by James Brooks, Alaska Beacon
December 5, 2022
In November 1955, the 55 delegates of Alaska’s constitutional convention gathered in Fairbanks, intent on drafting the fundamental document for a new state. But before they began, each member stood and swore an oath, declaring they were not a member of the Communist Party and did not support any organization that advocated the overthrow of the U.S. government.
In the 75 days that followed, the delegates debated the form of Alaska’s state government, sometimes asking themselves how the state might be governed during a nuclear war or if Alaska was invaded by the Soviet Union.
Encouraged by Congress, they included a clause that forbids someone from holding public office if they aid or belong to a group that advocates the overthrow of the U.S. government.
This month, 67 years after the delegates gathered in Fairbanks, that clause will be judged in court for the first time.
Though it was written during the waning days of the anticommunist scare of the 1950s, the clause will be tested against a member of the political right, Rep. David Eastman, R-Wasilla. Eastman has been accused of violating the clause by holding a lifetime membership in the Oath Keepers, a right-wing militia group whose founder was convicted of sedition in connection with the Jan. 6, 2021, insurrection at the U.S. Capitol.
The lawsuit challenging Eastman’s eligibility was filed by a Matanuska-Susitna Borough resident, Randall Kowalke, who said his goal is to determine the clause’s limits.
“I think the takeaway is, what’s our level of tolerance? What are we going to allow from our candidates or representatives? Are we going to allow full-blown communists? Jihad folks? Fascists? Particularly those that are supporting the overthrow of our government? I guess it’s time to find out,” he said this summer.
Attorneys representing Kowalke are asking Anchorage Superior Court Judge Jack McKenna to declare that Eastman is a member of the Oath Keepers, that the Oath Keepers advocate the overthrow of the U.S. government, and that the constitution’s disloyalty clause prohibits Eastman from holding office.
On the first point, Kowalke’s attorneys have already provided documentation showing Eastman is a “founding lifetime member” of the group. For the second, they have been aided by last week’s sedition conviction, though it’s not clear whether the judge will rule that the entire group holds its leader’s views.
The third point may be the most difficult: In order to succeed, Kowalke’s attorneys will have to demonstrate that the disloyalty clause doesn’t violate state and federal guarantees of free speech.
For decades, sedition laws in other states and those passed by the federal government have been invalidated by judges or rewritten by legislators.
Only if they succeed on all fronts, will Eastman be replaced in the state House by the No. 2 finisher in this fall’s election, Republican Stuart Graham.
If they fail, the disloyalty clause could become irrelevant, similar to the way the Alaska Constitution’s ban on gay marriage was invalidated by court order.
On Dec. 8, attorneys will argue in court about whether the case should proceed to trial. If a judge rules in the plaintiffs’ favor, the trial is slated to begin the following week, with a decision possible by the middle of the month.
Alaskans’ disloyalty, defined by Hawaiians
Kowalke filed his lawsuit in July against Eastman and the Alaska Division of Elections, which is accused of improperly approving Eastman’s candidacy. In a court filing last month, state attorneys defending the division traced the origins of the Alaska Constitution’s disloyalty clause to a visit by a U.S. senator to Hawaii in 1948 during a push for statehood there.
Hugh Butler, a Republican from Nebraska, said in a memo published the following year that his visit “leaves me with the deep conviction that international revolutionary communism at present has a firm grip on the economic, political, and social life of the Territory of Hawaii.”
Though his claims about communist infiltration were unsubstantiated, Butler was chair of the Senate committee in charge of American territories, and his belief contributed to the defeat of statehood for Hawaii at that time.
In response to Butler’s comments and those of anticommunist senators, his committee in 1950 amended a Hawaii statehood bill to require that its constitution contain a clause stating that “no person who advocates, or aids or belongs to any party … which advocates the overthrow by force or violence of the government … shall be qualified to hold any public office under the state constitution.”
When Hawaii’s constitutional delegates met later that year, they inserted a clause into their constitution that copied the congressional language almost word for word.
By 1947, he said by email, fear of the Soviet Union was nearing its peak. The Truman and (later) Eisenhower administrations identified and investigated thousands of government employees for possible disloyalty.
“Potential subversive organizations were assumed to include revolutionary leftist groups like the Communist Party USA as well as right-wing organizations such as the Nazi Party and the Ku Klux Klan,” he said by email.
Thousands of gay men and women were also fired from their jobs during these investigations because they were considered possible security threats.
“Although Second Red Scare fears were on the wane by the later 1950s, it would again seem logical to see the Alaska Constitution as a continuation of these practices at the state level,” Goodall said.
Hawaiian statehood — as well as Alaska’s — was delayed throughout the 1950s by opposition from members of the U.S. House. During that time, statehood bills were repeatedly introduced and defeated. One in 1955 stated that any constitution for Alaska or Hawaii must contain a disloyalty clause as a condition of statehood.
Though that bill never became law — and the later Alaska Statehood Act didn’t include the requirement — delegates at the constitutional convention in Fairbanks operated under the belief that the disloyalty clause was required.
The minutes of the convention contain few references to the clause, and delegate Victor Rivers noted during debate that it “is an antisubversive section, which is required, as we understand it, one of the required clauses of this constitution.”
The language used by the delegates — still in effect today — was identical to the wording used by Hawaii’s drafters in 1950.
