Roudebush v. Hartke

LOCATION:U.S. Court of Appeals for the Second Circuit

DOCKET NO.: 70-66
DECIDED BY: Burger Court (1972-1975)

CITATION: 405 US 15 (1972)
ARGUED: Dec 13, 1971
DECIDED: Feb 23, 1972

Donald A. Schabel – for appellant Richard L
John J. Dillon
Richard C. Johnson

Facts of the case


Audio Transcription for Oral Argument – December 13, 1971 in Roudebush v. Hartke

Warren E. Burger:

We will hear arguments next in number 66, Roudebush against Hartke and 67.

Sendak against Hartke.

Mr. Schabel, you may proceed whenever you are ready?

Donald A. Schabel:

May I please the Court.

These cases are here on direct appeal from an interlocutory injunction granted by the United States District Court for the Southern District of Indiana, sitting as three-judge court.

That Court by a 2:1 decision held Article 27 of the Indiana Election Code, insofar as it establishes a procedure for a recount of the votes cast for the Office of United States Senator to be unconstitutional.

Further consideration, the question of this Court’s jurisdiction has been postponed to the hearing of the cases on the merits.

The issues presented by the two appeals are the same.

In addition to the jurisdictional issue, the questions presented are as follows: without regard to the applicability of the Anti-Injunction Statute or to the alleged unconstitutionality of the election code, first substantive question presented is whether the interlocutory injunction was proper under established principles of equity jurisprudence?

The second question is whether the interlocutory injunction appealed from is prohibited by the language of the Anti-Injunction Statute.

The third question presented is whether Article 27 of the Indiana Election Code insofar as it establishes a procedure for a recount of the votes cast for the Office of United States Senator conflicts with Article 1, Section 5 of the Constitution of the United States, which makes a Senate the Judge of the elections returns in qualifications of its members.

Now, I am dividing the time of the Appellants with Mr. Richard Johnson, so I shall discuss the jurisdictional issue in the first of the questions I have stated.

Mr. Johnson will discuss the second and third questions.

Before addressing myself to the question of jurisdiction, I shall first state the relevant facts.

Appellant Roudebush and Appellee Hartke were candidates for the Office of the United States Senator at the January Election held in the State of Indiana on November 3, 1970.

The canvass of the return show that Hartke had the greater number of votes by a margin of 4,383 votes out of a 1,737,797 votes.

The Indiana Election Code provides that any candidate for any office voted upon in any election held in the State of Indiana including specifically the Office of the United States Senator has a right to petition for a recount of the votes cast in any voting precinct, any or all voting precincts of the State.

Provided he petitions in the appropriate Courts within 15 days after the election.

Pursuant to this, Appellant Roudebush filed Petitions for Recount on November 17, 1970 in certain selected precincts in 11 Indiana Counties.

Two days later, Appellee Hartke appeared in all 11 proceedings and moved to dismiss on the grounds at the proceeding interfered with the prerogatives of the United States Senate under Article 1 Section 5.

On December 1, 1970, the Superior Court of Marion County Room 3 in which one of the proceedings was pending overruled Hartke’s motion to dismiss and appointed the Appellee’s Samuel Walker, John Hammond, and Dugg Butler as a Recount Commission, the directed that they convene on December 8, 1970 and commence a recount of the votes.

On December 3, 1970, the Lake Circuit Court also overruled Hartke’s motion to dismiss.

Instead of seeking relief from the Supreme Court of Indiana and if necessary from this Court, Appellee Hartke instead filed a compliant for Injunctive Relief in the Court below on December 3, 1970, and this complaint he resided the proceedings had in the Marion County Election and alleged that the recount statute conflicted with Article 1 Section 5 of the Constitution.

Jurisdiction was predicated under 28 United States Code Section 1343 subparagraph 3 which confers jurisdiction on the District Courts in Civil Right Actions.

Generally, the complaint alleged that the Defendants acting color of law would deprive Appellee Hartke of the rights, privileges and immunities, secured to him by Article 1, Section 5 of the Constitution.

This complaint contained no explanation by relief was not sought on the Supreme Court of Indiana that contains no showing of irreparable injury.

The prayer was that a three-judge court be convened to declare Article 27 of the Election Code unconstitutional and to restrain the Defendant’s from proceeding with the recount.

Along with the complaint, Hartke filed a verified application for a Temporary Restraining Order.

In this application, he specifically alleged that he appeared in all 11 recount proceedings and raised the constitutional question and he also resided that the ruling of the Marion County Court against it.

Not withstanding this, the District Judge to whom the application was presented issued a Temporary Restraining Order without notice, although the recount was not scheduled to commence in Marion County for another five days.

