Anchorage judge hears request to dismiss Eastman eligibility lawsuit

An attorney representing the Alaska Division of Elections said Friday in court that the agency should not be in charge of deciding whether Wasilla Republican Rep. David Eastman is ruled ineligible to serve in the Alaska Legislature.

Eastman and the division are facing a lawsuit that seeks to declare Eastman in violation of the Alaska Constitution’s disloyalty clause and thus ineligible to serve as a lawmaker.

In a hearing Friday, Anchorage Superior Court Judge Jack McKenna set a tentative December trial date to decide the merits of the case. 

Trial will occur only if McKenna rules against motions seeking to dismiss the suit as invalid. Under Alaska’s rules of civil procedure, defendants need to meet a high standard in order to be dismissed from a case.

McKenna is expected to decide on Monday whether the Alaska Division of Elections will be dismissed as a defendant. A dismissal request is expected by Eastman later.

A preliminary injunction hearing on Sept. 20 could decide whether Eastman is blocked from participating in this fall’s general election. Ballots have already been printed for his legislative race. 

The division and Eastman were sued July 29 by Randall Kowalke, a Matanuska-Susitna Borough resident and former borough assemblyman who claims Eastman’s lifetime membership in the Oath Keepers, a far-right militia, violates the disloyalty clause of the Alaska Constitution.

That clause states in part that no one who belongs to an “organization or association which advocates, the overthrow by force or violence of the United States or of the State, shall be qualified to hold any public office” in Alaska.

Members of the Oath Keepers, including the group’s founder, have been charged in connection with the Jan. 6, 2021, insurrection at the U.S. Capitol. Several are expected to go to trial later this month, and some have already pleaded guilty.

Eastman attended protests that preceded the insurrection but said he did not approach the Capitol, and he has not been charged with any crimes.

In June, the Division of Elections received multiple challenges to his eligibility, including one from Kowalke, but concluded that a “preponderance of evidence supports his eligibility.”

After the lawsuit was filed, the Division of Elections asked to be dismissed from the case, and McKenna heard oral arguments on Friday. 

Arguing on behalf of the state, Assistant Attorney General Lael Harrison said the division lacks the authority to investigate the claims against Eastman and disqualify him if necessary.

“The division’s statute and regulations calls only for (a) review of internal division documents and public state agency records. Again, the division doesn’t have the power to conduct an investigation,” she said.

“The Division of Elections should not be the loyalty police,” Harrison said. 

“Putting that division in that position could really undermine the public’s perception of the division as a nonpolitical actor,” she said.

If the division is not in charge, McKenna asked, who should be?

The Legislature, Harrison replied, referencing a statute that says the Legislature shall judge the qualifications of its members.

“It would seem odd,” McKenna said, offering a hypothetical situation, “that someone who has clearly violated the disqualification for disloyalty clause could be elected but then it’s up to the Legislature to remove them from office. That just doesn’t seem like it would make much sense.”

Attorney Joe Miller, a former Republican U.S. Senate candidate representing Eastman at trial, said accepting Kowalke’s lawsuit would create practical problems.

“Can you imagine the outcome of it? I mean, the next time it may be somebody that’s affiliated with the NRA, or somebody affiliated with Black Lives Matter, antifa or one of these other organizations out there that somebody disagrees with or has some sort of problem with,” he said.

Attorney Savannah Fletcher, representing Kowalke, said the division’s position is incorrect and cited a state regulation that requires the division to review complaints regarding “candidate qualifications” as defined by the U.S. Constitution, Alaska Constitution and state law.

She then referred to the text of the disloyalty clause, which specifically states that a violator shall not be qualified to hold public office.

“There you have it. If you need the magic word ‘qualification,’ … this provision in the constitution even contains that term,” she said. 

Fletcher argued that the division is attempting to impose an artificial limit on itself.

“You have a duty to investigate eligibility because we care about fair elections where individuals can vote for legitimate candidates on a ballot,” she said. 

Correction: This article and its headline have been corrected to take into account a preliminary injunction motion that could leave Eastman ineligible to participate in the fall general election. A prior version of this article incorrectly stated that Eastman’s eligibility for the election would not be decided until after the election, unless a judge granted motions to dismiss the relevant lawsuit. An injunction could also leave Eastman ineligible to participate.