Before they draft Amy McGrath to run for governor, her supporters are trying to hush the political whispers that she hasn’t lived in Kentucky long enough.

Within 24 hours of losing the closely watched Kentucky 6th Congressional District race, McGrath’s campaign manager was publicly encouraging her to enter the 2019 gubernatorial contest.

“Amy is taking her time and reviewing all of her options,” Mark Nickolas told the Courier Journal via email.

McGrath, a former Marine fighter pilot, carries national name recognition after the midterms and is a major fundraiser. She would also be a fresh face for Democrats in a primary field that is made up of state Rep. Rocky Adkins, a 30-year incumbent, and Attorney General Andy Beshear, the son of a former governor who has been around state government for more than 40 years.

Democratic strategist Matt Erwin said McGrath’s political future in the state is a bright one, but there is festering concern about whether she would qualify to be the nominee taking on Republican Gov. Matt Bevin next year.

“Amy is enormously talented, but if there is any question about whether there will be a legal fight over her residency — 2019 is too important for that kind of distraction,” Erwin said.

McGrath, who grew up in Edgewood, Kentucky, retired from the military in June 2017 after serving two decades in the U.S. Marine Corps.

After serving multiple tours overseas, where she flew about 90 combat missions, McGrath returned stateside in 2011. She was assigned to Capitol Hill as a congresswoman’s policy adviser for one year, according to the Naval Academy’s website, and spent the next two in the Pentagon as a liaison to other federal government agencies.

In 2014, McGrath taught political science to cadets and midshipmen at the Naval Academy before retiring and moving to Georgetown, Kentucky, where she announced in a viral YouTube video that she was running for Congress.

During the 2018 congressional primary, both of McGrath’s Democratic rivals — Lexington Mayor Jim Gray and state Sen. Reggie Thomas — called her out for moving back to Kentucky so close to announcing her candidacy.

Thomas referred to McGrath as a “carpetbagger” during a televised debate, and Gray released a TV attack ad about the issue in the final weeks of the election. The spot was widely condemned by veterans groups, including VoteVets, who said it was attacking McGrath’s military service.

Unlike running for Congress, however, the Kentucky Constitution says a person must be a resident of the state for at least six years before the gubernatiorial election.

Erwin, the political strategist, emphasized he isn’t working for any Democrat who is currently or rumored to be running for governor. He said he was an early donor to McGrath’s congressional bid, but residency issues surrounding her potential candidacy requirement cannot be ignored.

“The only people I can guarantee who will make an issue out of it would be the Republicans,” Erwin said. “In 2018, they showed the lengths to which they’re willing to go in terms of voter suppression, so I wouldn’t put it past any Republican candidate, especially Matt Bevin, to try every legal trick in the book.”

Nickolas dismissed those anxieties when asked by the Courier Journal, saying McGrath’s residency has been entirely in Kentucky since November 2013. He said as someone serving in the military, she was able to designate a residency while she was stationed out of state.

“That’s not a barrier to running,” Nickolas said.

“I know the Republicans are nervous about her running and have been pushing this, but it’s desperate because her residency is clear, as an active duty military officer,” he added.

Fifteen years ago, a residency challenge rocked the early days of Kentucky’s gubernatorial contest. Republican Hunter Bates was knocked off the ticket as the running mate for then-candidate Ernie Fletcher.

Bates had lived in Alexandria, Virginia — working as an aide for U.S. Mitch McConnell — for six and a half years before running. In that ruling, which Bates did not appeal, an Oldham Circuit judge said that even though Bates maintained the right to vote in his native Whitley County and owned property there, he lost his residency after being out of the Bluegrass State for so long.

Fletcher went on to pick a new running mate, Steve Pence, before winning the GOP nomination and ultimately the governor’s mansion.

Josh Douglas, a law professor at the University of Kentucky, said if McGrath enters the race, the question will come down to her intent during the previous six years while serving either overseas or stateside.

“Residency for these purposes is usually defined as where someone lives with an intent to remain indefinitely,” he said. “One does not lose a residency — often called ‘domicile’ — unless and until they have a new residence, plus intent to remain indefinitely somewhere else.”

University of Louisville law professor Russell Weaver echoed that McGrath’s military service out of state doesn’t take away her Kentucky citizenship rights. But he said there isn’t much McGrath can do to answer this legal question until she decides to run and someone challenges her in court.

“She can come forward with the information, but she’s not going to get a definitive answer,” he said.

Les Fugate is a Republican consultant who previously worked in the secretary of state’s office. He said there is also little case law at the statewide level to give McGrath or the Democrats much guidance.

“If I were her, I would have a little heartburn about my standing because the decision is outside of her hands and it’s with the courts,” he said.

Fugate said Republicans thought Bates qualified to run in 2003, and that while not the same type of service, both McGrath and Bates were away from their home state on behalf of the U.S. government.

“It’s never made its way up the legal food chain to the state Supreme Court, but it seems hard for me to see how their situations are that dramatically different,” Fugate said.

Kentucky Democratic Party Chairman Ben Self declined a request comment left with a spokeswoman. But the party acknowledged they are aware of swirling concerns about McGrath’s potential candidacy.

Douglas, the UK law professor, said the best legal example for McGrath to examine is a challenge against Democrat Rahm Emmanuel when he ran for mayor of Chicago in 2011.

Opponents argued Emmanuel gave up his residency, which needed to be one year, by moving to Washington, D.C., to serve as White House chief of staff for President Obama.

The Illinois Supreme Court, however, ruled that Emmanuel did not create a new domicile in D.C. because he always intended to go back to Chicago.

In that case, Douglas said, the court said a candidate’s absence can last years while still being “temporary,” meaning the person does not lose residency. He said if McGrath’s residency is challenged in court, a judge would look at various activities, including her voting history and where she had a driver’s license.

“Given the facts that I know, I think it’s probable that she did not lose her Kentucky residency,” Douglas said. “But, of course, that would be subject to further inquiry based on the facts.”

McGrath has been a registered voter in Kentucky since 1995, according to the secretary of state’s office. Voting records show she has participated in five of six state elections since 2011.

Nickolas bypassed a question about McGrath’s other information — “Driver’s license? Really?”— but pointed out that she has filed her tax returns in Kentucky every single year as a resident during that time frame.

–30–

Written by Phillip M. Bailey. Cross-posted from the
Courier-Journal via the Kentucky Press News Service.

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