Donald A. Schabel:

Thereafter, Hartke amended his complaint and Theodore L. Sendak as Attorney General of Indiana was permitted to intervene so as to defend — to be heard upon the constitutionality of the recount statute.

You say jurisdiction on a Federal Case was predicated upon that Section 1343(3)?

Donald A. Schabel:

That is correct Your Honor.

But that just a jurisdictional statute, what was the substantive provision?

Donald A. Schabel:

That is correct.

They allege no other statutory grant.

Because 1343(3) simply says that the District Courts have jurisdiction of any civil action authorized by law to be commence by any person.

Donald A. Schabel:

Pardon, yes —

That normally you site the law on which you rely.

Donald A. Schabel:

Ordinarily you precede under 42 United States Code Section 1983 when your –)

You do indeed but did this Plaintiff?

Donald A. Schabel:

This Plaintiff did not.

What did he rely on?

What federal substantive law?

Donald A. Schabel:

I guess he relied — you have to ask —

Maybe you are not the person to ask?

Donald A. Schabel:


You are Defendant, are not you?

Donald A. Schabel:

That was a point we have been trying to make.

On December 17, 1970, a hearing was held before a three-judge District Court and Appellee Hartke’s request for a preliminary injunction by 2:1 vote, that Court held Article 27 of the Indiana Election Code so far as to applies to races for the United States Senate to be unconstitutional.

The Defendant’s motions to dismiss where denied and the interlocutory injunction requested by Hartke was issued.

The majority and minority of the Courts subsequently filed opinions but made no separate findings of fact to conclusions of law.

Thereafter, both Appellants Roudebush and Sendak filed notices of appeal and on January 13 and 15 of 1971, jurisdictional statements were filed in this Court.

When the 92nd Congress convened on January 21, 1971, by unanimous consent of the Senate, the oath was administered to Appellee Hartke without prejudice to this appeal or to any recount that might ensue.

Thereafter, Hartke moved in this Court to dismiss the appeals as moot on the grounds that the Senate had already judged the case in his favor.

Then on March 22, 1971 this Court entered no corresponding jurisdiction.

Now, with respect to the jurisdictional question, there appeared to be two aspects.

The first is the Court’s jurisdiction of this, a direct appeal from the District Court; this other aspect is Appellee Hartke’s contention that the appeals were moot.

With respect to jurisdiction, this Court’s jurisdiction of course is invoked under 28 United States Code, Section 1253.

Jurisdiction under this section depends upon whether the case was one required to be heard by District Court of three judges.

Donald A. Schabel:

The authority to convene the three-judge court in this case rests on 28 United States Code Section 2281 which is set out on page 8 of Appellant Roudebush’s brief.

As contemplated by this section, Hartke’s complaint sought injunctive relief against the enforcement operation and execution of the States’ statute upon the grounds of the constitutionality of that statute.

So far the case is squarely within the statute.

But for 2281 to be applicable, the injunction must restrain the action of an Officer of the State in the enforcement or execution of the statute.

In this case, the duty to enforce the election recount statute is imposed upon the Circuit in Superior Courts to the various Counties by seeking to restrain the Appellant that is Roudebush from taking any actions whatsoever to affect recount procedures under the recount statute.

The injunction is thus directed against the Circuit in Superior Courts in which these proceedings were pending.

It has been recognized for many years that restrain of a party initiating that proceeding as tantamount to restrain the Court in which the proceeding was pending.

Accordingly, it follows that a Three-Judge Court was necessary to enter the injunction sought against Appellant Roudebush because such injunction necessarily restrained the action of the Eleventh Circuit or Superior Courts and the officers thereof in the enforcement and execution of the Indiana recount statute.

Now, with respect to the other aspect of jurisdiction, I do not think Hartke’s contention that the appeals are moot need detain us very long.

First, the Senate itself sworn in without prejudice to this appeal and suing recount, so in their action and from their view point they judge nothing, Secondly, the term for deceit and dispute does not expire for another five years until January 3, 1977.

So I do not think it could be said that there are not live issues before the Court.

Now, so much for the jurisdictional issue unless there are questions from the Court.

Thurgood Marshall:

One question.

Is there anything in Indiana Law that would make it moot?

I mean, does the recount has to be a certain.

I know it is a certain time before but is there a certain time when you—well, could you have a recount now?

Donald A. Schabel:


Because we were initiated within the proper time been suspended by this injunction and we are in the state of suspended animation right now, ready to go forward once the injunction is lifted.

Now, without regard to the applicability of the Anti-Injunction Statute or to the alleged unconstitutionality of the recount statute, the substantive question that I would like to discuss is whether the interlocutory injunction was proper under established principles of equity jurisprudence.

It would seem to be a hornbook law that Courts of equity should not act when the party has an adequate remedy at law and when he will not suffer irreparable injury that denied equitable relief.

