Amicus Curiae Brief — Laurel D. Libby, et al., Applicants v. Ryan M. Fecteau, Speaker of the Maine House of Representatives, et al.
Supreme Court briefMay 8, 2025
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No. 24A1051
In the Supreme Court of the United States
LAUREL LIBBY, ET AL.,
Applicants,
v.
RYAN M. FECTEAU, IN HIS OFFICIAL CAPACITY AS SPEAKER OF
THE MAINE HOUSE OF REPRESENTATIVES, ET AL.,
Respondents.
ON APPLICATION FOR INJUNCTIVE RELIEF PENDING APPEAL
TO THE U.S. COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF OF AMICUS CURIAE STATE OF
WEST VIRGINIA AND 14 OTHER STATES
IN SUPPORT OF APPLICANTS
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305-0220
mwilliams@wvago.gov
(304) 558-2021
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
HOLLY J. WILSON
Principal Deputy Solicitor General
Counsel for Amicus Curiae State of West Virginia
[additional counsel listed after signature page]
TABLE OF CONTENTS
Introduction And Interests Of Amicus Curiae ...........................................................................1
Summary Of The Argument .........................................................................................................3
Argument ........................................................................................................................................4
I.
Legislative Immunity Does Not Apply Here Because The Voting Bar
Is Not A Protected Legislative Act .................................................................................4
II.
Legislative Immunity Does Not Apply Here Because Of The Voting
Bar’s Extraordinary Character .....................................................................................13
Conclusion.....................................................................................................................................17
i
TABLE OF AUTHORITIES
Page(s)
Cases
Barenblatt v. United States,
360 U.S. 109 (1959) .................................................................................................................16
Bechard v. Rappold,
287 F.3d 827 (9th Cir. 2002) ....................................................................................................8
Bd. of Estimate v. Morris,
489 U.S. 688 (1989) .................................................................................................................14
Bogan v. Scott-Harris,
523 U.S. 44 (1998) .................................................................................................................5, 7
Bond v. Floyd,
385 U.S. 116 (1966) .................................................................................................................15
Boquist v. Courtney,
32 F.4th 764 (9th Cir. 2022) ....................................................................................................7
Brouwer v. Bronkema,
141 N.W.2d 98 (Mich. 1966) ..................................................................................................14
Bryan v. City of Madison,
213 F.3d 267 (5th Cir. 2000) ..................................................................................................13
Burt v. Speaker of the House of Representatives,
243 A.3d 609 (N.H. 2020) .......................................................................................................16
Church v. Missouri,
913 F.3d 736 (8th Cir. 2019) ....................................................................................................5
Clinton v. Jones,
520 U.S. 681 (1997) .................................................................................................................12
Cmty. Success Initiative v. Moore,
886 S.E.2d 16 (N.C. 2023) .....................................................................................................14
Cushing v. Packard,
30 F.4th 27 (1st Cir. 2022) ............................................................................................... 11, 13
ii
Davids v. Akers,
549 F.2d 120 (9th Cir. 1977) ..................................................................................................14
Des Moines Register v. Dwyer,
542 N.W.2d 491 (Iowa 1996) .................................................................................................16
Doe v. McMillan,
412 U.S. 306 (1973) ...................................................................................................................4
Dombrowski v. Eastland,
387 U.S. 82 (1967) ............................................................................................................. 4, 5, 6
Duncan v. McCall,
139 U.S. 449 (1891) ...................................................................................................................1
EEOC v. Wash. Suburban Sanitary Comm’n,
631 F.3d 174 (4th Cir. 2011) .............................................................................................. 8, 11
Ex parte Virginia,
100 U.S. 339 (1879) .................................................................................................................13
Forrester v. White,
484 U.S. 219 (1988) .................................................................................................................11
Gamrat v. McBroom,
822 F. App’x 331 (6th Cir. 2020) .............................................................................................9
Garrison v. Louisiana,
379 U.S. 64 (1964) ...................................................................................................................15
Gewertz v. Jackman,
467 F. Supp. 1047 (D.N.J. 1979) ...........................................................................................15
Gravel v. United States,
408 U.S. 606 (1972) ........................................................................................................... 5, 6, 7
Hous. Cmty. Coll. Sys. v. Wilson,
595 U.S. 468 (2022) ...................................................................................................................7
In re Chapman,
166 U.S. 661 (1897) ...............................................................................................................8, 9
iii
In re Sealed Case,
80 F.4th 355 (D.C. Cir. 2023) ..................................................................................................6
Kent v. Ohio House of Representatives Democratic Caucus,
33 F.4th 359 (6th Cir. 2022) ................................................................................................4, 5
