Alaska State Rep. David Eastman (R-Wasilla) cannot be disqualified from holding public office simply because he is a member of the nation Oath Keepers organization.
This was the final ruling, issued Dec. 23, by Anchorage Superior Court Judge Jack McKenna in a lawsuit which aimed to ban Eastman from the State Legislature.
Plaintiffs argued that Eastman should be banned from holding state office because the Alaska Constitution prohibits citizens from serving in public office if they are members of an organization that seeks to violently overthrow the government.
While the judge agreed with the plaintiffs assertion that Oath Keepers advocates for violent overthrow of the government, he said membership in the organization is protected under the First Amendment of the U.S. Constitution.
The judge then noted that the wording of Alaska’s disloyalty clause seems to run contrary to the First Amendment.
Eastman easily won reelection to a fourth consecutive term in the State House last month, but his victory has not yet been certified, after McKenna ordered the Division of Elections to delay certification until after the trial. In the Dec. 23 ruling, McKenna said the delay order remains in place until plaintiffs have a chance to appeal his decision.
Eastman joined Oath Keepers more than a decade ago, but has had minimal association with the groups outside of a few small donations.
The Oath Keepers has been at the center of national discussions since Jan. 6, 2021, after a small group of the 38,000-member organization took part in the events that unfolded at the U.S. Capitol.
Eastman attended the Jan. 6 rally, along with tens of thousands of other peaceful attendees, but he never marched on the Capitol, nor has he ever advocated for the overthrow of the government.
McKenna’s final ruling said mere membership in a group such as Oath Keepers cannot be grounds for barring someone from serving in public office, even if the Alaska Constitution indicates otherwise.
McKenna observed that the Alaska Constitution’s disloyalty clause, which is identical to Hawaii’s statehood act, was originally meant to address concerns about “alleged communist activity in Hawaii at the time.”
To bar a person from public office, merely on the basis of their “protected associational rights is that type of ‘guilt’ by association’ that the Supreme Court disapproved of,” McKenna wrote.
Alaska’s delegates thought such wording was necessary for Alaska to be admitted to the union, he added
“However, no substantive conversations or debate took place on the meaning of the provision,” McKenna wrote. He added that the provision has never been applied in Alaska case law, but that it must be interpreted in harmony with the U.S. Constitution.
The judge then noted that the wording of Alaska’s disloyalty clause seems to run contrary to the First Amendment.
“The First Amendment to the United States Constitution requires that a person’s otherwise lawful association with an organization may not be burdened by state action unless the person has a specific intent to further the illegal aims of that organization,” the judge wrote.
Additionally, he observed that Alaska’s Constitution must comply with the First Amendment which prohibits laws abridging the freedom of speech.
“Included within the right to free speech is the right to associate with others to engage in protected speech,” McKenna wrote.
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He then cited several landmark U.S. Supreme Court rulings, including Healy v. James (1972), which ruled that a student group could not be denied recognition at a state-supported college merely because of its affiliation with a national organization associated with disruptive and violent campus activity.
“The Court went on to hold that in order for state law to restrict First Amendment rights based upon a person’s association with a group, there must be a ‘knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims.’”
To bar a person from public office, merely on the basis of their “protected associational rights is that type of ‘guilt’ by association’ that the Supreme Court disapproved of,” McKenna wrote.
He concluded his ruling by noting that while Eastman was a member of the Oath Keepers, he “did not possess a specific intent to further the Oath Keeper’s words or actions aimed at overthrowing the United States government.”
McKenna delayed the implementation of his ruling, pending a possible appeal. This means the Division of Elections cannot certify Eastman’s Nov. 8 election victory until at least Jan. 4, 2023, when the court plans to address whether an appeal has been filed.