In this case as I have already said, Senator Hartke interposed its constitutional contentions in all 11 State pending recount proceedings.

Two of those Courts rejected his contentions and ruled against him.

He then had an opportunity to reply to the Supreme Court of Indiana for writ of prohibition to review those questions and if necessary had a right to appeal to this Court under 28 United States Code Section 1257 subparagraph 2, and bring the question here.

Instead of that, being sought relief from the District Court.

But surely, relief from the Supreme Court of Indiana and from this Court would constitute an adequate remedy for proving equitable relief.

Moreover, his complaint neither his original complaint nor his amended complaint makes any allegation concerning irreparable injury.

Now, it is no answer to say that he filed a application for Temporary Restraining Order in which he tries to set out alleged injury because that application was not part of the pleadings, and it was not even served under Defendants.

And I, myself never first saw it until I was preparing this appeal.

The Court below however held as a matter of law that Hartke would suffer irreparable injury and only authority would sign, it was Humpty Dumpy stating that the harm to be avoided would take place immediately and irrevocably once the case seals and the ballot bags are broken.

But the breaking of the seals in the ballot bags could not cause irreparable injury for a number of reasons.

Donald A. Schabel:

First under the statute, the Court in which the recount is pending instructed by the statute, can pound the ballots and make an order for their protection.

Now it cannot be assumed or presumed that that Courts is not going to do its duty.

Next, so long as the ballots are preserved intact, it is of no consequence how they are originally counted or sorted.

And finally, since the Senate is the Judge of the elections in returns of its members, neither the original count nor the recount a binding on them.

So regardless of what happens during the recount, if it is not binding on the Senate, it can not cause irreparable injury to Senator Hartke.

Have not there Mr. Schabel as a matter of fact in our history, many, many recounts in Senatorial elections?

Donald A. Schabel:


There was one between the contest between Senator Morris and Senator Buchwald (ph)?

Donald A. Schabel:

Yes, in 1968 and no challenge to the guarantee of it was made that I can determine.

How about?

Donald A. Schabel:

And in 64.

Senator Tydings and Senator — the man who beat him in the —

Donald A. Schabel:


Senator Tydings is the Senior?

Donald A. Schabel:

Well, there was one between Martin O’Connor in Maryland in 1946, but that was conducted by the Senate itself and the expressed reason there was that the Maryland Law contained no provision for a recount.

Therefore the Senate did it.

Well, I was I asking of course about the recounts conducted under State Law?

Donald A. Schabel:

Well, I do not recall any between Tydings, Packwood and Morris and Laxalt and Cannon in the Senate and plus a number in the House.

Now, my time is up and now Mr. Johnson will continue with the argument.

Thank you.

Warren E. Burger:

Mr. Johnson?

Richard C. Johnson:

Mr. Chief Justice, and may I please the Court.

My task is a doubly difficult one because much of the ground that I was going to try it or plough has been taken by the previous case.

In fact, a better argument was presented at that time than perhaps I can present right now.

I would like to advance two points to the Court which in the opinion of the Appellant’s requires a reversal.

First is that the provisions of 2283 are applicable to this case.

As the Court knows, this Act is written in plain and clear language and provides that no injunction shall issue to stay any State Court proceeding.

The Act with minor changes as Mr. Justice Stewart pointed out in previous case date back to 1793.

There are only three —

William J. Brennan, Jr.:

I just imagine that, I gather there is no question nor complaints that a recount proceeding in your Circuit or Superior whatever the Court is, is a State Court proceedings for purposes one of two?

Richard C. Johnson:

That is an issue, Mr. Justice Brennan and the Appellant claims that since a State Court proceeding namely recount is administerial in a non adversary proceeding that is it not a State Court proceeding within the meaning of 2283.

Warren E. Burger:

Well, are the Commissioners appointed much like special masters are appointed by a Court historically?

Richard C. Johnson:


That is Mr. Chief Justice.

Warren E. Burger:

And the Indiana Statute provides for the appointment of these Officers?

Richard C. Johnson:

These Officers are Officers of the Court.

They have to be appointed by the Court.

The Court is under a duty by statute to preserve the integrity of the ballots, and as far as a non-adversary proceeding is concerned, the Appellee himself filed two preliminary motions and two different proceeding.

Motions to dismiss, both of those motions were ruled adversely to the Appellee and he chose to fight his fight in the forum of the Federal District Court.

Warren E. Burger:

I suppose the appointment of these Commissioners are Special Officers as an alternative to having the State Court Judges sit down and count a million and half votes themselves, is that correct or?

Richard C. Johnson:

I would say that is correct, Mr. Chief Justice, and I would also add that the Appellee and the Lower Court in my opinion failed to distinguished between the election contest and a recount procedure.

