The case against a legislator who is accused of violating Alaska’s disloyalty clause will not be heard by the Alaska Supreme Court. This would have prevented him from being allowed to assume office.
Randall Kowalke, Matanuska Susitna Borough resident, stated Tuesday that he would not appeal to the state’s lower court defeat to its high court because of the risk of an unsuccessful argument.
This decision will mean that Rep. David Eastman (R-Wasilla) is set to be sworn into office Jan. 17th. However, it leaves legal uncertainty around how the disloyalty provision should be applied in the future.
Kowalke stated that he was “absolutely disappointed” by the outcome of the lawsuit against Eastman and Alaska Division of Elections. Kowalke sued Eastman in July to challenge the division’s decision not to certify Eastman as candidate despite several objections.
Kowalke claimed that Eastman’s membership of the Oath Keepers was a violation of a clause in the Alaska Constitution. This group is linked to the Jan. 6th 2021 insurrection at U.S. Capitol.
This clause, was written in the 1950s Red Scare and states that any person who “advocates or aids” a group advocating the overthrow of U.S. government can’t hold office in Alaska.
Superior Court Judge Jack McKenna concluded that Eastman was a member Oath Keepers. The group does support the overthrow U.S. government. However, the First Amendment to the U.S. Constitution protects Eastman unless he had “a specific intention to further the Oath Keepers’ words or actions aimed towards overthrowing United States government.”
Although Eastman was at the Capitol’s protests during the Jan. 6, insurrections, McKenna determined that Eastman’s presence was not related to any calls for action by Oath Keepers. He did not violate The First Amendment.
Kowalke stated that he was not satisfied with the ruling.
He said that he was trying to find Alaska’s tolerance for this type of stuff.
An appeal seemed possible earlier in the case. But Kowalke and Goriune Dudukgian, the attorney, stated on Tuesday that McKenna’s interpretation added another hurdle.
Dudukgian stated that he didn’t wish to appeal because he would have created bad law and would be binding precedent, making it more difficult for other states to bring similar eligibility challenges in the future.
McKenna’s reasoning was not followed because the case was decided by the Alaska Supreme Court. He or she might come up with a different interpretation for the First Amendment.
Eastman responded to questions about Kowalke’s Tuesday decision via text message. “The right of voters to elect their representatives in Wasilla has been preserved but the price they were required to pay to protect that right demonstrates how Alaska courts have been used against conservative candidates and voters.” It is outrageous that Alaska’s Constitution was modified to permit this kind of lawfare.
Eastman repeatedly requested donations to help pay for his legal defense. A website set up to collect these donations says, “The cost of this trial is expected be $300,000.”
Kowalke was represented by the Northern Justice Project, a civil rights firm. They represented him pro bono. He stated that the possibility of an appeal cost was not a factor.
A representative from the Alaska Department of Law stated that McKenna’s decision is still being evaluated by the Division of Elections. He also indicated the next steps for the agency.
McKenna ruled that the Division of Elections was responsible for the enforcement of the disloyalty provision in a pretrial order. However, his final ruling on Eastman’s eligibility did not mention any future actions of the division.
Since December’s retirement of Gail Fenumiai, the Division of Elections was without an executive director.
The Alaska Legislature’s 2023 session begins on Jan. 17, in Juneau.
