Over the past four installments, we have examined the legal battle waged by Rep. Laurel Libby in response to her unprecedented censure by the Maine House of Representatives. We have discussed the political context, the constitutional claims she has raised, the rights of her constituents, and the specific relief sought from the courts. Now, in this final episode, we turn to the final question: What is the likelihood that this lawsuit succeeds?

Recap: The Key Issues at Stake

To understand the lawsuit’s chances, let’s briefly summarize the critical aspects covered in previous posts:

  1. The Political and Historical Context (Part 1)
    • Rep. Libby was censured for making a Facebook post about a transgender athlete. Unlike censures in most states or legislative bodies, this one resulted in an indefinite loss of her ability to speak or vote on the House floor until she apologized for her actions.
    • Rep. Libby has so far refused to apologize, and the House has refused to de-censure her, leading to an unprecedented extended deprivation of her ability to speak or vote on the House floor.
  2. The Legal Claims Under State and Federal Law (Part 2)
    • The lawsuit asserts violations of Rep. Libby’s First Amendment rights, arguing that the censure is an unlawful restriction on political speech.
    • Additionally, the due process claims contend that she was effectively expelled from the Legislature without the constitutionally necessary two-thirds vote required for removal.
    • The case also involves a compelled speech argument, given that Libby must issue a forced apology to regain her legislative privileges. Since certain members of the public are alleging that her conduct amounted to either harassment or privacy violations of the trans athlete, this could potentially also violate her Fifth Amendment right against forced self incrimination. 
  3. The Rights of the Constituents (Part 3)
    • The lawsuit argues that her censure disenfranchised her constituents, denying them their right to representation in the Maine House.
    • This raises substantive Due Process and Equal Protection Clause concerns, given that voters in her district are being uniquely deprived of a legislator who can act on their behalf. Courts have previously taken cases of deprived representation or unfair representation very seriously.
  4. The Relief Sought (Part 4)
    • Libby seeks injunctive relief to immediately restore her legislative privileges, specifically to vote and speak on the floor.
    • She also requests declaratory relief to establish that the censure was unlawful, as well as compensation for legal fees.

Judicial Bias: Will the Judge’s Personal Political Leanings Matter?

One point of concern for Rep. Libby’s supporters is potential judicial bias. The judge assigned to the case has expressed personal support for LGBT rights and is openly a member of the LGBT community. So, could this impact the ruling?

On one hand, courts are bound by legal precedent, and judges must adhere to constitutional principles rather than personal views. However, given the political nature of the dispute, personal bias—whether real or perceived—could play a role. If the judge frames the issue as one of anti-LGBT bias rather than free speech, equal protection, and due process, Libby’s case may face significant hurdles. That said, the fact that in this case the male Speaker of the House is silencing a female legislator could also work in Libby’s favor, creating a competing political narrative.

Additionally, we should not overemphasize the role of politics in how courts rule. Let’s not forget that the Biden administration’s trans-inclusive Title IX interpretation was at one point given potential backing by the conservative majority Supreme Court. In Bostock v. Clayton County (2020) and Altitude Express, Inc. v. Zarda (2020), the court ruled 6-3 that Title VII, a similar sex-based employment discrimination law, also protected against discrimination based on sexual orientation and gender identity. These opinions were authored by Republican appointee Justice Neil Gorsuch, who was joined twice by Justice Roberts and the liberal justices. If conservative justices can make pro-trans rulings, it stands to reason that liberal justices can make rulings the other way.

The Impact of Removal from Maine Federal Courts

The decision to file the case in federal court rather than Maine’s state courts was a strategic one. Given that Speaker Fecteau and the House majority are Democrats, a lawsuit filed in an in-Maine court could have been subject to local political pressures. The case moving to a Rhode Island federal court has positioned Rep. Libby’s legal team within a system that may be more sympathetic to First Amendment, Equal Protection, and Due Process claims. This move increases the chances of a favorable ruling, as federal courts have historically been more willing to check legislative overreach.

Timeliness and Standing: Is the Injury Repairable?

For a lawsuit to succeed, plaintiffs must demonstrate an evident and reparable injury, this is part of the legal requirement of standing. In this case, the injury is immediate—Rep. Libby has been stripped of her constitutionally protected legislative powers, and her constituents are effectively unrepresented. This is not a speculative harm but an ongoing constitutional violation.

Additionally, courts are more likely to intervene when an injury is ongoing rather than a past wrong that cannot be undone. Since the censure is effectively indefinite unless Rep. Libby apologizes, the case presents a strong argument for standing and timeliness. The Legislature is likely to end the current session early and call a special session to complete further business, and she should confirm whether Speaker Fecteau expects her censure to remain. Otherwise, he might claim that her censure ended with the First Regular Session of the Legislature concluding, potentially protecting him from future legal action.

Appeals and Mootness: Will the Case Be Heard in Time?

One potential issue is whether the lawsuit will be resolved before it becomes moot. If the Maine House reverses its decision or if the Legislative session ends, the case could lose its urgency. However, given that Libby has refused to apologize and the leadership has not shown signs of relenting, the issue remains active. If her case is not decided before the current session ends, or it takes all the way until the end of next year’s session, the injury may become more hypothetical/irreparable. After all, if the legislature has concluded, then they can’t un-censure her. This could potentially weaken her case if the hearings are delayed .

However, even if the Legislature ultimately lifts the censure, the request for declaratory relief means the courts could still weigh in on the legality of the House’s actions to prevent future abuses. If the Legislature chooses to abuse this in the future to permanently silence unpopular members of the House by a simple majority, the rights of individual members of the Legislature would be seriously undermined. 

Conclusion: Will Rep. Libby Prevail?

While predicting the outcome of any lawsuit is difficult, Rep. Libby’s case has strong constitutional claims, particularly regarding free speech and due process. The unprecedented nature of her censure, combined with the apparent viewpoint discrimination (it was likely her outspoken stance on trans issues that lead to the ban, not how she presented them), gives her a compelling argument.

However, the political climate, potential judicial leanings, and procedural hurdles could complicate the case. The best-case scenario for Libby would be a favorable ruling in federal court that grants an injunction restoring her legislative privileges and a declaratory judgment affirming her constitutional rights. Even if she loses at the district level, appeals could push the case into higher courts where it may receive a more neutral hearing. The majority conservative Supreme Court, if willing to hear the case, might also give her case a more friendly review than the lower level courts.

One thing is certain: This case is not just about one legislator—it is about how far state legislatures can go to discipline its members and whether that discipline overrides the constitutional rights of the individual legislator, or the rights of their constituents’ to  engage in the political process. However it unfolds, the outcome will have lasting implications for Maine and large parts of the country.