The Indiana Law provides for both types of proceedings.

In election contest the distinction is this that in a election contest, it is an adversary proceeding and no recount commission as such is appointed.

However in a recount, of course, theory is a retabulation of the vote after the Commissioners of the Recount Commission have been appointed by the Court.

William J. Brennan, Jr.:

Have your State Court had occasion to consider whether a recount proceedings was a judicial as opposed to administerial proceeding?

Richard C. Johnson:

Not to my knowledge, Mr. Justice Brennan.

Byron R. White:

Mr. Johnson in Indiana, do you have a Court proceeding to appoint a Guardian or a Trustee?

Is that a Court proceeding?

Richard C. Johnson:

Yes, Mr. Justice White.

Byron R. White:

Is there any parallel there to this kind of thing?

Richard C. Johnson:

If there is a parallel, I am not aware of it.

But I will say this.

The parallel was probably this, that the Commissioners, if there is one, that the Commissioners do report to the Court.

The Court has jurisdiction of all times over the activity of the Commissioners and the Court is under a duty as I as said before to preserve the integrity of the ballots.

Byron R. White:

Well, could your Court remove a Commissioner in the midst of the recount?

Richard C. Johnson:

My understanding is the Court could remove one or could remove the entire Commission at any time during the procedure.

If in the Court’s opinion, the Commission did not follow the mandate of the statute itself.

Byron R. White:

Could the Court determine what other procedures is followed by the Commissioners are proper or illegal?

Richard C. Johnson:

Yes, the Court could make that determination and in fact the Court is under a mandatory duty by the statute to make such a determination.

Appellee argues at one point and the Lower Court reasoned that this was a case analogous to a Civil Rights Case and dependant on a case, Baines which has been alluded to before in the prior case, Baines against the City of Danville for its authority to issue the injunction.

Richard C. Johnson:

The Baines Case was a true Civil Rights Case.

This action does not involve any First Amendment Right, the violation of any First Amendment Right.

There is no penal prosecution under a States statute which is invalid on its face.

No prosecution conducted in bad faith or for the purpose of harassment.

It does not involve a statute as I say which was unconstitutional on its face.

The second point that I would like to bring to the Court’s attention is the constitutionality of the Indiana Recount Statute.

This thing resonates the provision of privileges and immunities?

Richard C. Johnson:


And it is up to this Court to see if this particular case fits a category?

Warren E. Burger:

Was not it up to the three-judge court to look into that and see whether that was sham breathing of whether it had a basis?

Richard C. Johnson:

Yes, in the Court did hear one witness, that first of all issued a Temporary Restraining Order without notice to the party.

And then the Court heard one witness in an evidentiary hearing, read the experience of one recount at a prior time, that the member of the Recount Commission duly appointed by the Court.

The Lower Court further reasoned that the Indiana Recount Statute is unconstitutional and in violation of Article 1 Section 5 of the United States Constitution which provides very briefly that the Senate is the body which determines the election and qualifications of its members.

Article 1, Section 4 imposes a duty on States to prescribe the places, time, and manner of holding the elections for Senators and Representatives.

It is our contention that the Indiana Recount Statute is more analogous to the counting of vote than it is to an election contest.

The Recount Statute although the Recount Commission is appointed by the Court and so forth, the Recount Commission simply retabulates the vote.

This of course, under the supervision of the Court.

The Lower Court relied on three decisions of the Indiana Supreme Court.

I think it is significant to realize that from the record, the Appellee chose not to take his case through the State Court procedure but chose instead to go directly to the Federal Court after having lost his case on the motion to dismiss in the Lower Court.

Two of these three decisions which are relied on by the Appellee were decided prior to the 1961 Amendment of the Indiana Recount Statute.

The amendment provided that recount would be use for informational purposes and would not supersede any previously issued certificates of election.

Logically, the Amendment would apply to races to the US Senate.

Since the Indiana and Federal Constitutions have primarily identical provision.

In addition, it is the Appellant’s case that a recount stands on the same footing as the original count, that a recount is merely a retabulation of the vote.

The Appellee will counter that argument by saying that, “Well, judgment is exercised by a Recount Commission”.

I would answer that by saying “The judgment is exercised when the vote is tabulated initially”, that is which axis is within the circle, which is without.

If the vote has been cast by a machine, whether it has been counted or not.

The Supreme Courts of the States of Minnesota, Georgia, and Oklahoma have held that a recount procedure does not violate the provisions of Article 1 Section 5 of the US Constitution.

Providing the procedure is the intrical part of the Election Code of the State.

This is the fact in the State of Indiana.

Richard C. Johnson:

The reasons for having a recount procedure are compelling.

