Rep. Eastman's ballot eligibility to be decided by Thursday, Anchorage judge says

Sep. 21—David Eastman, Joe Miller, court, courtroom

An Anchorage judge said he will make a decision by Thursday morning whether Wasilla Republican Rep. David Eastman is eligible to appear on the general election ballot based on his life membership of far-right militia group the Oath Keepers, but an appeal to the Alaska Supreme Court is expected regardless of his decision.

Former Mat-Su Assembly member Randall Kowalke, who filed the lawsuit, has argued Eastman's membership in the group runs afoul of the Alaska Constitution's disloyalty clause, which bars a person from holding public office in Alaska who advocates for the overthrow by force of the U.S. or state government. The leader of the Oath Keepers, and several affiliates, have been charged or indicted for their alleged conduct in the Jan. 6 attack on the U.S. Capitol.

In an affidavit, Eastman said he has sworn an oath multiple times to defend the U.S. Constitution. He paid a life membership fee for the Oath Keepers in 2009, but he said he has never attended a meeting and he can't find evidence online that the militia group is active.

Eastman said he traveled to Washington, D.C., in January of 2021 to visit Alaska's congressional delegation and to hear former President Donald Trump speak on Jan. 6, but he denied being part of any violence or entering the U.S. Capitol.

Kowalke wanted Anchorage Judge Jack McKenna to issue a preliminary injunction to have Eastman's name struck off the ballot, but the Alaska Division of Elections Director Gail Fenumiai said in an affidavit that ballots have already been printed and the first set will start being mailed Friday to 2,200 overseas and uniformed voters. She also said there are security protocols preventing the state's voting tabulation machines from being reprogrammed to remove Eastman's name from the ballot in time for November's election.

Kowalke's attorney, Savannah Fletcher, proposed alternative options for McKenna if he does decide that Eastman is ineligible to stand for reelection, including that voters be told by mail that if he is reelected, he wouldn't be able to hold public office. Fenumiai's affidavit said he could also be excluded from the ranked choice voting process, meaning votes for Eastman would go to the voters' next-highest choices.

Eastman's attorney Joe Miller, former Republican U.S. Senate candidate, said in Tuesday's oral arguments that it was "legally defective" to say the Oath Keepers were participating in an insurrection because they believed they were there to defend a legitimately elected president. Had election fraud in 2020 been "incontrovertibly" found, they would have been considered "patriots," he said.

Miller said that tens of thousands of rank-and-file Oath Keepers' are law-abiding citizens and that this legal challenge to Eastman's eligibility is a "political hit" against people who support candidates like Trump.

"This is not public interest litigation," he said. "This is political advocacy."

During Fletcher's oral arguments, McKenna asked her how much someone can attribute the actions of some Oath Keepers to the group as a whole.

Fletcher said Stewart Rhodes, the Oath Keepers' leader and founder, has been charged with conspiring with militia members to violently overturn the 2020 election results on Jan. 6. It wasn't just a few outside members, but "the core" of the group, which was calling for an insurrection, she said, adding that Eastman has not renounced his Oath Keepers' membership, which shows his continuing connection to the group.

The Division of Elections unsuccessfully sought to have its role in the case dismissed, arguing that it doesn't have the capacity to examine a candidate's eligibility based on the constitution's disloyalty clause. McKenna said earlier in the month that it has the duty to enforce all of the state constitution's provisions, but the division has filed a motion for him to reconsider that decision.

The broader case challenging whether Eastman is eligible to hold public office is set to go to trial in mid-December.