Kerr v. Hickenlooper,
824 F.3d 1207 (10th Cir. 2016) ..............................................................................................13
Kilbourn v. Thompson,
103 U.S. 168 (1880) ......................................................................................................... 2, 5, 13
Kucinich v. Forbes,
432 F. Supp. 1101 (N.D. Ohio 1977) ............................................................................... 15, 16
Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency,
440 U.S. 391 (1979) ............................................................................................................. 4, 13
Larsen v. Senate,
152 F.3d 240 (3d Cir. 1998) ...................................................................................................12
League of Women Voters of Honolulu v. State,
499 P.3d 382 (Haw. 2021) ......................................................................................................16
Lucas v. Forty-Fourth Gen. Assembly of the State of Colo.,
377 U.S. 713 (1964) ..................................................................................................................1
Michel v. Anderson,
14 F.3d 623 (D.C. Cir. 1994) ....................................................................................................9
Miller v. Hull,
878 F.2d 523 (1st Cir. 1989) ..................................................................................................14
Nev. Comm’n on Ethics v. Carrigan,
564 U.S. 117 (2011) ............................................................................................................. 6, 15
Powell v. McCormack,
395 U.S. 486 (1969) ......................................................................................................... 4, 6, 10
Rash-Aldridge v. Ramirez,
96 F.3d 117 (5th Cir. 1996) ......................................................................................................9
Reynolds v. Sims,
377 U.S. 533 (1964) ......................................................................................................... 6, 7, 14
iv
Robinson Township v. Commonwealth,
84 A.3d 1054 (Pa. 2014) ..........................................................................................................13
Schwartz v. New York,
No. 603475/2024, 2025 WL 779524 (N.Y. Sup. Ct. Mar. 5, 2025) ......................................17
Selene v. Legislature of Idaho,
514 F. Supp. 3d 1243 (D. Idaho 2021) ....................................................................................8
Smith v. Lomax,
45 F.3d 402 (11th Cir. 1995) ....................................................................................................6
State Emps. Bargaining Agent Coal. v. Rowland,
494 F.3d 71 (2d Cir. 2007) .......................................................................................................5
Supreme Ct. of Va. v. Consumers Union of the U.S., Inc.,
446 U.S. 719 (1980) ........................................................................................................ 2, 4, 12
Tenney v. Brandhove,
341 U.S. 367 (1951) ...................................................................................................................2
Trump v. United States,
603 U.S. 593 (2024) .................................................................................................................12
United States v. Brewster,
408 U.S. 501 (1972) ......................................................................................................... 4, 5, 11
Whitener v. McWatters
112 F.3d 740 (4th Cir. 1997) ....................................................................................................8
United States v. Ballin,
144 U.S. 1 (1892).....................................................................................................................16
Constitutional Provisions
U.S. CONST. art. I, § 6, cl. 1 ..........................................................................................................4
Other Authorities
Arkansas Lawmaker Censured for Swearing at Colleague,
AP NEWS (Feb. 9, 2021, 7:28 PM), https://tinyurl.com/fdtnj9a9 ......................................10
v
BLACK’S LAW DICTIONARY (12th ed. 2024) ................................................................................9
Christina Caron & Liam Stack,
Maryland House of Delegates Censures Mary Ann Lisanti for Using
Racist Slur,
N.Y. TIMES (Feb. 28, 2019), https://tinyurl.com/bdcsryce................................................10
Gerald T. McLaughlin,
Congressional Self-Discipline: The Power to Expel, to Exclude, and to
Punish,
41 FORDHAM L. REV. 43 (1972) ............................................................................................14
Hughes Upholds Socialists’ Rights, N.Y. TIMES, Jan. 10, 1920 ...............................................2
James Brooks,
Alaska House Censures Rep. Eastman for Comments About the
Economic ‘Benefit’ of Child Abuse Deaths,
ALASKA BEACON (Feb. 22, 2023, 3:51 PM), https://tinyurl.com/3r2d8fdt .......................10
Kiara Alfonseca,
Rep. Zooey Zephyr, Transgender Legislator Censured in Montana,
Wins Reelection,
ABC NEWS (Nov. 6, 2024, 10:27 AM), https://tinyurl.com/yc6z7cv8 ................................10
Luther S. Cushing,
REPORTS OF CONTROVERTED ELECTIONS IN THE HOUSE OF
REPRESENTATIVES OF THE COMMONWEALTH OF MASSACHUSETTS (1853) ....................17
Micah Drew & Keila Szpaller,
Montana Republican Party Censures Nine GOP Senators; No Longer
Considers Them Republicans,
DAILY MONTANAN (Apr. 4, 2025, 7:43 PM), https://tinyurl.com/5frvczrv .......................10
Owen M. Fiss,
Why the State?,
100 HARV. L. REV. 781 (1987) .................................................................................................6
Shane Coughlin,
Speaking of the Speech or Debate Clause: Revising State Legislative
Immunity,
98 NOTRE DAME L. REV. REFLECTION 50 (2022).................................................................8
vi
Steven N. Sherr,
Freedom and Federalism: The First Amendment’s Protection of
Legislative Voting,
101 YALE L.J. 233 (1991) .................................................................................................12
vii
INTRODUCTION AND INTERESTS OF AMICUS CURIAE
Perhaps a little too often, applicants come to this Court warning that some decision
being challenged is poised to undermine (or even end) our republican form of government.
