Judge hears arguments on preliminary injunction to remove Rep. Eastman from ballot

Superior Court Judge Jack McKenna heard arguments from the Division of Elections and legal counsel for Rep. David Eastman and Randall Kowalke.
Published: Sep. 20, 2022 at 5:41 PM AKDT
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ANCHORAGE, Alaska (KTUU) - Superior Court Judge Jack McKenna heard arguments from the Division of Elections and legal counsel for Rep. David Eastman and Randall Kowalke on a preliminary injunction filed by Kowalke’s lawyer — Savanah Fletcher of the Northern Justice Project — to remove Eastman from the November general election ballot.

Arguments by all three parties centered on the merits of the preliminary injunction filed to remove Eastman from the November ballot.

Eastman received a majority of votes in the Aug. 16 primary election for House District 27. The incumbent Republican legislator received 1,931 votes accounting for 52.06% of all votes cast in that district, nearly double the 974 votes that second-place finisher Stu Graham received, and more than twice what third-place finisher Brendan Carpenter received.

Before McKenna on Tuesday were arguments from all three sides concerning the motion to remove Eastman from the ballot. Fletcher led off the proceedings, stating that the injunction filed to remove Eastman from the November ballot — despite his majority of votes received during the primary — was a matter of public interest. Kowalke is a former member of the Matanuska-Susitna Borough Assembly and a former constituent of Eastman’s. However, Eastman’s lawyer Joe Miller stated that Kowalke no longer lives within the newly-created House District 27. Kowalke’s case centers on the alleged irreparable harm that would be created by the inclusion of Eastman on the November ballot as an ineligible candidate, according to Fletcher.

Fletcher argued three main points: that Eastman’s membership in the Oath Keepers was clearly established by the dues he had paid the organization in 2009 for a lifetime membership, that the Oath Keepers advocate for the violent overthrow of the United States government, and that the Division of Elections failed to enforce their disloyalty clause by certifying Eastman’s candidacy.

“There’s really no indication that this group ceases to exist and they continue to follow this history of violent encounters with the federal government,” Fletcher said. “You can attribute these actions to the group, not to a few outside members.”

Fletcher argued that by the bylaws established by the Oath Keepers themselves, members engaged in violence against the government — such as the Bundy standoff in Oregon — would need to be removed. Fletcher said that the proper way to avoid disenfranchisement of Alaska voters in House District 27 was to remove Eastman from the November ballot.

The state has been adamant that it does not need to enforce the disloyalty clause,” Fletcher said. “We’re now here in September with an ineligible candidate still on the ballot because they failed to do their duty.”

Eastman was first sworn into office in January 2017 and has had a scandal-marred term in office including censure by the house, removal from his own caucus, and as the only Alaska legislator to attend events at the Capitol on Jan. 6, 2020 — although he denies taking part in any rally, only admitting to having witnessed former President Donald Trump’s speech preceding the violent attacks.

Joe Miller, the former Republican nominee for U.S. Senate in 2010 who was defeated by a write-in campaign from Sen. Lisa Murkowski, argued that very little contained about the arguments made by Kowalke were legitimate. Miller took issue with the terminology used by Fletcher and said that none of the three affidavits offered provided direct evidence to the court. Miller also argued that allegations of Eastman’s support of white supremacy and anti-semitic causes were “outrageous.”

“This is not public interest litigation this is political advocacy,” Miller said. “These types of allegations that have been pulled out and now have been argued by counsel apparently in the latest pleading are frankly libelous and they’re malicious and frankly I’m surprised that they even got on the black and white before your honor. Outrageous, I think is the best way to describe them.”

Miller argued that the majority of the 38,000 members of the Oath Keepers were law-abiding citizens.

“The Oath Keepers have basically been drug through the media,” Miller said. “This is not a group of lawless people that are out there trying to overthrow the government.”

Miller also felt that Fletcher’s statement asserting that including Eastman on the November ballot would be a disenfranchisement of voters was “nothing further from the truth.” Miller noted that in order to become a member of the Oath Keepers, a person would have to have sworn a previous oath to the federal government.

“The fact is that just because there is some sort of opposition to the federal government, doesn’t make you an insurrectionist,“ Miller said. “You’re basically disenfranchising over half of that district.”

Miller said that although Eastman became a lifetime member of the Oath Keepers in 2009, he has never attended a meeting, a teleconference, or a rally held by the group. Miller then took issue with the timing of the lawsuit, arguing that the qualifications of a candidate are established at the time they take office.

“He (Trump) was president at the time. He was the head of the federal government and this idea that there was some sort of insurrection on Jan. 6 is legally defective,“ Miller said. “The people that were there on the 6th were there to preserve constitutional government.”

Miller continued that the burden of proof on the plaintiffs was to show that the Oath Keepers were currently involved in disloyalty or advocating for violence against the government.

“There is not a scintilla of evidence, even in the biased press,” Miller said.

Assistant Attorney General Lael Harrison argued for the Division of Elections that the timing of the request to remove Eastman from the ballot was improper and that alternate methods of challenging his candidacy existed without disrupting the entire ballot printing process — a process that Harrison argued could shake voters’ confidence in the division itself.

“Election security is of course a very deep topic of concern, I would say with the public on all sides at this time,” Harrison said. “Part of the reasons that we have these systems are security.”

Harrison stated that even if the assertions about Eastman, his membership in the Oath Keepers, and the violent intent of the organization were true, it would not be sufficient to keep him from running for office. Harrison said that the division reviewed records after receiving the complaint from Kowalke. Harrison said that the division was not arguing anything related to Eastman’s membership with the Oath Keepers, but focused on the role the division plays in the process and timeline of elections.

“We have not found based on that review sufficient reason sufficient evidence to remove Rep. Eastman from the ballot,” Harrison said. “The division’s concern is where we are in the process at this point.”

Harrison said that the greatest public interest was in orderly elections. Kowalke filed a complaint against Eastman’s candidacy and was provided a rejection letter for his complaint on June 20. Harrison said that it was over a month between when Kowalke received his letter and when his lawsuit was filed against Eastman and the Division of Elections. During that time, Harrison noted that the primary election was held.

“The process is not supposed to work where the court or the defendant tells the plaintiff what they want,” Harrison said. “The plaintiff sort of wants to have their cake and eat it too.”

McKenna said that he would work to have a decision on the preliminary injunction by Thursday, and was also working to determine a ruling on the motion to change the venue of the trial. The trial is currently set for December.