On Thursday, attorneys representing the Alaska Division of Elections, and Rep. David Eastman (R-Wasilla), asked an Anchorage Superior Court Judge to dismiss a lawsuit challenging Eastman’s eligibility for office. This was to avoid a trial to determine if Eastman has violated the Red Scare-era loyalty provision in the Alaska Constitution.
Judge Jack McKenna stated that he will issue a ruling on Friday after more than an hour’s worth of oral argument. All sides should prepare for Monday’s trial.
The trial will answer two important questions.
- Is Eastman a member the Oath Keepers? A group whose leaders have been convicted for federal crimes related to the Jan. 6, 2021 rebellion at the U.S. Capitol.
- Are the Oath Keepers for the overthrow or violence of the U.S. government?
McKenna could declare Eastman ineligible for the Alaska Legislature, despite Eastman’s win in the November general elections. The second-place finisher could replace Eastman in the Legislature.
Randall Kowalke, Matanuska Susitna Borough resident, hopes that this will be the case. He filed suit against Eastman in July, hoping for Eastman’s disqualification.
McKenna must rule on several preemptive defenses made by Joe Miller (the attorney representing Eastman) before the trial can begin.
It is not a mistake to approve Eastman, Division of Elections arguments
The attorneys representing the division stated that the agency didn’t make a mistake in approving Eastman’s candidacy, and did not investigate whether Eastman had violated Article XII Section 4 of the state constitution.
This clause prohibits anyone from holding office in Alaska if they are “aiding or belonging to” a party, organization, or group that advocates the overthrow of the federal or state governments.
Nearly two dozen people filed complaints challenging Eastman’s eligibility under the clause. However, attorney Lael Harrison stated that the division does not have the legal authority to investigate beyond the examination of public records.
She said that state records don’t contain a list of which organizations a candidate is a member or whether they violate the disloyalty provision. She also said that state law doesn’t give the division the power to conduct independent investigations and issue subpoenas.
McKenna asked Harrison if that conflicted with , a state regulation which requires the division’s head to review candidate qualifications in accordance to guidelines established by the federal and/or state constitutions.
Kowalke’s lawyers argued that the division should enforce the constitution’s loyalty clause because no other state agency will. McKenna has issued an interim order stating that the division is responsible.
Harrison acknowledged that the regulation exists, but stated that there was a lack of standards and criteria for how it should be enforced.
Harrison stated that the plaintiff believed the division should have started calling people and just got people on the phones: “Hey, does this organization advocate the overthrow of the United States government by force or violence?”
Harrison and the division argue that the division followed state law and should be disqualified as a party. The state has not taken a position on whether the disloyalty provision applies to Rep. Eastman.
Eastman claims plaintiff does not have standing or authority to sue
Joe Miller, a conservative Alaskan attorney who ran twice against Lisa Murkowski for the U.S. Senate, was on Thursday’s defense of Eastman.
Miller presented a number of defenses to the lawsuit in prerial briefings as well as in court. He stated that Kowalke does not have the standing to bring the case and that only the Legislature can determine a legislator’s qualifications. Also, that Kowalke has not presented any facts prior to trial to prove that Eastman and the Oath Keepers have violated the disloyalty provision.
Miller stated that Kowalke is not eligible to sue Eastman because he doesn’t reside in Eastman’s District.
Kowalke’s Goriune Dudukgian said that it was “pretty evident” that all Alaskans are interested in Juneau. He cited , a 1983 Alaska Supreme Court case, in which the court upheld the right of a voter to challenge a state plan to redistrict another district.
Miller cited Article II (section 12) of the state constitution. He claimed that this clause proved that the Legislature and not the court should decide Eastman’s eligibility. Miller argued that the case should be dismissed because the Legislature did not vote against the intervention in the lawsuit.
McKenna asked Miller about precedent. The Alaska Supreme Court has twice ruled in cases where a legislator’s eligibility was questioned under a clause in the constitution that prohibits them from holding other jobs with the state.
McKenna stated, “So what’s the real difference between the disqualification under Article II, Section 5, or Article XII Section 4?”
Miller explained that the difference is that the court in the previous cases ruled on the “secondary question”, which is the dual office provision, and not the qualifications of the legislators.
As the arguments progressed, McKenna questioned Dudukgian about how the disloyalty provision compares with the 1957 U.S. Supreme Court decision in Yates v United States. This case ruled that the First Amendment does not protect radical speech unless it causes a “clear, present danger.”
McKenna stated, “What’s the constitutionally protected area?”
Dudukigan stated that the line between incitement and actual action is the one in the sand.
Miller stated that Miller was not able to provide any evidence that Oath Keepers had advocated overthrow of the U.S. Government or that Eastman did.
Dudukgian stated that the Jan. 6 insurrection at U.S. Capitol and subsequent guilty verdicts against Oath keepers prove otherwise. He said it was an unusual situation and rebutted Miller’s argument that a ruling against Eastman could lead to similar cases against other politicians.
“I don’t believe the court should be concerned about opening Pandora’s Box. Dudukgian stated that Jan. 6’s events, along with those of the Oath Keepers, Proud Boys, and other organizations, were a rare event in American history in which groups attempted a coup in Washington, D.C.
He stated, “Nobody has done what Oath Keepers did. This is not just using rhetoric and words but also following them up with actions, coordinated and planned an armed rebellion at our nation’s capital.”
The Alaska Beacon originally published this story. It is republished with permission.