This time, though, the shoe fits.
The Speaker of the Maine House of Representatives stripped Representative Laurel
Libby of her power to vote on behalf of her constituents. By all accounts, he did so because
of what Representative Libby said publicly about a matter of debate. Representative Libby
cannot vote on behalf of her district or speak on the floor of the House until she recants her
views to the Speaker’s satisfaction. Until then, her voice—her district’s voice—is silenced,
as the Clerk will ignore her votes at the Speaker’s behest. “[T]he distinguishing feature”
of the republican form of government “is the right of the people to choose their own officers
for governmental administration, and pass their own laws in virtue of the legislative power
reposed in representative bodies.” Duncan v. McCall, 139 U.S. 449, 461 (1891). Right now,
the people of Auburn and Minot have no such rights.
One might’ve thought that this situation would be quickly corrected below. But the
district court was unwilling to look past legislative immunity and intervene, principally
because “the sanction ultimately reflected the will of the majority.” App.32. It also took
solace in the fact that Representative Libby could continue to enjoy collateral privileges
like “legislative staff,” “offices,” and “meal allowances.” App.32. The First Circuit then
endorsed that reasoning in a summary order. App.1. Yet the right to equal representation
“can hardly be infringed simply because a majority of the people choose that it be.” Lucas
v. Forty-Fourth Gen. Assembly of the State of Colo., 377 U.S. 713, 736-37 (1964). And that
1
right becomes a farce if legislators can demote one of their duly elected colleagues to little
more than an informal observer without fear of any judicial response.
To be sure, legislative immunity is an important protection “to insure that the
legislative function may be performed independently without fear of outside interference.”
Supreme Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 731 (1980). Courts
should not lightly disregard it. But the doctrine also cannot become a shield for actions that
directly attack the legislative function. Rare as those instances may be, courts must not be
shy when legislators move beyond ordinary politics and begin dismantling elements as
fundamental as a legislator’s right to vote. It would be a perverse result indeed if a doctrine
meant to protect “[f]reedom of speech and action in the legislature” was instead used to
erase Representative Libby’s ability to speak and act in the Legislature. Tenney v.
Brandhove, 341 U.S. 367, 372 (1951).
So the Court should grant the injunction pending appeal, and it need not even tread
any new ground to do so. Although the lower courts were fixed on legislative immunity,
they were doubly mistaken in thinking it applied. For one, barring Representative Libby
from voting was not a legislative act to which legislative immunity applies. For another,
even if it were a legislative act, the House’s voting bar against Representative Libby is of
such “extraordinary character” that immunity should not apply. Kilbourn v. Thompson,
103 U.S. 168, 204 (1880).
With immunity put aside, it becomes plain enough that
Representative Libby is entitled to immediate relief, as she has already explained well.
Appl. 24-38.
The House’s actions directly implicate both the First and Fourteenth
2
Amendments.
And not even the lower courts seemed to question the harm that
Representative Libby and her constituents will suffer from these damaging actions.
“It is absolutely opposed to the fundamental principles of our Government,” Charles
Evans Hughes once said, “for a majority to undertake to deny representation to a minority
through its representatives elected by ballots lawfully cast.” Hughes Upholds Socialists’
Rights, N.Y. TIMES, Jan. 10, 1920, at A1. The statement remains just as true a century
later. The Court should grant the application and confirm as much.
SUMMARY OF THE ARGUMENT
Although both the district court and the circuit court relied on legislative immunity
to avoid addressing the merits of Representative Libby’s claims, that doctrine cannot apply
here.
I.
Respondents can invoke legislative immunity only as to legislative acts. And
not everything done by a legislator is a legislative act. Here, preventing Representative
Libby from voting was not legislative. It was not integral to passing legislation. It also was
not an essential part of other aspects of the House’s jurisdiction. While a legislative body
can discipline its members, it cannot go so far as to suspend a member and deprive him or
her of voting power. What’s more, the voting bar is more like an administrative action than
a legislative one. And immunizing that action also would serve none of the doctrine’s
ordinary purposes.
II.
Even if one could say this suspension was a legislative act, it is of such
extraordinary character that it cannot be protected. The act strikes at a legislator’s most
important function: voting.
Representative Libby’s suspension disenfranchises all of
3
District 90’s voters. And it does so as retribution for the very sort of speech that a legislator
must offer—speech on one of the important issues of the day.
ARGUMENT
I.
LEGISLATIVE IMMUNITY DOES NOT APPLY HERE BECAUSE THE
VOTING BAR IS NOT A PROTECTED LEGISLATIVE ACT.
For at least two independent reasons, the lower courts erred in thinking that the
House’s actions implicated legislative immunity. First, the Clerk is not performing a
legislative act when he refuses to count Representative Libby’s votes. And second, the
House cannot invoke immunity because it would be inconsistent with the doctrine’s purpose.
