Anchorage judge says Division of Elections must enforce disloyalty clause when determining candidate eligibility

The Alaska Division of Elections must review and enforce the state constitution’s disloyalty clause when determining a candidate’s eligibility for public office, an Anchorage judge ordered on Monday.

Wasilla Republican Rep. David Eastman has had his eligibility challenged to serve in the Legislature and appear on the general election ballot based on his membership in the Oath Keepers, a far-right militia group. An ongoing lawsuit filed by a former Mat-Su Assembly member seeks to resolve the eligibility question before he has the chance to be reelected in November.

The state’s disloyalty clause, which has not been tested in court, bars a person from holding public office who belongs to an organization that advocates for the overthrow of the U.S. or state government. The Oath Keepers’ leader and close affiliates have been charged in the Jan. 6 attack on the U.S. Capitol.

The Division of Elections argued that it didn’t have the capacity to investigate the disloyalty clause question, and that it can only look at simple public records confirming a candidate’s age and residency. Eastman was approved in June to run for reelection with Director Gail Fenumiai writing that the “preponderance of evidence supports his eligibility.”

Judge Jack McKenna noted that the division does not have subpoena power, but he said it is statutorily required to determine eligibility based on all of the Alaska Constitution’s provisions, including the disloyalty clause. He disagreed with an argument by state attorneys that making an eligibility determination on that clause risked the agency’s impartiality.

“In as much as any decision can be viewed as ‘partisan’, deciding to find a particular candidate is eligible is just as ‘partisan’ as deciding that a candidate is ineligible,” he said in his order, denying the state’s motion to dismiss its role in the case.

Patty Sullivan, a spokesperson for the Department of Law, said the state is taking “no position on the merits of the plaintiff’s claims against Rep. Eastman” as it continues to be involved in the case.

“The Division’s position is it followed its statutes and regulations in processing how a candidate gets on the ballot,” she added.

Eastman’s attorney Joe Miller, former Republican U.S. Senate candidate, appeared in court Friday, arguing that “a bureaucratic agency” should not be able to unilaterally deny a candidate from running for office. He said McKenna’s order dramatically expands the agency’s role “in determining who can and cannot run for office based upon inherently subjective and very political criteria.”

Savannah Fletcher, the attorney for plaintiff Randall Kowalke, said she was pleased with McKenna’s order.

Kowalke wants a preliminary injunction to try to strike Eastman’s name off the general election ballot. Oral arguments on that motion have been set for Sept. 20. The broader trial, challenging his eligibility to hold public office, has been scheduled to begin mid-December.