Federal judge won’t stop ballot printing while Democrats make case against Joel Ferry in Utah House race

“This is about integrity and following the Constitution. Ferry is blatantly violating it, and he knows it,” says Democratic challenger Joshua Hardy.

(Trent Nelson | The Salt Lake Tribune) Former state Rep. Joel Ferry, right, in the House Chamber during a special legislative session, at the State Capitol in Salt Lake City on Tuesday, Nov. 9, 2021. A lawsuit aiming to force Ferry off of November's ballot hit a snag on Monday as a federal judge declined to issue a preliminary injunction in the case. Ferry's Democratic opponent says he's still confident he'll prevail.

A federal judge won’t block the printing of election ballots while Utah Democrats sue to force former state Rep. Joel Ferry from the November ballot — but left the door open to claims that Ferry was violating federal law by staying in the Utah House race while working for Gov. Spencer Cox’s administration.

U.S. District Court Judge Jill Parrish, in a ruling late Monday, declined the request from Utah Democratic Party to halt ballot printing while their lawsuit is pending. Most county clerks must send ballots to the printer sometime this week so they have ample time to reach military and overseas voters.

The federal judge wrote in the ruling that she was reluctant to weigh in on matters revolving around the Utah Constitution and Utah law. She ordered the Utah Democrats to submit further arguments relating to the Hatch Act and the U.S. Constitution by Thursday.

In late June, Gov. Spencer Cox nominated Ferry as the Utah Department of Natural Resources executive director. Ferry remained in his HD1 seat for two months before formally resigning from the Legislature in late August. Critics, mostly Democrats, said that dual role violated Utah’s constitutional separation of powers.

Despite resigning, Ferry remains on the November ballot in House District 1. If Ferry is removed from the ballot, the only candidate would be Democrat Joshua Hardy. Lt. Gov. Deidre Henderson, the state’s top elections official, declined a request from Democrats to disqualify Ferry as a candidate since he was ineligible to take office.

“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 at the time. She said that her hands are tied because there is no Utah law about the issue.

In their lawsuit, Democrats claim if Ferry prevails in November, he will likely resign again. That forces Hardy to run a campaign against a “straw man” who has no intention of serving if he wins. The suit also alleged Ferry is violating a provision in the federal Hatch Act that blocks state employees from certain political activities if they work with programs that receive federal funds.

“This Hatch Act violation and state constitutional separation of powers provision both depend on the same issue: whether an executive director of a department in Utah’s executive branch (whose office receives significant federal funds) can run for partisan political office in Utah’s legislative branch,” the lawsuit argued.

Utah law has a provision, often referred to as the “Little Hatch Act,” that requires the state to conform with the federal version of the law.

Hardy said Tuesday, despite the setback, he was confident the judge would see Ferry was violating both the federal Hatch Act and the U.S. Constitution.

The district is overwhelmingly Republican. According to political data firm L2 Data, registered Republicans make up over 65 percent of voters in the district, while registered Democrats account for slightly less than five percent. Ferry will be a heavy favorite to win if he remains on the ballot. If Ferry were removed from the ballot, the GOP would have a more difficult time hanging on to the seat, as there are three Republicans who have filed as write-in candidates in the race.

That’s the problem, according to Hardy.

“If Ferry studied the Constitution, he would realize he is in the wrong. He would remove his name from the ballot and allow the voters to choose someone who is willing to represent the people in District 1. The voters deserve a representative who will actually get stuff done for them,” Hardy said.

Ferry did not respond to a request to comment on Tuesday and is currently out of the country on a trade mission with Cox.

As the legal battle over Ferry’s candidacy continues, Republicans are moving to pick someone to serve the remaining three months of his term. Utah GOP Chairman Carson Jorgensen said, so far, four candidates had filed. Republican delegates will elect a replacement next week. If Ferry wins in November and resigns, those same delegates will select someone to fill his seat again.