In late September, an Alaska Superior Court Judge approved a preliminary injunction regarding Representative David Eastman’s eligibility to serve as an elected official.
No matter how November’s election turns out, it won’t be known whether Representative Eastman will be returning as a legislator to Juneau in January. That’s because last week Judge Jack McKenna approved a motion that will result in the certification of the District 27 House election being delayed until the case resolving his eligibility for office is decided in December, and likely after an appeal regardless of that outcome.
The plaintiff in the suit is Randall Kowalke, a former member of the Mat-Su Borough Assembly. Kowalke is challenging Eastman’s eligibility based on the Alaska Constitution’s clause that bars anyone who is part of a group that advocates the overthrow of the government by violence or force from serving in elected office. Kowalke contends that Eastman’s membership in the Oath Keepers meets the criteria for disqualification.
The motion for preliminary injunction also included a request that Eastman be removed from the November ballot. Judge McKenna did not grant that request. While Eastman will be on the November ballot, the map of his district has changed. Most notably, his new district no longer includes the Northern Susitna Valley.
Kowalke says he is pleased the ruling.
“At the end of the day…I thought it was an elegant solution. It wasn’t a case of having to cut the baby in half, and it allowed the voters to make their call….”
Between now and December, when the case is to be held in full, Oath Keepers founder Steward Rhodes will stand trial in federal court on charges stemming from the Capitol riot on January 6th, 2021. Eastman was also in Washington, D.C. that day, but he has consistently asserted that he took no part in the Capitol riot and is not facing criminal charges.
In order to grant the injunction, Judge McKenna had to weigh multiple factors, including whether Kowalke had a “probability to prevail on the merits of the case.” Savannah Fletcher, an attorney with the Northern Justice Project who is representing Kowalke, says that standard means the current state of the evidence means her client has a better than fifty-fifty chance of winning in December.
“When we say ‘a clear probability of success on the merits,’ it’s something over fifty percent, but it’s not as high as ‘clear and convincing.’ So it’s just kind of in this gray area of it’s likelier than not, but we’re not at the whole trial yet where you have to find more definitively.”
One line of criticism that has emerged, and is promoted by Eastman, himself, is that the case and the disloyalty clause itself conflict with the First Amendment rights of candidates. Kowalke says a central issue in that regard is how much tolerance there is for groups whose leaders are accused of things like seditious conspiracy.
“You can go to extremes and say, ‘OK if it’s ISIS, do you want that candidate on the ballot?’ What’s the tolerance? And I’m hoping this case defines it. On the other hand, if we were to say ‘OK, it’s a Boy Scout membership, so they’re not qualified….’ So I think we could run this from the ridiculous to the sublime.”
For his part, Eastman has maintained that the suit is a purely political move. In a guest column for an online right-wing publication, he says that his political opponents are trying to make loyalty to the Constitution unconstitutional.
