Utah Dems sue to get new acting director of state office off November ballot

SALT LAKE CITY — The Utah Democratic Party filed a federal lawsuit Thursday against Lt. Gov. Deidre Henderson and the new director of a state office in an attempt to remove him from a legislative race.

Former state Rep. Joel Ferry, R-Brigham City, was appointed by Gov. Spencer Cox to be the new executive director of the Utah Division of Natural Resources in late June. As he waited to be confirmed by the Legislature, which didn’t meet in July, he said he would hold onto his seat.

The Democratic Party said Thursday it believes Ferry remains on the ballot despite having “no intention of serving his community in the House if reelected.”

“This is a matter of fairness, ethics and accountability. The people of House District 1 deserve better than a straw man candidate standing in for whomever a small group of radical GOP insiders choose to fill the seat. This is nothing more than shady, back-room political dealing seeking to cut voters out of the equation entirely, and that is why we’re asking a judge to force Ferry’s removal from the ballot,” the party said in a statement.

Ferry did not immediately respond to requests for comment on Friday.

Utah Department of Natural Resources appointee causes uproar from Dems

Should Ferry be eliminated from the ballot, his Democratic opponent Joshua Hardy would run unopposed in the election, in a rural district that historically votes Republican. The lawsuit notes that when they opposed each other in 2018, Ferry in 2018 received 73.7% of the vote while Hardy received 17%.

Last month, Ferry indicated he wanted to continue serving until his confirmation.

“I do not plan to step down at this point, but in the off chance that I don’t get confirmed by the Senate, I feel like I have been a good representative for my community and would want to continue to represent them,” Ferry told KSL.com in August, after the Democratic Party first called for his resignation.

Ferry has served in the Utah House since 2019.

The Democratic Party contends that he was no longer eligible to serve in the Legislature after he started working for the state office. But Ferry said he believes he could continue in his seat, as he was only the acting director at that time. He said he removed himself from any committees that “overlapped” with his position at the Division of Natural Resources, and that he was foregoing legislative pay.

NEW: Yesterday, we filed a lawsuit seeking to remove Joel Ferry from the HD-1 ballot.

Even after resigning from the #utleg to work at the DNR, he remains on the ballot, violating the constitution and the Hatch Act.

Read our full statement at https://t.co/czkqB32KGL#utpol pic.twitter.com/T38GMuFVwI

— Utah Democratic Party (@UtahDemocrats) September 8, 2022

A Senate committee on Aug. 26 gave Ferris a favorable recommendation, and he subsequently resigned. He awaits confirmation from the full Senate and his name remains on the ballot.

After the Democratic Party initially requested Henderson that disqualify Ferry from the race, she responded in a letter, saying that she makes no conclusion on the constitutionality of his status as both acting director of the state office and candidate for the Legislature.

Henderson noted that none of the criteria in Utah Code that would require someone to be removed from a ballot — including death, resignation due to a new physical or mental disability, improper filing, or registering to run as president or vice president of the U.S. — apply to this situation.

“In the absence of any of the aforementioned circumstances, there is no statutory basis on which I may affirmatively disqualify a candidate. At this time, whether or not Mr. Ferry remains on the ballot is entirely up to him,” the lieutenant governor said.

Henderson’s spokesman declined to comment Friday on the litigation but said her position on the matter remains the same.

The Democratic Party contends that Henderson “declined to do her job, passing the buck and prioritizing partisan and political loyalty over fairness and constitutionality.”

“Joel Ferry finally resigning doesn’t mean that the issue of his presence on the ballot is solved. Since the lieutenant governor refuses to remove him, and he will not remove himself, we had no other choice but to bring this in front of a judge,” Diane Lewis, party chairwoman, said in a statement.

The lawsuit claims “votes are diluted and rendered ineffective … voices are muted, and … interests are impaired because of (Henderson’s and Ferry’s) actions and inactions.”

Attorneys wrote that Ferry remaining on the ballot “impairs” the Democratic Party’s ability to “strategically deploy funding to state legislative races; recruit volunteers throughout the state; and engage in voter mobilization efforts” by reducing voter interest in that race.

The complaint argues that if Ferry wins the race — as he is likely to do based on past election results — he will be ineligible to take office and will again resign, allowing the Republican Party to appoint a person to fill the position.

Calling Ferry a “straw man candidate,” attorneys write that the party will be unable to “strategically plan” for the election without knowing who could actually take the office in Ferry’s place.

The lawsuit also points to the Hatch Act, a federal law that limits the political activities of federal employees and state employees who work with federally funded programs. Attorneys note that Ferry’s pay comes largely from federal funding.