# Roudebush v. Hartke
## Dissenting Opinion

    Douglas
Supreme Court of the United States
405 U.S. 15
Roudebush v. Hartke et al.
Appeal from the United States District Court for the Southern District of Indiana
No. 70-66 Argued: December 13, 1971 --- Decided: February 23, 1972
Incumbent Senator Hartke was certified by the Indiana Secretary of State to the Governor as the winner of the close 1970 Indiana senatorial election. Candidate Roudebush filed a timely recount petition in state court. The state court denied Hartke's motion to dismiss on the grounds of conflict with the Indiana and Federal Constitutions, and granted the petition for a recount. Hartke sought an injunction against the recount in United States District Court, invoking jurisdiction under 28 U.S.C. § 1343 (3) and claiming that the recount was barred by Art. I, § 5, of the Federal Constitution, delegating to the Senate the power to judge the elections, returns, and qualifications of its members. The three-judge District Court issued the requested injunction. After appeals were filed here, the Senate seated Hartke "without prejudice to the outcome of an appeal pending in the Supreme Court... and without prejudice to the outcome of any recount that the Supreme Court might order." Hartke then moved to dismiss the appeals as moot.
Held:
    1. The issue here, whether a recount is a valid exercise of the State's power to prescribe the times, places, and manner of holding elections, pursuant to Art. I, § 4, of the Constitution, or is a forbidden infringement on the Senate's power under Art. I, § 5, is not moot, as the Senate has postponed making a final determination of who is entitled to the office of Senator pending the outcome of this action. Pp. 18-19.
    2. The District Court was not barred from issuing an injunction by 28 U.S.C. § 2283, which generally prohibits a federal court from enjoining state court proceedings. Pp. 20-23.
       (a) That section does not restrict a federal court from enjoining a state court acting in a nonjudicial capacity. P. 21.
       (b) The state court's recount functions are nonjudicial, as they consist merely of determining that the recount petition is correct as to form and appointing recount commissioners. Pp. 21-22.
       (c) The complaint did not seek to enjoin the action of the state court but rather to enjoin the recount commission from proceeding after the court had appointed members of the commission. P. 22.
    3. Article I, § 5, does not prohibit a recount of the ballots by Indiana, as the recount will not prevent an independent Senate evaluation of the election any more than the original count did, and it would be mere speculation to assume that Indiana's procedure would impair the Senate's ability to make an independent final judgment. Pp. 23-26.
321 F. Supp. 1370, reversed.
STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., filed an opinion dissenting in part, in which BRENNAN, J., joined, post, p. 26. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the cases.
Donald A. Schabel argued the case for appellant in No. 70-66. With him on the briefs was L. Keith Bulen. Richard C. Johnson, Chief Deputy Attorney General of Indiana, argued the cause for appellant in No. 70-67. On the briefs were Theodore L. Sendak, Attorney General, pro se, William F. Thompson, Assistant Attorney General, and Mark Peden, Deputy Attorney General.
John J. Dillon argued the cause for appellees in both cases. With him on the brief for appellee Hartke were David W. Mernitz and James L. Tuohy.