A Superior Court judge recently upheld Rep. David Eastman’s qualifications for office, which had been challenged under Alaska’s disloyalty clause. However, the factual findings made by Judge Jack McKenna actually dictated the opposite outcome — a ruling that Rep. Eastman is ineligible to serve.
Specifically, Judge McKenna found two critical facts: First, that Rep. Eastman belonged to the Oath Keepers; and second, that the Oath Keepers as an organization “has, through words and conduct, taken concrete action to attempt to overthrow by violence the United States government.”
Our disloyalty clause states: “No person who advocates, or who aids or belongs to any party or organization or association which advocates, the overthrow by force or violence of the government of the United States or of the State shall be qualified to hold any public office of trust or profit under this constitution.”
All this clause requires is that the person “belongs” to an organization that advocates for overthrowing the U.S. government. Judge McKenna so found, and Eastman accordingly should have been disqualified. However, the judge grafted on an additional requirement found nowhere in the constitution’s text — that Rep. Eastman somehow specifically state that he desires that the Oath Keepers succeed in their goal. This was an error. There is no specific intent language in the constitution, and this was not a case regarding potential criminal liability. This case concerned only the qualifications to serve in public office in Alaska — a privilege granted under our constitution, but not an absolute right. Because the facts at trial showed Rep. Eastman belongs to an insurrectionist organization, he is ineligible to serve.
Furthermore, there is ample legal precedent to conclude that the First Amendment of the U.S. Constitution does not block enforcement of our disloyalty clause:
Section Three of the 14th Amendment, which was enacted after the First Amendment, thereby limiting it, prohibits individuals who previously swore an oath to the constitution and then engaged in insurrection from serving in federal, state or local office. Added after the Civil War, it is at its core a democracy preservation provision — people who try to overthrow the government cannot be permitted to run it.
This past September, a group actually won the first case in more than 100 years relying on this section, and removed a New Mexico public official from office for engaging in insurrection and was the first time a court found that the Jan. 6, 2021 attack on the U.S. Capitol was an insurrection. This decision identified several categories of conduct relating to Jan. 6 which warrant disqualification under the 14th Amendment, including incitement to violence, physical presence within the mob beyond police lines on the U.S. Capitol ground, and mob mobilization, logistical and organizational support. The court cited law enforcement testimony in its conclusion that anyone trespassing on Capitol grounds, whether violent or not, contributed to the insurrection because they contributed to law enforcement being overwhelmed.
This decision sparked a national conversation about what we require of our elected leaders — namely, that they support our democracy.
When the Alaska Legislature convenes this week for their new legislative session, its members have the opportunity to raise an objection to Mr. Eastman’s constitutional qualifications for office, as laid out in this report.
The Alaska Legislature could lead by excluding or expelling Eastman from the House for violating Section 3 of the 14th Amendment. The Legislature can create precedent similar to that in New Mexico by stating, unequivocally, that insurrectionists cannot be permitted to run the government they are trying to destroy. Such a motion to exclude would be well grounded in the law and has been endorsed by the Jan. 6 Select Committee’s recent report, which endorses the use of the 14th Amendment to exclude insurrectionists from office — see page 690. It would also fit squarely within the confines of the precedent from New Mexico.
Excluding Mr. Eastman for violating the 14th Amendment is a different legal avenue than the recently concluded trial. That trial was over whether he violated the disloyalty clause. In dismissing the case the judge incorrectly concluded that the disloyalty clause conflicts with the 1st Amendment. The right to associational activity such as belonging the Oath Keepers, is not shielded by the First Amendment because the 14th Amendment modifies that right for those who run for public office. This view has been endorsed by leading First Amendment scholars such as Erwin Chemerinsky and Larry Tribe, whose views can be found in an amicus brief which they submitted in the New Mexico case.
A motion to exclude is raised before members are sworn in and take the oath of office. Such a motion can be decided by a mere majority of legislators. Conversely, once the Legislature convenes, a motion to expel — requiring a two-thirds majority vote — could be considered.
Regardless of the vehicle, the Legislature still has time to do the right thing by standing up for Alaskans and our constitution by preventing an insurrectionist from serving in their body.
Scott Kendall is an attorney in private practice. He formerly served as chief of staff to Gov. Bill Walker.
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