Yesterday the law firm of Consovoy McCarthy filed an emergency application with the Supreme Court on behalf of Maine Representative Laurel Libby and six constituents from her district. The application challenges the Maine House speaker Ryan Fecteau’s decision to strip Rep. Libby of her vote in retaliation for public comments that she made regarding the hotly contested transgender sports controversy, and requests an injunction pending appeal while the case continues to be litigated in the lower courts.
Last week, I wrote in detail about the issues at the heart of Rep. Libby’s case. In February, she publicly criticized Maine’s policy allowing biological males identifying as transgender to compete in girls’ sports. Rep. Libby posted on Facebook: “This is outrageous, and unfair to the many female athletes who work every day to succeed in their respective sports. . . . I will continue to vigorously oppose all efforts to allow male athletes to compete in female athletic competitions and to demand that President Trump’s Executive Order be enforced in Maine to ensure fairness for all female athletes.”
In retaliation for her social media post and comments about women’s sports, the Democrat-controlled House passed a party-line resolution censuring Libby. The resolution required her to “accept full responsibility for the incident and publicly apologize to the House and to the people of the State of Maine”—a requirement completely flying in the face of the First Amendment.
When Libby refused to apologize, House Speaker Ryan Fecteau barred Libby from speaking from the floor—or voting—depriving her of her vote and her constituents of their guarantee of equal representation under the 14th Amendment. While it’s certainly not unusual for legislatures to censure their members, it is quite unprecedented to deny a legislator her right to vote; only three other Maine legislators have been censured in the state’s 200-year history—and none has ever been stripped of her vote before. The same is true across the nation.
After the censure, Rep. Libby sued Speaker Fecteau in federal court in Maine. The district court denied Libby’s motion for a preliminary injunction, holding that legislative immunity precluded judicial review of the Clerk’s refusal to count Libby’s votes. Over the weekend, the First Circuit refused to stay the district court’s order.
In their emergency application filed yesterday, Libby and her constituents ask the Supreme Court to preserve the status quo—here, equal representation of her Maine constituents—and to issue an injunction pending appeal permitting Libby to vote in the Maine House while her case is litigated in the lower courts—a process that could take many months. As the application argues, “‘There can be no do-over and no redress’ for Rep. Libby’s uncounted votes, and District 90’s lack of representation, during the rest of her term.” The application states that, since her censure, the House has voted on hundreds of bills without Libby’s participation:
[Rep. Libby’s] thousands of constituents in Maine House District 90 are now without a voice or vote for every bill coming to the House floor for the rest of her elected term, which runs through 2026. They are disenfranchised. Libby and her district had no vote on the State’s $11 billion budget, had no vote on a proposed constitutional amendment, and will have no vote on hundreds more proposed laws including—most ironically—whether Maine should change its current policy of requiring girls to compete alongside transgender athletes.
Rep. Libby and her constituents have asked the Court to grant them relief before May 6, 2025, when the Maine House convenes its next floor session.
The Consovoy application is directed to Justice Jackson, who is the circuit justice for the First Circuit. Given the visibility of Rep. Libby’s censure since it occurred, and the harm that she and her constituents are suffering in light of her inability to vote, I expect Justice Jackson to refer the application to the full court for consideration. I am also hopeful that the Court will grant the modest relief Rep. Libby requests, and restore her right to vote while the litigation regarding the censure continues.