A.
Legislative immunity is a common-law privilege that finds its “roots” in the
Constitution’s Speech or Debate Clause. Dombrowski v. Eastland, 387 U.S. 82, 85 (1967);
see also U.S. CONST. art. I, § 6, cl. 1. It applies to “shield” legislators and their functionaries
from suit, United States v. Brewster, 408 U.S. 501, 517 (1972), so that “legislative function[s]
may be performed independently without fear of outside interference,” Consumers Union,
446 U.S. at 731. The immunity ultimately exists to “protect the public good.” Lake Country
Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 405 (1979) (cleaned up).
But the limits of legislative immunity are “finite,” Doe v. McMillan, 412 U.S. 306,
317 (1973), for it “does not . . . bar all judicial review of legislative acts,” Powell v.
McCormack, 395 U.S. 486, 503 (1969).
Although the privilege cements legislators’
“independence,” it stops short of transforming legislators into “super-citizens” above the
law. Brewster, 408 U.S. at 507-08, 516. Legislative immunity covers only what is “necessary
to preserve the integrity of the legislative process”—and no more. Id. at 517; see also, e.g.,
Kent v. Ohio House of Representatives Democratic Caucus, 33 F.4th 359, 365 (6th Cir. 2022)
4
(Sutton, J.) (explaining how the doctrine “immunizes lawmakers from lawsuits that would
indirectly impair their freedom to engage in tasks that are indispensable ingredients of
lawmaking” (cleaned up)).
To that end, protected “[l]egislative acts are not all-encompassing.” Gravel v.
United States, 408 U.S. 606, 625 (1972). Legislative acts are those “generally done in a
session of the House by one of its members in relation to the business before it.” Kilbourn
v. Thompson, 103 U.S. 168, 204 (1880). But they do not include all conduct “casually or
incidentally related to legislative affairs.” Brewster, 408 U.S. at 528. Rather, immunity
turns on the “nature of the act.” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). It attaches
only where the act is an “integral part of the deliberative and communicative processes”
related to official proceedings, “passage or rejection of proposed legislation,” or “other
matters” constitutionally within the legislatures’ “jurisdiction.” Gravel, 408 U.S. at 625.
And courts have stressed that protected acts must be legislative in both form (in that they
were integral steps) and substance (in that they “bore all the hallmarks of tradition
legislation, including whether they reflected discretionary, policymaking decisions”). State
Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 89 (2d Cir. 2007) (cleaned up);
accord Church v. Missouri, 913 F.3d 736, 751 (8th Cir. 2019).
Employees and functionaries are not insulated from this standard. Even if an
immune legislator directs them to act, surrogates enjoy protection only if their actions are
separately legislative in nature, too. See Gravel, 408 U.S. at 620-21. In Kilbourn, for
example, the Court refused to extend immunity to a sergeant-at-arms who complied with a
legislative order and executed an illegal arrest. See 103 U.S. at 205; see also Eastland, 387
5
U.S. at 84-85 (shielding, in part, subcommittee counsel who gathered records for hearing);
Powell, 395 U.S. at 504-06 (1969) (denying immunity for House employees who executed
the improper exclusion of a representative-elect).
B.
Taking these principles together, neither the Speaker nor the Clerk is
performing a legislative act when blocking Representative Libby from casting votes on
pending legislation. The district court reasoned otherwise by noting that the Speaker acted
in compliance with a rule after a vote on the House floor. App.19. But the fact that a
“legislator may vote on an issue . . . does not necessarily determine that he or she was acting
in a legislative capacity.” Smith v. Lomax, 45 F.3d 402, 406 (11th Cir. 1995) (cleaned up).
Likewise, legislative immunity “does not turn on whether an action is in some general sense
‘official.’” In re Sealed Case, 80 F.4th 355, 364-65 (D.C. Cir. 2023) (Rao, J.). A proper
analysis calls for a closer look.
To begin, Representative Libby’s exile from the House is not “integral” to the
“deliberative” or “communicative processes” of legislating. Gravel, 408 U.S. at 625. Short
of expulsion (where the member’s vote can then be replaced), invalidating a member’s vote
is not, and cannot be, “essential” to any democratic legislative process, which depends on
fair and equal representation. Id.; Reynolds v. Sims, 377 U.S. 533, 560-61 (1964) (describing
“the fundamental principle of representative government in this country” as “one of equal
representation for equal numbers of people”). A lawmaker’s vote is not his own in our
representative system of government; votes belong to the people. Nev. Comm’n on Ethics
v. Carrigan, 564 U.S. 117, 126 (2011). Denying a representative’s vote thus disenfranchises
citizens and threatens the legitimacy of the legislative process at both the state and federal
6
levels. Annulling a member’s vote is not an integral step in the legislative process but an
act in service of undermining it. And “policymaking” is nowhere to be found in that decision,
either; the suspension instead deprives the policymaking process of views from
Representative Libby and her constituents, weakening the “[r]ich public debate” that is an
“essential precondition for the exercise of . . . [the] sovereign prerogative.” Owen M. Fiss,
Why the State?, 100 HARV. L. REV. 781, 786 (1987).