But Hawaii has changed its wording since then. Anne Feder Lee, who wrote a book analyzing the Hawaiian constitution, noted that when Hawaii held a constitutional convention in 1968, “delegates recognized that rulings by the U.S. Supreme Court had made this language unconstitutional, as violative of the rights to association and belief guaranteed by the First Amendment to the U.S. Constitution.”
At the time, Hawaiian delegates considered deleting the section entirely but instead modified it that year and again at a convention in 1978.
The modern language now requires someone to be convicted of attempting to overthrow the government or conspiracy to overthrow the government before being disqualified.
Former Trump adviser John Eastman offers testimony
Eastman hasn’t been convicted or even accused of attempting to overthrow the government. He flew to Washington, D.C., ahead of the Jan. 6 insurrection and attended former President Trump’s rally preceding the insurrection, but in pretrial depositions and filings, he said he approached — but never entered — the restricted area around the U.S. Capitol.
Goriune Dudukgian is one of Kowalke’s attorneys and said the case isn’t about trying to put Eastman in jail.
“This isn’t a case about criminal liability. We’re not trying to send Rep. Eastman to jail. And we’re also not asking him to quit the Oath Keepers. It’s just a matter of whether he’s eligible to serve under the Alaska Constitution,” he said.
The Division of Elections, though a defendant in the lawsuit, isn’t taking a stance on that issue. Dudukgian and Kowalke’s other attorneys argue that the division failed to enforce the constitution when it certified Eastman’s eligibility for office without attempting to verify any of almost two dozen challenges.
The division, through attorneys assigned by the Alaska Department of Law, has said that it doesn’t have the power to investigate loyalty claims.
“No statute provides any guidance or other process for the division to determine a candidate’s loyalty to the government,” state attorneys wrote.
Kowalke’s attorneys disagree, saying the state constitution requires an investigation. A preliminary decision has gone in their favor but could be changed after further argument.
The bulk of the case is a challenge by Kowalke against Eastman, who is represented by attorney Joe Miller, a former two-time candidate for U.S. Senate.
Miller has offered a variety of preemptive defenses, including that the court lacks jurisdiction, that Kowalke lacks standing to bring a lawsuit, and that he failed to state a proper claim.
Kowalke’s attorneys have attempted to shoot down each of those defenses ahead of a Dec. 8 summary judgment hearing. If Kowalke wins that hearing, the case will proceed to a trial that is expected to last at least a week.
To help his defense, Eastman has the support of John C. Eastman, a constitutional attorney and former Trump adviser. The two men are not related.
In written expert testimony, John Eastman noted that the language of Alaska’s disqualification clause (and Hawaii’s before that) resembles a 1940 law known as the Smith Act that was intended to punish sedition before America’s entry into World War II.
In 1951, Communist Party officials convicted under the act appealed to the U.S. Supreme Court, and the justices ruled in favor of the act’s legality.
But six years later — 14 months after Alaskans ratified their draft constitution — the Supreme Court partially reversed itself, saying that free speech is protected unless it poses a “clear and present danger.”
Donna Haverty-Stacke, a professor of history at Hunter College in New York, has studied historical free speech prosecutions and noted that the 1957 decision “defanged the Smith Act. You needed to show that the speech led to imminent action.”
Alaska’s constitutional disloyalty clause, approved with the rest of the constitution in 1956, arrived just as public views of free speech were changing.
“Right at the moment where things are starting to thaw, Alaska put this in its constitution,” she said.
In 1966, the Georgia Legislature refused to seat Julian Bond, an activist who opposed the Vietnam War. Among the arguments made against him was the idea that his statements violated his oath to defend the Constitution of the United States.
The U.S. Supreme Court, citing the First Amendment, ruled in Bond’s favor, Eastman said, suggesting that a similar argument should prevail here.
“Under these precedents,” John Eastman wrote, “Representative Eastman’s current membership in the Oath Keepers is protected by the First Amendment, both against criminal indictment and exclusion from office.”
Kowalke’s attorneys are taking a different approach. In writing, they said the disloyalty clause is akin to the Alaska Constitution’s residency and age requirements for a legislator.
“Here, Alaska’s disqualification for disloyalty clause is nothing more or less than an additional constitutional qualification for officeholding and should be interpreted accordingly,” they wrote.
Kowalke’s attorneys suggested the court shouldn’t interpret Alaska’s disloyalty clause as banning someone from speaking abstractly about the destruction or overthrow of organized government. Instead, they said, relying on language from the 1957 Supreme Court decision, that it should be interpreted as requiring advocacy of “concrete action for the forcible overthrow of the government.”
“When judged against this standard, the words and actions of the Oath Keepers go well beyond the line of First Amendment protected speech,” they wrote.
Whatever decision Judge McKenna reaches this month, an appeal to the Alaska Supreme Court is expected. If the case is decided on First Amendment grounds, it could also head to federal court and possibly the U.S. Supreme Court.
One act could short-circuit that whole process. If Eastman quits the Oath Keepers and disavows his membership, there’s no longer a potential violation of the disloyalty oath.
“If he unequivocally and completely disavows his membership and he says, ‘Given the conviction of Rhodes and the other Oath Keepers, I’m hereby terminating any association that I have in the organization,’ then it would probably go away,” Dudukgian said.
“I don’t see that happening. But if it did, we’d have to look at it and make a final decision.”
Alaska Beacon is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alaska Beacon maintains editorial independence. Contact Editor Andrew Kitchenman for questions: [email protected]. Follow Alaska Beacon on Facebook and Twitter.