A judge may have to sort through the electoral mess brewing in a northern Utah House district after Lt. Gov. Deidre Henderson rebuffed a request from Utah Democrats to disqualify Rep. Joel Ferry from November’s ballot.
Gov. Spencer Cox nominated Ferry to head the Utah Department of Natural Resources in June. Ferry is currently the department’s executive director in an acting capacity while he is waiting for Senate confirmation.
Since June, Ferry has also retained his seat in the Legislature, which Democrats claim violates the Utah Constitution’s prohibition on a person holding a position in two separate branches of government and the restriction on members of the Legislature from holding another “public office of profit or trust.”
The Utah Senate is set to finally take up Ferry’s nomination on Friday morning, two months after he was initially nominated.
Ferry is still running for reelection to the HD1 seat he has held since 2018 as his appointment came too late for Republicans to replace him on November’s ballot. Democrats claim Ferry should be disqualified from the ballot because he would be ineligible to serve if he wins in November.
Lt. Gov. Henderson told Democrats on Wednesday her hands are tied because Utah law is silent on the issue.
“Mr. Ferry’s status as a current or former legislator does not affect his status as a candidate and does not require me to remove him from the November ballot,” Henderson wrote in a letter.
Henderson explained candidates could be disqualified for failing to file financial disclosure reports on time. She did not take a position on whether Ferry’s dual role was a constitutional violation.
“At this time, whether or not Mr. Ferry remains on the ballot is entirely up to him,” Henderson wrote.
Utah Democrats called Henderson’s refusal to act a “weak cop out,” and turned up the volume on their threats to take the issue to court.
“The fact that Joel Ferry is currently holding positions within two separate branches of government is clearly a violation of the state constitution, and it is unacceptable,” the party said in an emailed statement. “We will be pursuing this issue further and plan to do everything in our power to put an end to this blatant, politically motivated disregard for the constitution.”
Cox’s office claimed Ferry was not violating Utah’s constitution because he was not accepting compensation for his legislative work and resigned from any committees dealing with natural resources. Last week, Cox’s office said Ferry would resign from his Legislative seat “upon Senate review.” Friday’s confirmation hearing is expected to forward Ferry’s nomination to the full Senate for an up or down vote, which could take place during September’s interim meetings.
If Ferry remains on the ballot and wins in November, which is likely, then Utah Republican Party delegates and not voters will pick his replacement. House District 1 is overwhelmingly Republican. Ferry won reelection in 2020 by more than 66 points.
If Ferry were to withdraw or be forced off the ballot, the only candidate remaining would be Democrat Joshua Hardy. Two Republicans, Thomas Peterson and Karson Riser, have filed as write-in candidates. The filing deadline for other write-in candidates to be eligible for November’s election is Sept 6.
A write-in campaign, even in a heavily Republican district like House District 1, would be a gamble at best. Very few write-in candidates ever win. Utah State University political scientist Damon Cann says there is a very good reason for that as write-in candidates rarely have the kind of name recognition they would need to mount a successful effort.
“The circumstance we could see in (House District 1) is where a write-in would have a chance. But it would take a very high-profile campaign, a significant amount of spending, extensive voter outreach and a little luck to pull it off,” Cann said.
Cann adds voters need to remember the write-in candidate and what office they are running for, then write them in. That’s a big ask of voters in a lower-profile race.
With two, and maybe more GOP write-in candidates in the race, there is a genuine possibility that Republicans could sabotage themselves come November by splitting the vote.
“If there were two, three or more Republicans who declare as write-in candidates and really go after it, splitting the Republican vote,” Cann said. “That could end up handing the election to the Democratic candidate.”
The timing could play a role, too. Counties must send ballots to the printer in mid-September to be ready to mail to voters in mid-October. If Ferry is disqualified from the ballot after ballots have been printed, any votes cast for him will not count.