Next, the Clerk’s refusal to count Representative Libby’s votes is not “integral” to
the “deliberative” or “communicative processes” of any “other matter” within the
legislature’s jurisdiction. Gravel, 408 U.S. at 625. Although all state legislatures have the
power to censure or otherwise punish members, they are constitutionally barred from
stripping voting rights as part of that process. See Reynolds, 377 U.S. at 564-65 (explaining
that the Constitution guarantees equal representation); Hous. Cmty. Coll. Sys. v. Wilson,
595 U.S. 468, 475-76 (2022) (detailing censure authority). Thus, as Representative Libby
notes, “[t]he prevailing view is that members of the legislature do not have the power to
suspend members and therefore deprive them of the right to vote.” Boquist v. Courtney,
32 F.4th 764, 783 (9th Cir. 2022). The district court therefore erred in concluding that
suspension fell “within the legitimate legislative sphere.” App.19 (cleaned up).
The refusal to count Representative Libby’s votes also lacks the traditional
“hallmarks” of a legislative act. Bogan, 523 U.S. at 55. Recording votes is nondiscretionary
and does not involve “policymaking decision[s].” Id. Meanwhile, the refusal will not have
“prospective implications that reach well beyond the particular occupant of the office.” Id.
at 56. And the refusal does not implicate some generally applicable policy; the House has
7
instead singled out Representative Libby and District 90 constituents. Courts often find
that such a laser focus is compelling evidence that an act is not legislative. See, e.g., EEOC
v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 184 (4th Cir. 2011) (Wilkinson, J.)
(“Legislative acts, the ones for which the immunity and privilege are granted, typically
involve the adoption of prospective, legislative-type rules, rules that establish a general
policy affecting the larger population.” (cleaned up)); Bechard v. Rappold, 287 F.3d 827, 829
(9th Cir. 2002) (holding certain actions not legislatively immune because they “involved ad
hoc decisionmaking rather than the formulation of policy and . . . affected only [one person]
rather than affecting a large number of people”); see also Shane Coughlin, Speaking of the
Speech or Debate Clause: Revising State Legislative Immunity, 98 NOTRE DAME L. REV.
REFLECTION 50, 69 (2022) (“[I]n the context of state legislators claiming an ouster due to
policies adopted by the majority, courts should assess whether a rule is neutral and
generally applicable.”). Further, while passing the censure resolution, which “place[d]
administration” in the “hands” of the Speaker and the Clerk, “may have been a legislative
act,” how the Speaker and the Clerk “in fact administrate is not.” Selene v. Legislature of
Idaho, 514 F. Supp. 3d 1243, 1253 (D. Idaho 2021).
Even courts that take a broad view of legislative immunity have refused to recognize
the right to suspend a member as a “legislative act.” Whitener v. McWatters, for instance,
found that a board of supervisors took a legislative act when it censured a board member
and took away his committee assignments. 112 F.3d 740, 744 (4th Cir. 1997). At the same
time, the court distinguished between internal disciplinary actions like censure and
reassignment (legislative) and any “power to exclude those elected” (not). Id.; see also In
8
re Chapman, 166 U.S. 661, 668 (1897) (recognizing Congress’s “inherent power of selfprotection” but pointedly omitting suspension of voting rights from the list of those powers);
Gamrat v. McBroom, 822 F. App’x 331, 334 (6th Cir. 2020) (finding that an expulsion was a
legislative activity principally because expulsion was expressly provided for in the Michigan
Constitution). The Maine House’s action against Representative Libby falls firmly in the
latter camp; although the district court emphasized that Representative Libby had formally
been permitted to retain her seat, App.27-28, the practical effect was the same as expelling
her (except that she can’t now be replaced). See Expulsion, BLACK’S LAW DICTIONARY
(12th ed. 2024) (“An ejectment or banishment, either through depriving someone of a
benefit or by forcibly evicting the person.” (emphasis added)); see also Rash-Aldridge v.
Ramirez, 96 F.3d 117, 119 (5th Cir. 1996) (distinguishing an effort to “remove [a city council
member] from her seat on the council []or take away any privileges of that office”). Serving
on committees and the like does not grant Representative Libby the privileges of
membership. Michel v. Anderson, 14 F.3d 623, 632 (D.C. Cir. 1994).
More recent history confirms the same. No State other than Maine has shown an
interest in a power grab of this kind. Every other State understands that the constitutional
guardrails guaranteeing voting privileges to representatives are absolute.
