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Extreme-right Wasilla Republican Rep. David Eastman is likely ineligible to hold public office under the Alaska Constitution’s disloyalty clause, a judge ruled Thursday.
In a nuanced preliminary ruling, Anchorage Superior Court Judge Jack McKenna found Eastman’s membership in the anti-government militia group the Oath Keepers likely violates the state’s disloyalty clause that states: “No person who advocates, or who aids or belongs to any party or organization or association which advocates, the overthrow by force or violence of the government of the United States or of the State shall be qualified to hold any public office of trust or profit under this constitution.”
The ruling stops short of ordering the Division of Elections to reprint ballots without Eastman’s name but orders the state to delay the certification of the House District 27 race to December in order to allow the full trial to play out. As Judge McKenna notes in his order, this ruling is based on limited evidence and assumptions that several of the allegations brought by resident Randall Kowalke are true.
“It is readily apparent that the Oath Keepers are an ‘organization’ or ‘association’ with by-laws, leadership, dues and tens of thousand of members,” Judge McKenna wrote. “Kowalke and Rep. Eastman differ on whether the organization advocates for the overthrow of the United States by force.”
The Wasilla Republican has been no stranger to controversy since joining the Legislature in 2017, but his membership in the Oath Keepers came under intense scrutiny after the group’s members and leadership were indicted for playing a key role in the Jan. 6 insurrection. Though Eastman was in D.C. on Jan. 6, no evidence has emerged to suggest he was involved in the Oath Keepers’ paramilitary activities that day or entered the U.S. Capitol.
Facing pressure in the Alaska Legislature, Eastman hasn’t condemned the group or disavowed his membership. Most elected Republicans stood by Eastman, refusing to support efforts to censure or remove him from the Legislature over his membership in the Oath Keepers (though they later booted him from their caucus for other reasons, which was the second time he’s been removed from the GOP caucus).
Eastman and his Republican supporters argued membership in the group doesn’t equate to support for overthrowing the government through force or violence, generally pointing to the group’s wink-and-a-nod by-laws that talks more about upholding the U.S. Constitution than overthrowing it.
Judge McKenna found, however, that determining whether the group advocates for the overthrow of the government should be based on more than just its by-laws. To that point, Judge McKenna relied on affidavits from researchers who’ve tracked extremist groups as well as the upcoming trial for Oath Keepers leader Stewart Rhodes.
“An organization is defined not only by its by-laws, but also by the actions and statements of those who purport to lead it. And the limited evidence before the court appears to show that the Oath Keepers are an active organization with an interim president who is serving ‘in lieu of Mr. Rhodes until he is released,’” he wrote. “This implies that the Oath Keepers’ current leadership has not disavowed its prior leaders’ and members’ criminal actions on January 6.”
In layman’s terms: As is often the case with legal rulings, it appears that Judge McKenna is applying a straightforward test of the Alaska Constitution’s disloyalty clause. Does Eastman belong to a group that advocates for the overthrow of the government? He definitely belongs to the group and even though he claims that he’s not been directly involved, the Alaska Constitution doesn’t contain a carveout for people who don’t show up to meetings. You’re either part of the group or you’re not. What it’ll come down to is whether the Oath Keepers group advocates for the overthrow of the government. That’s a tougher case to nail down but the upcoming trial of Oath Keepers leader Rhodes and other members for seditious conspiracy ought to go a long way to determining that point.
The state response and election impacts
The Division of Elections has opposed this lawsuit throughout the process.
Initially, the state sought an exit from the lawsuit by essentially arguing that it’s not the Division of Elections’ job to enforce the Alaska Constitution’s disloyalty clause. At that stage in the trial, the state argued that it should be left to the membership of the Alaska Legislature to review whether the disloyalty clause should invalidate someone’s membership. Given that Eastman’s membership in the Oath Keepers already came up in the Legislature, resulting in an entirely political exercise of Republicans circling the wagons to protect Eastman.
Judge Mckenna disagreed, finding that the Alaska Constitution is, in fact, enforceable.
The state continued to oppose the latest injunction against Eastman, arguing that removing Eastman from the ballot or delaying his certification—in the event that he’s ineligible to hold office altogether—would undermine the public’s confidence in the results of the election.
Attorneys representing Kowalke have argued against this point, noting that if Eastman is allowed to be seated in the Legislature but ultimately removed, then the decision of who represents House District 27 would be left to the governor to decide. They argue that the public should have a role in deciding their representation in this election, a point that Judge McKenna agreed with.
“For this reason, deciding what relief to order requires the court to balance the public’s interests discussed above—both in an orderly election and to determine who represents them—with Kowalke’s interest in pursuing appropriate injunctive relief. In turn, those interests must be balanced with Rep. Eastman’s interest in having a full and fair opportunity to defend against this suit,” Judge McKenna wrote.
Judge McKenna agreed that it’s likely not feasible to order a reprinting of ballots without Eastman’s name on them without disrupting the election. Instead, he ordered the Division of Elections to delay the certification of the election until after this trial is resolved, which is expected to be in December. Under the state’s ranked-choice voting system, Eastman could be removed and votes would be reallocated according to voters’ rankings. And if Eastman wins both the election and this lawsuit, he’ll be seated.
“Under either scenario,” Judge McKenna wrote, “the voters of House District 27 have a say in who represents them.”
Eastman protested against this point, arguing that having this order in place would harm him in the course of the election.
McKenna agreed it’s possible but noted that the lawsuit already exists.
“The court acknowledges that uncertainty surrounding the procedures and timing of an election is never desirable. But the court finds that any additional prejudice to him is speculative and likely no more prejudicial than the impact that already exists because of this litigation,” McKenna wrote. “This situation is unprecedented and the court must attempt to balance the competing rights and interests implicated by this litigation.”
Eastman is currently in a three-way race for re-election against Republican candidates Stu Graham and Brendan Carpenter. In the primary election, Eastman won 52% of the votes to Graham’s 26.3% and Carpenter’s 21.7%.