In Indiana as in many States, polls are open from 6 am until 6 pm.

Members of the Precinct Election Boards have had a long day by the time the polls close.

However afterward, they must count the votes and certify the results to the Counting Board.

The members of the Precinct Election Boards in many cases are housewives, anxious to get home to the family.

What I am trying to bring to the Court’s attention is simply that the chance of error in the initial tabulation increases.

There is a direct relationship between the chance of error and the physical well being of the Precinct Election Board.

Therefore, it is incumbent to have some sort of recount procedure.

In view of the safeguards present in the statute and the fact that the procedure is and has been an intrical part of Indiana Election Code since 1945, the Appellant respectfully submits that there is no conflict with Article 1 Section 5 of the US Constitution.

I will sit down if the Court has no questions.

Thank you.

Warren E. Burger:

Thank you, Mr. Johnson.

Mr. Dillon?

John J. Dillon:

Mr. Chief Justice, and may I please the Court.

I would like to just review the atmosphere that surrounded this law suit so that you might understand the factual situation and unlike many of the cases that have been argued here today, this was a factual situation in which facts were presented.

A credible witness was presented and the facts were uncontroverted.

So, the facts underlying this case as shown in our Appendix are extremely important.

Warren E. Burger:

Well, you are speaking of litigation now in the State Court in order in the Federal Court?

John J. Dillon:

In the Federal Court.

Evidence was introduced in the Federal Court, the thrust of which proved that this was in fact a contest.

Be it aroused by any other name, but what is done in Indiana is in fact a contest.

That evidence by credible witness uncontroverted was introduced and is in the Appendix.

Now, here was the situation.

Warren E. Burger:

But what was the relief asked before in the State Court?

John J. Dillon:

In the State Court?

The State Court Sir was the petition for a recount under the State Statute.

Warren E. Burger:

But you say in fact it was more than a recount?

John J. Dillon:

It was a contest as the Indiana Supreme Court has three times held declaring this very statute to be unconstitutional, before it was amended and after it was amended wherein the argument is made it well.

After the Amendment, it became a discovery statute.

But in fact in Bachelorette (ph) cited by the our Court, our Supreme Court, the Indiana Supreme Court said “It violates Article 4 Section 10 of the Constitution of Indiana, which is the mirror image of Article 1 section 5 of the Federal Constitution”.

John J. Dillon:

So, three times, our highest Court that struck down this statute as saying that it could not apply to the members of the Indiana General Assembly.

Now, there are 4,400 precincts in Indiana.

They petitioned in 11 Counties.

440 precincts and 11 Counties are 4,000 plus precincts.

In one of the Counties in one in which the principal case came up into the Federal Court, came over in the Federal Court, it was fragmentary, just part of the precincts.

Now, the Court was moving.

Commissioners were been appointed.

33 Commissioners were being appointed in 33 different State Jurisdictions.

As shown by the evidence and by the Law of Indiana, the Appellant’s party control every precinct in Indiana, all 4,400 of them.

By that I mean, the Judge and the Inspector in the majority party which was Appellants control every precinct, giving them the opportunity to make the original judgment as state of a Counsel as each person came to the polling place.

In Marian County, the Election Board by virtue of the fact that his party had cast a highest number of votes at the previous election was controlled by Appellant’s party.

The Canvassing Board which does check arithmetical errors was controlled by Appellant’s party.

Now, in that atmosphere and I must be candid to tell you, every Judge in Indiana at this time was also selected on the partisan political ballot.

Right along with the County Treasurer and the County Clerk, and our Supreme Court and Appellate Court Judges are like wise selected.

So, you can see the atmosphere in the United States Senate raise between two strong political parties.

Now, that was the atmosphere, and the recount proceeded.

Alright, it was at that point that we had to look at the Indiana statute on recounts, which has been thrice declared to be unconstitutional.

That is violating of the Indiana —

John J. Dillon:

Article 4 Section 10 of the Indiana Constitution which says, the General Assembly shall be the Judge of the election qualifications and returns of the members of the General Assembly.

A mirror image of the Article 1 Section 5 it says, “United States Senate will be the Judge of the election returns of the qualifications of a Senator.”


Warren E. Burger:

Do you feel that is binding on the Federal determination here?

John J. Dillon:

I can not see how logically it could prove, otherwise, there is no decision at any place that says that this is not true that I confine that if you get in to the the Judge and the Senator’s race, the jurisdiction is in the Senate.

Now, these recount Commissions were proceeding to judge the Senatorial race.

That is the thrust of this law suit.

Of course, you have the merits now — did you get to jurisdiction?

John J. Dillon:

Oh, yes.

Jurisdiction was predicated on 1343 A, and Article 1 Section 5 of the Constitution.

