Wasilla Republican state Rep. David Eastman can continue to run for reelection, but his membership in a far-right group could still result in his disqualification, just not until after the election.
That’s according to a decision by an Anchorage Superior Court judge in a lawsuit over whether Eastman’s membership in the Oath Keepers organization violates the state constitution’s “disloyalty clause.”
The judge, Jack McKenna, ruled Thursday that Eastman is likely ineligible to hold office, but that Eastman’s name can remain on ballots for the Nov. 8 election. The catch? Should he win, Eastman could still be removed from office, pending the results of a trial set to be held in December.
The Alaska Beacon has been following these developments with the lawsuit, brought by former Matanuska-Susitna Borough Assemblyman Randall Kowalke.
Alaska Beacon reporter James Brooks says the lawsuit has two main hurdles to overcome.
The following transcript has been lightly edited for clarity.
James Brooks: What this lawsuit claims is that Eastman’s membership in the Oath Keepers far-right group linked to the Jan. 6, 2021 insurrection is actually advocating the overthrow of the U.S. government. And so the lawsuit has two hurdles to meet. First, they have to prove that Eastman is a member, which he has said he is, and he hasn’t said that he’s left the group. And number two, they have to prove that the group is advocating the overthrow of the U.S. government. And that’s a bit trickier.
Casey Grove: Gotcha. So, this lawsuit hasn’t actually gone to trial yet, right? But there have been some interesting developments. Tell me about those.
JB: Right. As part of the lawsuit, Kowalke asked a judge to issue a preliminary injunction that would take Eastman’s name off the ballot. A preliminary injunction is what happens when you need action or want action before the result of a trial. And one of the stages of that is that you have to prove that you are likely to succeed at trial. Keep in mind that several members of the Oath Keepers, including the group’s leader, have been accused of various crimes associated with the Jan. 6 insurrection. Those allegations are what Kowalke’s attorneys have pointed at.
And this week, we learned that the judge said he does believe that Kowalke would succeed at trial. But there would be a harm to voters in the district if the trial concludes that Eastman is eligible. So as a compromise, effectively a compromise, what he’s done is he said Eastman can remain on the ballot, but the Division of Elections can’t certify the election, can’t declare the election over, until after a trial in December that determines whether or not Eastman actually violated the disloyalty clause. If Eastman wins in November, and the trial determines that he is in violation and is thus no longer eligible to serve, then Eastman is eliminated from the election. And under ranked-choice voting, people who voted for him, their votes would go to their second choice, and then the division would recalculate and see who wins. If Eastman loses in November, the case is moot, because he would no longer serve as a legislator. And if he wins both in November and wins the trial, Kowalke is likely to appeal that, but Eastman would likely be sworn in in January.
CG: What did David Eastman have to say about this?
JB: Eastman’s attorney is Joe Miller, the man who ran against Lisa Murkowski back in 2010 and sparked a write in campaign that eventually saw Murkowski win. And Miller didn’t return my call seeking comment. But Eastman wrote online that he believes the case against him is an attack on the Constitution. And he’s asking for donations of money in order to keep his legal defense going.
CG: That’s all very interesting, and it seems kind of complicated. So this trial, if it happens in the future, could provide some answers here, but we don’t know that yet.
JB: This is a case that doesn’t just have implications for Alaska. Across the country, there have been arguments over whether the Oath Keepers are advocating the overthrow of the U.S. government, to what extent they played a role in the Jan. 6 insurrection. And I think a lot of people outside the state will be paying close attention to this December trial, because that’s one of the key questions that the judge will have to answer: Are the Oathkeepers an insurrectionist group, or are they not?
Eastman has said and sworn under oath that he did not participate in the Jan. 6 insurrection. He did attend protests before it in Washington, D.C., but has said he didn’t approach the Capitol and didn’t enter the Capitol or commit any illegal actions during that. But the case doesn’t require him to have done any illegal actions during the insurrection, because of the wording of the disloyalty clause. He just has to be a member of a group that advocates the overthrow of the U.S. government. And some experts that I’ve talked to have said that this case raises a lot of First Amendment concerns. Does disqualifying somebody just because of their membership in a group violate the First Amendment? That’s a question that hasn’t come up in this case yet. But if it is appealed, as attorneys have told me they expect, it seems likely that will come up eventually.