Will the Utah Supreme Court remove Joel Ferry from November’s ballot? Democrats are hopeful.

Ferry says he hasn’t decided whether he’ll stay the head of the Utah Department of Natural Resources or return to the Utah Legislature if he wins in November.

Rick Egan | The Salt Lake Tribune) Rep. Joel Ferry speaks during the Great Salt Lake Summit at the Davis Conference Center in Layton, Wednesday, January 5, 2022. Democrats are heading to the Utah Supreme Court to try to remove Ferry from November's ballot.

Utah Democrats plan to make their case to the Utah Supreme Court after a federal judge declined their request to block the printing of ballots ahead of November’s election, which means Republican Joel Ferry is still on the ticket in Utah House District 1.

Despite the setback, the legal fight is not over, Democrats say.

On Friday, Utah Democrats and House District 1 Democratic candidate Joshua Hardy said they’ll take their case to the Utah Supreme Court, seeking to disqualify Ferry because his candidacy violates the Utah Constitution.

“The Republican Party and Ferry are trying to undermine our free and fair elections so that Republican delegates can choose their representative and not the voters,” Hardy said in a text message on Friday.

Hardy says Ferry’s continued presence on the ballot is unfair to him and to Republicans Karson Riser, Ben Ferry and Thomas Peterson. They have filed as write-in GOP candidates for the November election.

“It’s time that we set a precedent in Utah that our state is not ruled by one party, but by our Constitution and the rule of law,” Hardy said.

In June, after Gov. Spencer Cox nominated Ferry to head the Utah Department of Natural Resources in June, Ferry initially refused to resign his seat in the Utah Legislature, which led to accusations that he violated the separation of powers in Utah’s Constitution. An executive branch member cannot simultaneously hold a seat in the Legislature. Ferry eventually resigned his seat in the Utah House nearly two months after his nomination.

Ferry had already secured the Republican nomination for another term in the Utah House when Cox picked him to join his administration. Unfortunately for the GOP, it was too late to replace him on the ballot.

Democrats contend Ferry knows he’s ineligible to serve if he’s elected in November and his refusal to withdraw is nothing more than an attempt to make sure there’s a Republican on the ballot.

Last month, Lt. Gov. Deidre Henderson refused requests from Democrats to disqualify Ferry from the November election. Democrats went to federal court to stop elections officials from printing ballots while their claims that Ferry was ineligible to serve were adjudicated.

In response to the Democratic lawsuit, Ferry’s lawyers argued there’s a chance that the Utah Senate won’t confirm Ferry. Additionally, they suggest there’s a possibility that Ferry will choose to return to his legislative seat if he wins the election in November.

“Plaintiffs not only do not know whether Ferry will be confirmed, they do not know which job Ferry would choose if elected,” his lawyers argued in a court filing.

The Utah Senate will hold a final vote on his nomination next week. If Ferry wins November’s election and decides to remain as part of Cox’s cabinet, he would have to resign again before ever taking office.

If Ferry were to win the election but chooses to keep the DNR job, it would be up to a handful of Republican delegates to decide who represents the district for the next two years.

During a brief telephone conversation with The Tribune on Friday, Ferry accused Democrats of trying to disenfranchise voters by removing him from the ballot.

“I don’t think what I’m doing violates the constitution. They’re trying to rob the voters of the chance to vote for someone who would represent their values in November,” Ferry said.

Ferry refused to answer whether he would commit to returning to the Legislature if he won the election.

“I’m going to keep all my options available,” he said.

While the pre-election legal wrangling continues, Republican delegates meet next Tuesday to name a replacement to fill the remaining three months in Ferry’s current term. So far, four candidates are vying for that slot. The candidate filing period closes Saturday evening.