Judge hears arguments on whether to dismiss Eastman eligibility lawsuit

Attorneys representing the Alaska Division of Elections and Rep. David Eastman, R-Wasilla, urged an Anchorage Superior Court judge on Thursday to dismiss a lawsuit challenging Eastman’s eligibility for office and avoid a trial intended to determine whether Eastman has violated a Red Scare-era loyalty clause in the Alaska Constitution.

After more than an hour of oral argument, Judge Jack McKenna said he intends to issue a ruling by Friday. In the meantime, all sides should be prepared for a trial to begin Monday.

That trial is intended to answer two key questions:

• Is Eastman a member of the Oath Keepers, a group whose leaders were convicted of federal crimes associated with the Jan. 6, 2021 insurrection at the U.S. Capitol? 
• Do the Oath Keepers advocate the overthrow of the U.S. government by force or violence?

If McKenna concludes that the answer to both questions is “yes,” he could rule Eastman ineligible to serve in the Alaska Legislature despite Eastman’s victory in the November general election. Eastman could be replaced in the Legislature by the second-place finisher.

That’s the hope of Randall Kowalke, a Matanuska-Susitna Borough resident who filed suit in July, hoping to force Eastman’s disqualification.

But before the trial may begin, McKenna must first rule on several pre-emptive defenses brought by the Alaska Division of Elections and Joe Miller, the attorney defending Eastman.

No mistake in approving Eastman, Division of Elections argues

In written arguments and in court on Thursday, attorneys representing the division said the agency did not make a mistake when it approved Eastman’s candidacy without investigating whether Eastman had violated Article XII, Section 4, of the state constitution.

That clause bans someone from holding office in Alaska if they “aid or belong to” a party or organization that “advocates the overthrow by force or violence” of the state or federal government.

Elections officials received almost two dozen complaints challenging Eastman’s eligibility under that clause, but attorney Lael Harrison said the division lacks the legal authority to conduct an investigation beyond simply examining public records.

State records, she said, don’t include a listing of what organizations a candidate belongs to or whether those organizations violate the disloyalty clause. Furthermore, she said, state law hasn’t given the division the ability to conduct independent investigations or issue subpoenas.

McKenna asked Harrison whether that conflicts with a state regulation requiring the division’s director to review candidate qualifications according to guidelines set by the federal and state constitutions, not just state law.

Kowalke’s attorneys have argued that the division must enforce the constitution’s disloyalty clause because no other state agency will, and McKenna has issued a preliminary order holding that the division does bear responsibility.

Harrison acknowledged the regulation but said there is a “total lack of standards” and a “total lack of criteria” as to how to enforce it.

“The plaintiff apparently believes the division … should have just started calling people, just get people on the phone: ‘Hey, does your organization advocate the overthrow by force or violence of the United States government?’” Harrison said.

Harrison and the division contend that the division took the steps that state law requires and should be dismissed as a party to the case. The state has taken no position on the question of whether the disloyalty clause applies to Rep. Eastman.

Eastman argues plaintiff lacks standing, authority to bring suit

Defending Eastman on Thursday was Joe Miller, the conservative Alaska attorney who twice ran for U.S. Senate against Lisa Murkowski.

In pretrial briefings and in court, Miller offered a variety of defenses against the lawsuit, saying Kowalke lacks standing to bring the case, that only the Legislature can judge a legislator’s qualifications, and that as a matter of law, Kowalke hasn’t presented facts before trial to show that Eastman or the Oath Keepers violate the disloyalty clause.

Miller said that because Kowalke doesn’t live in Eastman’s district, he is ineligible to bring a lawsuit against Eastman. 

Goriune Dudukgian, representing Kowalke, said it is “pretty obvious that all Alaskans have an interest in what happens in Juneau,” and he pointed to a 1983 Alaska Supreme Court decision in which the court upheld the ability of a voter outside a district to challenge a state redistricting plan affecting another district.

Miller cited Article II, Section 12, of the state constitution, which says in part that “Each (house of the Legislature) is the judge of the election and qualifications of its members.” He argued that clause proves the Legislature, not the court, should determine Eastman’s eligibility. Because the Legislature voted against intervening in the lawsuit, Miller said, the case should be dismissed.

McKenna asked Miller about precedent — the Alaska Supreme Court has twice before ruled on cases in which a legislator’s eligibility was challenged under a clause of the constitution that prevents a legislator from holding another job with the state.

“So what’s really the difference between the disqualification in Article II, Section 5, and Article XII, Section 4?” McKenna said.

The difference, Miller said, is that in the prior cases, the court ruled on the “secondary issue, which is the dual offices provision,” not on the legislators’ qualifications.

As the arguments proceeded, McKenna asked Dudukgian how the disloyalty clause compares to the U.S. Supreme Court’s 1957 decision in Yates v United States, which ruled that the First Amendment protects radical speech unless it creates a “clear and present danger.”

“What’s the area that’s constitutionally protected, and what’s not?” McKenna said.

The line in the sand is incitement to action or actual action, Dudukigan said, “and that’s the case with the Oath Keepers.”

“There’s not a scintilla of evidence,” Miller said, that the Oath Keepers advocated the overthrow of the U.S. government or that Eastman did so.

The Jan. 6 insurrection at the U.S. Capitol, followed by guilty verdicts against Oath Keepers, prove otherwise, Dudukgian said. That was a unique situation, he said, rebutting an argument from Miller, who said that a ruling against Eastman could open a “Pandora’s box” of similar cases against politicians of all kinds.

“As far as opening up a Pandora’s box, I don’t think the court needs to be worried about that. Because what happened on Jan. 6, and what happened with the Oath Keepers, Proud Boys and some other organizations, was a unique event in American history where groups actually staged an armed rebellion and attempted coup in Washington, D.C.,” Dudukgian said.

“Nobody else has done what the Oath Keepers did, which is not just use rhetoric and words, but actually follow them up with actions, coordinated, planned and staged an armed rebellion in our nation’s capital,” he said.