A commentary piece appeared on Oct. 5, criticizing a judge for an initial preliminary decision in the David Eastman eligibility case. It was an unfair attack on a cautious judge who is doing a good job. The author’s message was particularly troubling, because it endorsed an extreme form of judicial activism. It suggested that a judge should refuse to enforce a law if people don’t like the law or consider enforcement of the law inconvenient. Judicial activism of this extreme form has no place in a society that depends upon the rule of law.
The Alaska Constitution states that a person who belongs to an organization which “advocates the overthrow by force or violence of the government of the United States” is not qualified to hold office. There is a dispute about whether Mr. Eastman is disqualified under this law. In our system, disputes like this one are resolved by courts. A court is required to enforce the Alaska Constitution unless a litigant persuasively demonstrates that some higher law prohibits its enforcement. At the initial stage of this Eastman case, it appeared probable to the judge that Eastman is disqualified by the state constitutional provision. However, the judge recognized that it would be premature to make a final decision on that question so early in the case.
The judge’s challenge was to find a way to protect the interests of Mr. Eastman and his opponents, as well as the public’s interest in orderly administration of elections, until the case can be decided after a trial to be held in December. If the judge were to take no action at all now, that would set the stage for a serious problem if Eastman came out on top in the election and that result were certified but later the judge decided that Eastman is disqualified. On the other hand, if the judge ordered now that Eastman may not stand for election, or that votes for him may not be counted in the provisional tabulation of election results, that could also present a serious problem if, after trial, the court were to decide that the constitutional provision does not apply to Eastman. The judge carefully analyzed the practical considerations presented, and he found the most conservative approach available. The court allowed Eastman to remain on the ballot but ordered deferral of the certification of the election result. In this way, the court avoided impairing Eastman’s right to defend his position in the December jury trial, before a final decision is made. This protects all sides until the court can make its final decision in the case. That is the least intrusive action the judge could have chosen to take at this preliminary stage of the case. That is the epitome of conservative judical action.
We are fortunate to have judges who are prudent and conservative, rather than politically doctrinaire and hasty in exercising judicial authority. Much of the credit for the high quality of the judges goes to Alaska’s judical selection procedure.
— Jim Reeves
Anchorage
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