You do not need any —

John J. Dillon:


Any statute from any other (Inaudible)

John J. Dillon:

That question was never raised in the Trial Court.

But I say this, we are here now as the Appellees.

And if the judgment was solid, then it was solid.

And I say that in the Powell Versus McCormick, this Court said that the jurisdiction under the 1331 A, the General Jurisdiction Statute is valid.

So if that be true, then we are entitled to the position because we are here as the Appellees, and we got the Article.

How about 2283?

John J. Dillon:


I will get to it and you want me to reach this now?

No, no, you pick it now.

John J. Dillon:


Warren E. Burger:

Upon your hesitating here for a minute, let me ask you about this jurisdictional point.

John J. Dillon:

Yes Sir.

Warren E. Burger:

If in fact there was no jurisdiction in the three- judge District Court.

I assume you mean when you refer to Trial Court, you are talking about three- judge District Court.

John J. Dillon:

Yes Sir.

Warren E. Burger:

In fact there was none.

John J. Dillon:

We do not consider the State Court and it was just a trial court which I will get to.

Warren E. Burger:

Now, if in fact there was jurisdictional infirmity, does it make any difference for there anyone raised it at anytime?

John J. Dillon:

No I suppose — there was a jurisdiction of the subject matter, I would so concede.

Nevertheless it was not argued.

I mean the lack of the pleading position was not argued and the Court mentioned, Title 42 1983, and the Court here — assume that we are correct, that we all would agree, if we could agree to that that there was a clear violation of Article 1 Section 5.

Then 1443(3) says if the law provides, we can go into District Court and get relief.


Thurgood Marshall:

Trouble with that was presumably — what about the Supreme Court of Indiana’s point that they have a right to just see, not that they can do anything about it —

John J. Dillon:

Do what Sir?

Thurgood Marshall:

Just Count them.

John J. Dillon:

That is the Supreme Court of Indiana’s position?

Sir, that I view that to be their position.

Thurgood Marshall:

If they can just recount them, is that not what they said in their last case?

John J. Dillon:

No Sir.

Three times, they have said and the last time being that in the case of a member of the Indiana Legislature that this statute was unconstitutional.

Thurgood Marshall:

And that you could not have a recount?

John J. Dillon:

Yes Sir.

Three times the Supreme Court struck down the very statute.

Now, the only basis that they consent —

Thurgood Marshall:

And you can ever recount them —

John J. Dillon:


Thurgood Marshall:

Then, you can not have it —

John J. Dillon:

That the members of the legislature of the United States Senate or Congress.

Thurgood Marshall:

Well, who can you have at court, dogcatcher?

John J. Dillon:


Thurgood Marshall:

I see.

John J. Dillon:


Because dogcatcher is not prescribed by Article 1 Section 5, or section —

And Mayor and Governor and —

John J. Dillon:

Not the Governor.

Not the Governor.

John J. Dillon:

The Governor, because you see, when they amended a statute, they said the Lieutenant Governor, the Governor and members of the General Assembly,

How about (Voice overlap)

John J. Dillon:

Yes, you could permit.

You could permit.

Judges are elected on this?

John J. Dillon:

Judges are elected on the partisan political ballot.

Even if they recount that —

John J. Dillon:

For Judge?

Either could be.

Could be?

John J. Dillon:

I think so.

Warren E. Burger:

Mr. Dillon tell me once again why is Indiana decision based on Indiana Constitutional Provisions is binding for Federal Constitutional purposes?

John J. Dillon:

Well, I say that the Court was justified.

There is no logical difference between the rationality of the Indiana Court’s deciding that a member of a legislature cannot be contested except in the legislature than saying a member of the United States Senate cannot be contested anywhere except in the Senate, and the reasoning in the cases cited in Batchelet, Beaman, Acker in the Indiana Cases which we relied upon are identical with the reasonings in Barry versus Cunningham,

Well, the rational difference might be that you might disagree with the Indiana Court?

John J. Dillon:

That is true, that is true.

Well, I know legal historical precedent where that is true Your Honor.

In each case, there is no precedent that says it was a matter of contest, it does not belong in the legislative body.

Be it the State Assembly or be it the National Congress.

Well, something might depend upon whether or not this is classified as a recount or a contest?

John J. Dillon:

Precisely, Your Honor.

Precisely, and I say that our evidence shows —

That it is that is not a —

John J. Dillon:

That there is a contest and the Supreme Court of Indiana, three times said it was unconstitutional.

That is the only basis it will be unconstitutional.

It attempted the Judge derive a member of the Indiana General Assembly under Article 4 Section 10 of the Indiana Constitution which is identical to Article 1 Section 5 of the Federal Constitution.

