Denying Rep. Laurel Libby the right to speak and vote in the Maine Legislature is a violation of her First Amendment rights, her lawyer said in federal court Friday.
But a citizen’s right to vote in a yearly election is not the same as a representative’s right to vote in the House of Representatives, the state argued.
Lawyers from the Maine Office of the Attorney General and for Libby, R-Auburn, presented their cases before federal Judge Melissa DuBose following Libby’s censure by the House of Representatives in February.
DuBose will decide if a preliminary injunction should be granted, which would allow Libby to vote without the clerk denying that right.
House Speaker Ryan Fecteau censured Libby, barring her from speaking or voting on the floor. She can still make motions, introduce bills and cast votes in committees. The censure came in response to Libby’s social media post that named and pictured a transgender high school athlete, which kicked off a number of investigations by the Trump administration into Maine’s transgender athlete policy.
Libby sued Fecteau to get her vote back.
By denying Libby’s right to vote in the House, the 9,000 people in her district are disenfranchised, her attorney Patrick Strawbridge said. He said this denies Libby her First and 14th Amendment rights.
“That is a textbook denial of both Representative Libby’s First Amendment rights and her constituents’ rights to representation,” he said.
If the House voted to expel Libby, there would be a special election where Libby could run again for her seat. If she is elected again, she cannot be expelled for the same issue, Strawbridge said.
Continuing to censure her through a majority vote instead of the two thirds vote to expel her is an “incredible expansion” of the House’s power, Strawbridge said.
The entire body of the House of Representatives can vote to overturn Fecteau’s decision, Assistant Attorney General Kimberly Patwardhan said. Libby’s censure is not the act of individuals, but is the view of the House, Patwardhan said.
Libby was censured for conduct that the House viewed as “endangering a child,” Patwardhan said.
A representative’s First Amendment rights do not extend to voting on particular pieces of legislation, Patwardhan said. Libby not being allowed to vote in the House is different from a citizen being denied their right to vote in a yearly election, Assistant Attorney General Jonathan Bolton said.
The censure still infringes on the rights of Libby’s constituents, Strawbridge said.
The case is in U.S. District Court of Maine in Bangor but is being heard by DuBose, a Rhode Island judge, after all Maine federal judges recused themselves because the athlete named in Libby’s posts has a parent who works for the federal court system.
The judge will issue her opinion in the coming weeks.