They also
appreciate that those guardrails reinforce, rather undermine, the due functioning of the
legislature. So not a single state legislature in recent years has taken away voting rights
from a representative while punishing him or her. See, e.g., Micah Drew & Keila Szpaller,
Montana Republican Party Censures Nine GOP Senators; No Longer Considers Them
Republicans, DAILY MONTANAN (Apr. 4, 2025, 7:43 PM), https://tinyurl.com/5frvczrv (no
9
loss of voting privileges for nine censured Montanan senators who collaborated with
Democrat colleagues); Kiara Alfonseca, Rep. Zooey Zephyr, Transgender Legislator
Censured in Montana, Wins Reelection, ABC NEWS (Nov. 6, 2024, 10:27 AM),
https://tinyurl.com/yc6z7cv8 (bar from house floor but no loss of voting privileges for
Montana state representative who voiced opposition to medical treatment for transgender
youth); James Brooks, Alaska House Censures Rep. Eastman for Comments About the
Economic ‘Benefit’ of Child Abuse Deaths, ALASKA BEACON (Feb. 22, 2023, 3:51 PM),
https://tinyurl.com/3r2d8fdt (no loss of voting privileges for Alaskan representative who
was censured three times); Arkansas Lawmaker Censured for Swearing at Colleague, AP
NEWS (Feb. 9, 2021, 7:28 PM), https://tinyurl.com/fdtnj9a9 (no loss of voting privileges for
Arkansas senator who used profanity toward a colleague); Christina Caron & Liam Stack,
Maryland House of Delegates Censures Mary Ann Lisanti for Using Racist Slur, N.Y.
TIMES (Feb. 28, 2019), https://tinyurl.com/bdcsryce (agreement to give up leadership role
and participate in sensitivity training for Maryland representative who used racial slur).
Altogether, both a functional and historical perspective show that Representative
Libby’s censure is a bridge too far. Powell confirms as much. There, the Court refused to
extend legislative immunity to House employees who carried out the illegal exclusion of
representative-elect Adam Powell. Powell, 395 U.S. at 505-06. The Clerk of the House who
threatened to refuse to work for Powell, the Sergeant-at-Arms who refused to pay Powell’s
salary, and the Doorkeeper who threatened to deny Powell admission to the House chamber
had not engaged in legislative acts, despite being directed by one. Id. at 493. This case is
no different. The Maine House has effectively closed its doors to Representative Libby,
10
even if she can sit in a few committee meetings or keep the key to her office. As in Powell,
Representative Libby cannot speak on any bills, and she cannot vote. And as in Powell, the
Clerk’s actions are simple executions of the body’s command—Representative Libby’s
censure.
So applying any ordinary understanding, Respondents’ actions are not legislative
acts justifying use of legislative immunity.
C.
Beyond these tests, legislative immunity also depends on purpose and
context. See Forrester v. White, 484 U.S. 219, 224 (1988) (noting that the Court must not
“extend the scope of the protection further than its purposes require”); Cushing v. Packard,
30 F.4th 27, 52 (1st Cir. 2022) (finding that legislative immunity “must be sensitive to
context”). Those concepts weigh against labelling the Maine legislators’ acts “legislative,”
too.
Legislative immunity is supposed to “shield [legislators] from political wars of
attrition in which their opponents try to defeat them through litigation rather than at the
ballot box.” Wash. Suburban Sanitary Comm’n, 631 F.3d at 181. But if immunity reaches
the conduct here, then legislators will gain a new, dangerous, and “outside-the-box” weapon
in their political arsenal. They may use voting rights as collateral for compliance. They
could rescind their political opponents’ voting power. And they could do so with impunity,
safe in the knowledge that they could not be held judicially accountable. These results
would pervert, rather than protect, the “integrity of the legislative process.” Brewster, 408
U.S. at 507, 517; see also Cushing, 30 F.4th at 57 (Thompson, J., dissenting) (“If legislative
immunity is meant to enable and encourage a representative of the public[] to discharge his
11
public[] trust with firmness and success, then it seems contradictory that the immunity
would protect some legislators’ decision to effectively preclude other legislators from
discharging their duties.” (cleaned up)).
When applied to state legislators, legislative immunity has also sometimes been
described as an important protection of federalism. See, e.g., Steven N. Sherr, Freedom
and Federalism: The First Amendment’s Protection of Legislative Voting, 101 YALE L.J.
233, 238 (1991). And certainly, the States here are great fans of federalism. Yet a simple
insistence that a legislator must be allowed to vote is no real threat to federalism. A State
would retain all the same sovereign powers both before and after such a declaration is made.
Lastly, courts have recognized that legislative immunity serves a pragmatic purpose
of limiting distractions from legislators’ work. Consumers Union, 446 U.S. at 733. But
again, the straightforward question of disenfranchisement here—and the equally
straightforward remedy of reseating Representative Libby in full—will not require
complicated, distracting proceedings or invite serial, abusive litigation. Cf. Trump v.