Warren E. Burger:

But what if the report of the Commissioners here was simply to say they have canvassed all of the ballots and that the true and correct count is as follows and said nothing else?

John J. Dillon:

If the statute provided for a simply arithmetical determination as a Canvassing Board did in this case and incidentally did make some mathematical changes in the very county in question and forwarded those, that is one thing.

But the evidence was and the fact is that they perceived to get into the paper ballots.

And they perceived to make judgments again on how the precinct people counted these ballots.

And the undisputed evidence was and the fact is and even in our Court’s decisions they even have printed where the Supreme Court Judges have said will add access too far and that check is wrong.

So, that is where we get into the judgment quality of the statute.

Warren E. Burger:

Well, but after contests or recounts or whatever name you give them are held, they always come either to the House of the Senate and the House of the Senate as the case maybe exercises a new and original and independent judgment, do they not?

John J. Dillon:

But our statute does not so provide.

Warren E. Burger:

Well, but —

John J. Dillon:

They should.

Warren E. Burger:

You have already argued, you have already argued that the Senate is the final judge?

John J. Dillon:

Yes Sir.

Warren E. Burger:

And therefore, the Senate and the House is the matter of fact have never accepted state findings on this, have they?

As final and finding?

John J. Dillon:

That by all —

Warren E. Burger:

They come before a subcommittee and they have the —

John J. Dillon:

Yes Sir.

Warren E. Burger:

Hearing and if there is a dispute over ballots or dispute over the count?

John J. Dillon:


Warren E. Burger:

The Senator of the House makes the final decision?

John J. Dillon:

That is correct.

Warren E. Burger:

But, can they do that if they have not got a count?

John J. Dillon:

They have a count here.

Warren E. Burger:

Very well.

John J. Dillon:

And they had a certificate presented by the Secretary of State to the Governor, and by the Governor, the Senator Hartke and presented by Senator Hartke to the United States Senate, they have a count.

Now, to go behind that count, if the statute provided for a pure arithmetical recounting, that is one thing.

But the evidence here was and the fact was and our Indiana Supreme Court has three times found that it is a contest when get into the judging the validity of these ballots for — member of the General Assembly or the United States Senate or Congress.

I think that logically follows because those precedents were footed and founded upon the same principles.

Well County is the first place that requires judging ballots?

John J. Dillon:

That does.

It does.

That comes under Article 1 Section 4.

You got to start some place.

Now, you have to start and the State I take it is in authorized to count the ballots.

John J. Dillon:

It is.

For, instance, and then that in those instances, it judges ballots, will it be invalid?

John J. Dillon:

It does, those three people, appointed by Congressman or other political party did do that.

So, if the State says that this counting procedure is not over yet, we have some procedures to go through yet.

Why is it not authorized to do that even if it involves doing what is already done, judge some ballots?

John J. Dillon:

They can not judge the ballots, they can recount the ballots.

Well, I know but in the first place, they counted them and judged the ballots?

John J. Dillon:

They did.

Now, why can not they do it over?

John J. Dillon:

Because that is not a continuation of the election process under Article 1 Section 4.

That becomes —

Well, you said they can count them over?

John J. Dillon:

Yes, provided only —

And you do not think you can do the same thing, counting them again that you did not counting them in the first place?

John J. Dillon:

Ah, that is the counting and the first time counting.

The second time, argument on a Laxalt Candidate and the Wickersham Case and if that is all they did was count them, fine.

Well, they are not doing anymore of the second go around than they did on the first?

John J. Dillon:

Quite to the contrary.

Well on the first go around, they had to judge the ballot.

John J. Dillon:

Quite to the contrary, as the evidence showed, they are making a judgment on what was done at the precinct polling place and as the evidence showed, there was no way to unscramble that, and that is wherein the irreparable harm was.

They could never get to the Senate and determine how that judgment was made by the Recount Commission if that evidence was not maintained until it went to the United States Senate.

And interestingly enough, a year has passed over and no petition has even been presented to the United States Senate by the Appellant here in, asking for a contest of this election.

Now, it is of course, argument on Article 1 Section 4, Article 1 Section 5, but our evidence showed that this violated Article 1 Section 5.

It got into the prerogatives of the Senate.

Warren E. Burger:

How does it take anything away from the Senate as long as the Senate has the final word on the recount?

John J. Dillon:

Because the evidence would be irreparably commingled and it would be impossible for the Senate to determine how the Recount Commission viewed what the Precinct Commission did.

Warren E. Burger:

Or is not the custom to certify the ballots and actually deliver them physically to the Senator of the House including in a separate, impounded group all those which are contested or questioned or challenged?

John J. Dillon:

The Senate has no specific rules on it.

They proceed ad hoc on these matters but that is the custom.


Let me say this.

It has been done in Senatorial recount or contest cases.

