Utah Democrats file suit to force Joel Ferry off the ballot

The lawsuit alleges Ferry, who was appointed to head up the Department of Natural Resources by Gov. Spencer Cox, is violating the Hatch Act by remaining on November’s ballot.

Rick Egan | The Salt Lake Tribune) Utah Democrats filed a federal lawsuit on Wednesday seeking to force Joel Ferry off the ballot in HD1. They claim he cannot run for partisan office while heading up the Utah Department of Natural Resources because it violates the Hatch Act.

The House District 1 election in northern Utah is typically a sleepy affair. The Republican candidate received more than 70% of the vote in each of the last five elections. This year’s race is proving to be much more exciting.

Joel Ferry, the Republican candidate on the ballot, resigned from the Legislature last month after taking a job in Gov. Spencer Cox’s administration. He’s still on the ballot, and Democrats have gone to federal court seeking to kick him out of the race. Meanwhile, three Republicans, including a former legislator, have filed as write-in candidates for November’s election. While all this is happening, Utah Republicans will meet later this month to choose someone to fill out the remainder of Ferry’s term.

Since July, Ferry has been leading the Department of Natural Resources (DNR) in an acting role. A Utah Senate committee approved his nomination in late August. The full Senate could vote to confirm Ferry later this month or wait until late October.

Ferry and Democrat Joshua Hardy are the only candidates officially on November’s ballot. Ferry resigned his seat in the Utah House but said he would not give up his spot on the ballot. He resigned too late for the GOP to replace him. That raises the likely scenario of Ferry winning in November, then resigning again, which would let the Republican Party choose someone to fill the seat.

Democrats asked Lt. Gov. Deidre Henderson to disqualify Ferry from the ballot because Utah’s Constitution blocks individuals from holding positions in the executive and legislative branches at the same time. Henderson declined, saying there was no Utah law to throw Ferry off the ballot.

On Wednesday, Hardy and the Utah Democratic Party filed a lawsuit in federal court arguing that Ferry cannot be a candidate for office and in his current role simultaneously because it violates the Hatch Act. The law prevents state employees working with federally funded programs from running for a partisan federal office.

In 2021, Just over $69 million of the DNR’s $331 million budget came from federal money. Additionally, Utah law contains a provision dubbed the “Little Hatch Act” that requires the state to follow the federal version of the law.

In 2006, Jon Greiner was elected to the Utah Senate while he was Ogden’s police chief. When he ran for reelection in 2010, Democrats claimed he was violating the Hatch Act. Greiner dropped out of that race after a judge ruled against him.

Hardy would be the only candidate remaining if Ferry were removed from the ballot. The lawsuit alleges Ferry and the GOP are keeping him on the ballot to make sure there’s a Republican to vote for.

“Their motivation is simple: without Mr. Ferry remaining on the ballot, URP (Utah Republican Party) would have no candidate for that legislative race other than write-ins. But the U.S. Constitution does not permit the state or the courts to protect a political party from themselves,” the filing reads.

The lawsuit further alleges Ferry and Lt. Gov. Henderson are demanding Hardy compete against an ineligible candidate.

“Ferry’s ineligibility to serve as Representative for House District 1 necessarily means that his inclusion on the ballot requires Hardy to campaign against a straw man candidate rather than the Republican candidate who will become Representative if elected,” the suit claims.

Additionally, the lawsuit says leaving Ferry on the ballot, allowing Republican delegates instead of voters to decide who represents House District 1 for the next two years, violates Hardy’s constitutional rights because the voters in House District 1 will not be able to vote for the candidate of their choice.

“Defendants would do well to remember that ours is ‘[a] government of laws and not of men.’ They and URP are not permitted to thwart an election, so they can select a successor to Ferry behind closed doors. It is Utahns — not the LG, not Ferry, and certainly not URP — who are the sovereign of this great state,” the lawsuit says.

Time could play a significant factor in the suit. The deadline to print the 2022 ballots is looming as most county clerks must send the final ballot versions to the printer by next week to get them in the mail so they reach overseas and military voters in time.

Henderson’s office declined to comment on a pending legal matter. The Utah Democratic Party and Hardy did not immediately respond to requests for comment.

Three Republicans have filed as write-in candidates for the House District 1 seat. Karson Riser and Thomas Peterson jumped into the race last month. Ben Ferry, who served in the Utah House from 1999 to 2010, joined the fray just before Tuesday’s filing deadline. Ben is Joel’s uncle.

Ferry’s resignation set the process in motion for the Utah GOP to appoint someone to fill out the remaining three months of his term. Republican delegates in House District 1 will meet in Brigham City on Sept. 20 to elect a replacement. Candidate filing for that election opened Thursday morning.