United States, 603 U.S. 593, 640 (2024) (imagining how a “broad [criminal] statute” might
be wielded against a president while evaluating the president’s immunity); Clinton v. Jones,
520 U.S. 681, 702 (1997) (considering “the relatively narrow compass of the issues raised in
this particular case” when deciding whether immunity from civil suit should apply to
prevent undue interference with presidential functions). As this very application reflects,
the matter can be resolved on an undisputed record with no legislator involvement and no
reason for delay. See, e.g., Larsen v. Senate, 152 F.3d 240, 253 (3d Cir. 1998) (distinguishing
12
an impermissible remedy from an order that “merely direct[s] the seating of a properly
elected legislator”).
The “public good” is best served by allowing a legislator to work. Lake Country
Ests., 440 U.S. at 405. The Court should therefore grant an injunction pending appeal so
that Representative Libby can do just that.
II.
LEGISLATIVE IMMUNITY DOES NOT APPLY HERE BECAUSE OF THE
VOTING BAR’S EXTRAORDINARY CHARACTER.
The Court has noted before that legislative immunity may not shield even legislative
acts when they prove to be of “extraordinary character”—that is, they constitute “utter
perversion[s]” of the legislative powers. Kilbourn, 103 U.S. at 204-05. This exception may
apply when legislative acts are “so flagrantly violative of fundamental constitutional
protections that traditional notions of legislative immunity would not deter judicial
intervention.” Cushing, 30 F.4th at 50 (cleaned up). Put differently, “[i]t may be that at
some point, when a legislature acts in a wholly irresponsible and undemocratic manner, its
immunity for ‘legislative’ acts dissipates.” Bryan v. City of Madison, 213 F.3d 267, 274 (5th
Cir. 2000); cf. Ex parte Virginia, 100 U.S. 339, 348 (1879) (“We do not perceive how holding
an office under a State, and claiming to act for the State, can relieve the holder from
obligation to obey the Constitution of the United States.”).
The acts taken against Representative Libby are indeed a flagrant violation of our
constitutional right to equal representation. Representative Libby suffered a “personal
injury” when she was “barred from exercising [her] right to vote on bills.” Kerr v.
Hickenlooper, 824 F.3d 1207, 1216 (10th Cir. 2016); see also Robinson Township v.
Commonwealth, 84 A.3d 1054, 1055 (Pa. 2014) (explaining that legislators have a “right to
13
vote on legislation”). But more importantly, her constituents were directly injured, too.
“The Equal Protection Clause demands no less than substantially equal state legislative
representation for all citizens, of all places.” Reynolds, 377 U.S. at 568. The “right to equal
representation in a State legislature and the right to vote for State legislators . . . [a]re
regarded as of primary importance in a democratic society.” Brouwer v. Bronkema, 141
N.W.2d 98, 107 (Mich. 1966).
And both rights are plainly “shortchanged” when a
“neighboring district, of equal population” is granted more votes in the legislature. Bd. of
Estimate v. Morris, 489 U.S. 688, 698 (1989). After all, “the people exercise [their]
sovereign power through their elected representatives in the [legislature].” Cmty. Success
Initiative v. Moore, 886 S.E.2d 16, 31 (N.C. 2023).
Despite what the district court said, leaving Representative Libby nominally in her
seat isn’t good enough, either. “When a legislator cannot appear[,] the people whom the
legislator represents lose their voice in debate and vote.” State v. Beno, 341 N.W.2d 668,
676 (Wis. 1984) (emphasis added). It is the “right to vote [that] freely enables legislators to
consummate their duty to their constituents.” Miller v. Hull, 878 F.2d 523, 533 (1st Cir.
1989) (cleaned up). Without a vote, “all of the people of [the representative’s] district . . .
who voted for him, . . . who voted against him, . . . who chose not to vote, [and] . . . who were
not eligible to vote” are silenced. Davids v. Akers, 549 F.2d 120, 124 (9th Cir. 1977); see
also Gerald T. McLaughlin, Congressional Self-Discipline: The Power to Expel, to Exclude,
and to Punish, 41 FORDHAM L. REV. 43, 60 (1972) (“During the period of suspension, a
member’s constituents are deprived of the services of their representative without the
power to send someone else in his place. Suspension then robs a segment of the population
14
of its right to . . . representation.”). It is through the vote that the legislator acts as “trustee”
for his constituents. Carrigan, 564 U.S. at 126.
It only adds actionable insult to injury that the House stripped Representative
Libby of her vote because of political speech directed at constituents and made outside the
House. Representative Libby spoke out about biological boys competing in girls’ sports—
an issue that even the district court acknowledged is being “fiercely debat[ed]” “around the
country.” App.3. Indeed, at least three petitions for certiorari touching on that issue are
before this Court right now. See Petition for Certiorari, Little v. Hecox, No. 24-38 (S. Ct.
July 11, 2024); Petition for Certiorari, West Virginia v. B.P.J., No. 24-43 (S. Ct. July 11,
2024); Petition for Certiorari, Peterson v. Jane Doe, No. 24-449 (S. Ct. Oct. 17, 2024). And
Maine is no different—the issue has prompted both proposed legislation and a lawsuit from
the U.S. Department of Justice. See Complaint, United States v. Me. Dep’t of Educ., No.
