On December 23, an Alaska superior court judge issued findings of fact and conclusions of law rejecting a challenge to the eligibility of state representative David Eastman under the Alaska state constitution’s “disloyalty clause.”

Eastman has been a member of the Oath Keepers, an extremist group whose leaders were recently found guilty of seditious conspiracy for their involvement in the January 6, 2021 insurrection. On that day, Eastman attended the pre-attack demonstration at the Ellipse, but then left and did not go to the Capitol.

Randall Kowalke, an Alaska citizen, challenged Eastman’s eligibility for office under Article XII, section 4 of the Alaska state constitution: “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.”

The challenge did not involve Section 3 of the Fourteenth Amendment, and Free Speech For People was not involved.

After a multi-day trial, in which experts on extremism and Oath Keeper leaders (among others) testified, the judge ruled:

The court holds that Alaska’s Disqualification for Disloyalty clause must be interpreted in harmony with the First Amendment to the United States Constitution. Article XIl, § 4 therefore disqualifies from public office any person who knowingly affiliates themselves with an organization that, through concrete words or actions calls for the violent overthrow of the United States Government or the State of Alaska. Additionally, the person must have a specific intent to further the unprotected words or conduct of that organization.

In this case, the court finds that the Oath Keepers are an organization that has, through words and conduct, taken concrete action to attempt to overthrow by violence the United States government. The court further finds that Rep. Eastman is a member of that organization, but that he does not and did not possess a specific intent to further the Oath Keeper’s words or actions aimed at overthrowing the United States government. The court therefore finds that he is not disqualified from holding public office by Article XII, § 4.

This illustrates several ways in how section 3 of the Fourteenth Amendment differs from the Alaska state constitution’s provision. 

First, unlike the Alaska state provision, section 3 does not prohibit officeholding based on membership in an organization, but rather when the individual “shall have engaged in insurrection or rebellion” against the United States. While membership or other involvement with an extremist organization, such as the Oath Keepers, could be relevant evidence, the Worthy-Powell standard defines “engage[ment]” in insurrection as voluntarily aiding the insurrection through personal service or contributions.

Second, unlike the Alaska state provision, section 3 is a coequal provision of the U.S. Constitution to the First Amendment. While “merely disloyal sentiments or expressions” do not qualify as engaging in insurrection, other forms of speech (e.g., “marching orders or instructions to capture a particular objective, or to disrupt or obstruct a particular government proceeding”) certainly can do so. With respect to an individual who has joined a group, the “specific intent” approach adopted by the Alaska judge does not apply to section 3. Rather, under section 3, a person has “engaged” in insurrection if they were “leagued” with insurrectionists, “either by acting in concert with others knowing that the group intended to achieve its purpose in part by violence, force, or intimidation by numbers, or by performing an ‘overt act’ knowing that act would ‘aid or support’ the insurrection.” (emphases added)

In sum, while it is distressing that members of an extremist organization such as the Oath Keepers occupy elected office, this decision under the Alaska state constitution to a legislator who (apparently) joined the organization without “a specific intent to further the Oath Keepers’ words or actions aimed at overthrowing the United States government” does not impact the applicability of section 3 of the Fourteenth Amendment to those individuals who meet the standard for having “engaged in” the January 6 insurrection.

Learn more about Free Speech For People’s work to hold insurrectionists accountable under section 3 of the Fourteenth Amendment.



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