SALT LAKE CITY (AP) — Utah Democrats are demanding that Gov. Spencer Cox’s pick to head the Department of Natural Resources resign his legislative seat and withdraw from the November ballot, saying it violates the state constitution for him to serve in both roles.

Cox selected Republican state Rep. Joel Ferry as the agency’s executive director, a cabinet position. Ferry has been serving in an acting role pending his confirmation by the Utah Senate, but he’s hanging onto his legislative seat and he remains on the ballot in House District 1.

The Utah Democratic Party says that violates the separation of powers between the executive and legislative branches set out in the Utah Constitution, The Salt Lake Tribune reported.

The governor’s office has previously argued that it doesn’t, because Ferry resigned from legislative committees and assignments that would govern natural resources-related issues and he is not taking any compensation for his legislative role.

On Thursday, legal counsel for the Utah Democratic Party and Joshua Hardy, Ferry’s opponent in November, wrote to Lt. Gov. Deidre Henderson’s office asking for Ferry to be disqualified from the ballot since he’s ineligible to hold office if he is reelected.

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“The separation of powers provisions of our state constitution requires that legislators only perform legislative duties. Mr. Ferry cannot perform executive duties while holding legislative office, even if he is working for both offices for free,” the letter said.

Lt. Gov. Henderson’s office did not respond to a request for comment, the Tribune reported.

The issue puts the state GOP in a tough spot. The seat has been solidly Republican for years, but it’s too late to replace Ferry on the ballot, and Hardy is the only other candidate on it. Republican Karson Riser filed as a write-in candidate last week.

Utah GOP Chairman Carson Jorgensen said Democrats were trying to take advantage of a legal loophole to try and win an election they otherwise would lose handily. Utah law allows a party to swap a candidate on the ballot if they die, resign due to a physical or mental disability, are disqualified for improper filing or nominating procedures, or resign to run for president or vice president. Ferry’s situation does not apply.

“The Legislature should include ‘appointment by the governor’ to reasons for replacing a candidate on the ballot. It’s not fair to the process to nullify the vote of Republicans in an entire district because the governor appointed the candidate to serve at the state level,” Jorgensen said.

The Senate has yet to schedule Ferry’s confirmation hearing. A vote to confirm him to the full Senate could either happen during the next interim session on Sept. 21 or wait until the October interim, after the time mail-in ballots are sent to voters.

Copyright 2022 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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