1:25-cv-00173-JCN (D. Me. Apr. 16, 2025), ECF No. 1.
So it was expected that
Representative Libby would comment on the issue.
“[S]peech concerning public affairs is more than self-expression; it is the essence of
self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). For all sorts of
reasons, then, “[l]egislators have an obligation to take positions on controversial political
questions.” Bond v. Floyd, 385 U.S. 116, 136 (1966). Given all that, it’s unsurprising that
“federal courts have not hesitated to enjoin” legislative bodies when “elected officials have
been excluded or suspended from [those] bodies for the exercise of their right of free
speech.” Gewertz v. Jackman, 467 F. Supp. 1047, 1057 (D.N.J. 1979). These courts have
recognized that “[i]n our system of government only the electorate in [the legislator’s] ward
15
are permitted to judge him and punish him for his expression of ideas and opinions.”
Kucinich v. Forbes, 432 F. Supp. 1101, 1117 (N.D. Ohio 1977). The district court should
have recognized the same here.
The district court instead seemed to believe that these egregious acts could still not
trigger the extraordinary-character exception because they were effected through
legislative rules and a vote. App.4, 18-19, 23. That’s an odd position, as the States
themselves have long recognized that “[a] legislature may not, even in the exercise of its
‘absolute’ internal rulemaking authority, violate constitutional limitations.” Burt v. Speaker
of the House of Representatives, 243 A.3d 609, 614 (N.H. 2020); accord League of Women
Voters of Honolulu v. State, 499 P.3d 382, 392–93 (Haw. 2021); Des Moines Register v.
Dwyer, 542 N.W.2d 491, 496 (Iowa 1996); cf. United States v. Ballin, 144 U.S. 1, 5 (1892)
(“The constitution empowers each house to determine its rules of proceedings. It may not
by its rules ignore constitutional restraints or violate fundamental rights.”). Worse still,
the court appeared to reject out of hand the idea that constitutional violations can ever
overcome legislative immunity. App.24-25. It never weighed the flagrancy of the violation
here, apparently because it thought that fact irrelevant. But that’s a dangerous path
indeed. If the district court is right on that point, then Representative Libby’s parade of
unconstitutional horribles will be on the march in due time. Appl. 4. “History should teach
us then, that in times of high emotional excitement” “attempts will always be made to drive
. . . out” “minority parties and groups.” Barenblatt v. United States, 360 U.S. 109, 151 (1959)
(Black, J., dissenting). The decision below invites those attempts to start now.
16
The district court fretted about being “the first case to clear the high bar for
applying [the extraordinary character] exception.” App.26. But the prospect that this case
could be the first isn’t evidence that the exception is illusory—it’s a testament to the
atypicality of what the House did here. The principle that members can’t be unilaterally
stripped of voting rights has been recognized through all of our nation’s existence. About
250 years ago, early Americans declared that it was “altogether repugnant to the principles
of the constitution” to “proceed to suspend a member duly returned” and “deprive” the
member of “essential rights.”
ELECTIONS
IN THE
HOUSE
LUTHER S. CUSHING, REPORTS OF CONTROVERTED
OF
REPRESENTATIVES
OF THE
COMMONWEALTH
OF
MASSACHUSETTS 18 (1853) (describing 1784 election). And about two months ago, a modern
American judge found that a similar effort to impose an “indefinite suspension of voting
rights” was a “severe” and unjustifiable “burden on voting rights.” Schwartz v. New York,
No. 603475/2024, 2025 WL 779524, at *5 (N.Y. Sup. Ct. Mar. 5, 2025). The district court
should have joined the centuries-long chorus and held the same here. Because it failed to
do so, it’s now up to this Court to remedy this ugly situation.
CONCLUSION
The Court should grant the application for an injunction pending appeal.
17
Respectfully submitted.
JOHN B. MCCUSKEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25301
(304) 558-2021
mwilliams@wvago.gov
MICHAEL R. WILLIAMS
Solicitor General
Counsel of Record
HOLLY J. WILSON
Principal Deputy Solicitor General
Counsel for Amicus Curiae State of West Virginia
18
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
State of Alabama
LIZ MURRILL
Attorney General
State of Louisiana
TIM GRIFFIN
Attorney General
State of Arkansas
AUSTIN KNUDSEN
Attorney General
State of Montana
JAMES UTHMEIER
Attorney General
State of Florida
MICHAEL T. HILGERS
Attorney General
State of Nebraska
CHRISTOPHER CARR
Attorney General
State of Georgia
DAVE YOST
Attorney General
State of Ohio
RAÚL LABRADOR
Attorney General
State of Idaho
GENTNER DRUMMOND
Attorney General
State of Oklahoma
BRENNA BIRD
Attorney General
State of Iowa
ALAN WILSON
Attorney General
State of South Carolina
KRIS KOBACH
Attorney General
State of Kansas
JASON MIYARES
Attorney General
Commonwealth of Virginia
19
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.