Judge partially grants preliminary injunction in case against Rep. Eastman

Superior Court Judge Jack McKenna orders Division of Elections to delay certification of House District 27 election results
 Rep. David Eastman at a recent committee hearing. (KTUU)
Rep. David Eastman at a recent committee hearing. (KTUU) (KTUU)
Published: Sep. 23, 2022 at 1:51 PM AKDT
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ANCHORAGE, Alaska (KTUU) - Superior Court Judge Jack McKenna issued a decision Thursday that will keep a state representative with ties to the Oath Keepers on the November ballot.

Randall Kowalke’s legal challenge of Wasilla Rep. David Eastman’s eligibility for elected office was partially granted, approving Kowalke’s request for a preliminary injunction and ordering the Division of Elections to delay certification of House District 27 election results until the case has been settled.

McKenna granted Kowalke’s request for a preliminary injunction — but denied his request to remove Eastman from the general election ballot — instead ordering the division to delay certification of the election. McKenna wrote in his decision that the main purpose of preliminary injunctions is to maintain the status quo.

“This situation is unprecedented and the court must attempt to balance the competing rights and interests implicated by this litigation. Among the options available, the relief prescribed in this Order most appropriately maintains the status quo, protects the rights of the parties, and allows for voters in House District 27 to select their representative regardless of the specific outcome of this litigation,” McKenna wrote.

In McKenna’s decision under the question of “Whether an Injunction Should be Granted,” he wrote that “In order to prevail on his claim that Representative Eastman is barred from public office by the disqualification for disloyalty clause, Kowalke must show that Representative Eastman ‘aids or belongs’ to the Oath Keepers. He must also present evidence that the Oath Keepers are a “party or organization or association which advocates ... the overthrow by force or violence of the government or the United States or of the State.”

McKenna wrote that “Based upon the information currently available to this court, Kowalke has shown a clear probability of success on the merits of this element,” in the matter of “Aiding or Belonging to the Oath Keepers.”

Eastman was sworn into the Alaska House of Representatives in 2017 and has represented District 10 since then. Due to the redistricting process which was recently completed, Eastman is now seeking reelection to represent the same district under a new number — House District 27. In the primary election for House District 27, Eastman received more votes than both of his challengers combined.

Kowalke’s initial complaint against Eastman was filed on July 29. The former Matanuska-Susitna Borough Assemblyman and Eastman’s constituent argued that Eastman’s membership in the Oath Keepers violated the disloyalty clause of the Alaska Constitution, rendering him ineligible for the office he currently holds and is seeking reelection for.

Kowalke then filed a preliminary injunction on Aug. 29, which sought to have the division remove Eastman’s name from the November general election ballots in House District 27 entirely. On Sept. 20, representation for Kowalke, Eastman, and the Division of Elections all argued before Judge McKenna concerning the requested preliminary injunction. McKenna then issued an order the next day — Sept. 21 — seeking further clarification from the division about the logistics of ranked-choice voting if a candidate’s name were to be withdrawn, and asked about the feasibility of delaying the certification of election results for only House District 27.

“The court requests additional information from the parties on whether it would be feasible for the Division to delay certifying the results from House District 27 until after trial in this case without impacting the certification of the other results of the general election,” McKenna wrote in the order. “If that is possible, then the court also requests information regarding the requirements for when House District 27′s results would ultimately need to be certified.”

On Thursday, Kowalke’s lawyer Savannah Fletcher, Eastman’s lawyer Joe Miller, and Assistant Attorney General Lael Harrison representing the division, all filed memorandums in response to McKenna’s order.

“The answer to whether the division could practically accomplish this is squarely within the control of the State,” Miller wrote. “However, even if it were possible, Representative Eastman contends that an order delaying certification of only his race, statewide, is not feasible as it would likely affect voter perceptions and improperly influence House District 27′s ongoing election.”

Fletcher’s memo asserted that elections only had to be certified five days prior to when the elected official was supposed to be sworn in — making Jan. 12 the latest date the election could be certified in order to have House District 27′s representative sworn in on Jan. 17 and prevent any period where the district would lack representation in the House.

Harrison’s memo stated that if the division were to withdraw a candidate’s name from the ballot, it could be done either prior to or after the certification of the election if ordered to re-tabulate and recertify results by the court.

“The Division can only delay ranked-choice tabulation for Rep. Eastman’s race; it cannot delay counting first-choice votes, which would be counted and reported as “unofficial results,” Harrison wrote. “Typically, certification happens immediately after those processes are complete, but there is no practical barrier to delaying it.”

The jury trial is not set to begin until Dec. 12. It is likely that whatever the outcome, the case will still be appealed to the Alaska Supreme Court.