never determined whether “resided” means where one is living or claiming legal residence, and both the Attorney General TJ Donovan and Secretary of State Jim Condos say it’s not their job to decide who qualifies for office.
Peter Teachout, constitutional law professor at Vermont Law School, said it’s unlikely that a court would allow any current candidate to contest Gray’s residency before the primary election because there’s been no “concrete injury” — meaning that Gray’s presence in the race hasn’t adversely affected an opponent’s outcome.
But if Gray were to win the primary, then either her Republican contender or defeated Democratic opponents could challenge her eligibility, Teachout said, because there would be potential proof of concrete injury.
But, Teachout added, he doesn’t think any challenger would win a case.
“I think it would be a waste of time and money,” he said.
A challenger would have to prove with a broad set of evidence that Gray had intended to claim residency outside of Vermont, Teachout said. The strongest evidence against this, he added, is that she has filed taxes in Vermont since 2011, and in tax forms filed with the Swiss government in 2017, also claimed Vermont residency. Gray has said she kept a Vermont bank account, a Vermont phone number and a Vermont home address throughout her time abroad.
A challenger could point to the fact that Gray hadn’t voted in Vermont elections in 2010, 2012, 2014 and 2016 as evidence against her, but Teachout doesn’t think that is strong enough on its own to discredit Gray’s argument that she qualifies. (Teachout was a professor of Gray’s when she was studying at Vermont Law School, but said that his assessment of the situation would be the same if it was any other candidate.)
The Vermont Law School professor came to the same conclusion as Vermont Bar Association President Beth Novotny, along with Vermont attorneys Brooks McArthur, Jerome O’Neill and Jake Perkinson, all of whom confirmed to VTDigger that they spoke with Gray about her qualifications and believe that she is eligible for the lieutenant governor’s office. (Perkinson is also a board member for the Vermont Journalism Trust, VTDigger’s parent organization.)
Even if a challenger might lose in court, there is nothing stopping them from another candidate filing a constitutional challenge, possibly in the middle of campaign season.
Gray’s Democratic opponents all told VTDigger in recent days that they will not contest her residency.
Sen. Debbie Ingram, D-Chittenden, who is also running for LG, said she won’t contest Gray. But she has concerns about a challenge to Gray’s legitimacy, should she win the primary.
“If she were the party nominee, Republicans could immediately file something in the courts,” Ingram said. “Even if it’s not settled quickly, it would put a cloud over our nominee and it would put the party in a bad position.”
Meg Hansen, another leading Republican candidate in the race for lieutenant governor, said she would not contest Gray’s eligibility. She added she hasn’t been following the issue around Gray’s residency and that it’s not important to her campaign.
Asked about the possibility of her candidacy getting caught up in a court case, Gray repeated that she’s eligible for the race. “And voters need to know the law and the facts, not the views of my opponents,” she said.
In a past VPR debate, Ingram asked Gray about whether she had filed a Vermont tax return while she was living in Switzerland at the time. Gray says she did file in Vermont, but also paid income taxes to the Swiss government, as required by a U.S.-Swiss tax treaty during that time.
Fellow LG Democratic candidate Sen. Tim Ashe, the outgoing Senate president pro tempore, said he’s not considering contesting Gray’s candidacy because she’s already on the ballot. He thinks it’s now up to the “court of public opinion” to determine whether or not they support Gray’s candidacy.
Ashe said that on top of better defining the residency requirement, he thinks the Legislature should construct a system where the secretary of state, for example, could verify each candidate’s residency with income tax forms and voting records, so that eligibility is not a fight between candidates.
“It’s not a good thing to have candidates to be the ones to be perceived as trying to keep people off the ballot,” Ashe said.
Brenda Siegel, who is also running for the Democratic LG nomination, said she’s sick of talking about Gray’s residency and that it’s distracting from the issues behind the race. She is, however, disappointed that Gray hadn’t voted between 2008 and 2018 in Vermont, which to Siegel shows a lack of civic engagement.
She initially said she might challenge Gray’s residency if she had the resources, but later said she wouldn’t do it under any circumstances. Ultimately, she thinks the conversation is a distraction.
“Challenging that issue takes a lot of time,” Siegel said. “And it takes a focus away from Vermonters.”