But that was part of our equity that we felt like we were entitled to and Three-Judge court so ruled that once these Recount Commissioner started re-judging, and said oh, no, the evidence all carefully lays out exactly how this was done and how that they got into these paper ballots, which went all the precincts.

Some paper ballots and the all the precincts.

Now, the machine, you see is no problem, and the machines make arithmetical count.

But on the paper ballots when they come in from the precincts, that is a far different thing.

Some are in the counted bags as the evidence shows.

Some are rejected bags.

Now, these Commissioners proceed to the redo that.

One of the Counties, even though the States Statute requires the whole counting to be machine, Wayne County as the evidence showed was all on paper ballots.

So, here we have all of these Commissions, 11 different Commission proceeding to make judgments on these ballots which were passed, and the Court found are the evidence that that belonged in the United States Senate.

Warren E. Burger:

As the Federal Court ever enjoined the State’s recount before and case that you know of?

John J. Dillon:

Well, I have found that in every case where it violated Article 1 Section 5, they have said that they could not permit it to go forward.

Warren E. Burger:

Are they cited in the brief, I didn’t identify those cases?

John J. Dillon:

Well, in Laxalt versus Canon, they said that they granted the relief there and then went on and there was recount before the contest you see.

There was no question raised about the recount and Laxalt versus Canon went on to say that the Senate is the Judge under Article 1 Section 5.

So presumably in Laxalt versus Canon, if there had been — if in fact, their recount was a kind of a recount we have, and that is what is the essence of this law suit, what this recount constitutes, and we say it constitutes a contest and our Supreme Court of Indiana three times said the same thing as we see it.

We can not see how there is any cavil in that argument.

But nevertheless it has been raised and we are trying to meet it.

Now, we went into Federal Court and made a Federal Constitutional claim, a Federal Constitutional claim.

Article 1 Section 5 of the Constitution.

There was no underlying state question involved because if the state — law question was clear as we see it, three times the Supreme Court had said that it was not a viable statute so far as the State Legislature was concerned.

Now, we think it is only reasonable if that be true and now with the underlying constitutional basis, that that certainly is true, the Office of the United States Senate.

Now, motions were filed under 2283 in the Federal Court.

We met those and we meet them now in theory that this is not the type of proceedings that 2283 prohibits granting an injunction against.

These Commissioners — this is not Court Litigation because there is no appeal in Indiana from a recount.

There is no appeal.

You can not do anything and yet (voice overlap)

Thurgood Marshall:

How did the three cases get there?

John J. Dillon:

Writ of prohibition.

Thurgood Marshall:

Well, why did the state–

John J. Dillon:

The State Court remedy used in the Batchelet —

Thurgood Marshall:

I mean, the way you have three cases that you say are absolute sure far precedents, why would you go in —

John J. Dillon:

Alright, I will explain this.

First of all, why do we go Writ of Prohibition?

All through the brief, I indicate that writ of prohibition is the simple remedy.

Well, that depends on what the factual situation is and how fast things are moving.

Now, Indiana writ of prohibition or the rules of our procedure requires that — first of all, if an emergency writ is not granted and it is very difficult to get emergency writ, then the petition for the Temporary Writ of Prohibition and alternative writ of mandate must lay over seven days.

And, that the only hearing would be 2 o’clock on Monday.

Alright, now if you file on Tuesday and you do not get a hearing on you Temporary Emergency, then you could be put off 13 days.

Now this two Courts had overruled us.

Our motion dismissed on the ground they where violating Article 1 Section 5 with the Federal Constitution, not the State Constitution.

John J. Dillon:

So, we went to Federal Court to get a Restraining Order to stop it, to hold it and see whether we were right —

Thurgood Marshall:

Assuming you filed one under the Indiana Constitution on a Saturday,

John J. Dillon:


Thurgood Marshall:

You would have been in free.

John J. Dillon:


Thurgood Marshall:

You would have been in free, you would have won.

John J. Dillon:

If the Court ruled, as we can get the Court to hear it.

Thurgood Marshall:

The only way you can lose would be the Court would have to —

John J. Dillon:

Change the law.

Thurgood Marshall:

Would have to overrule three prior decisions, that is the only way you can lose.

John J. Dillon:



John J. Dillon:

For two reasons.

We thought that under the fact situation, it was our judgment that Writ of Prohibition was not an expeditious remedy but more importantly before this Court, we do not think we had exhausted this straight remedy where we could go into the Federal Court or Federal question without an underlying state question.

We did not see any question of abstention or comity involved in this.

So, we went to Federal Court.

We got a Restraining Order and then we got a Temporary Injunction after a full scale hearing where evidence was had.

Now, the question said was there any Indiana precedents and say that this is a ministerial proceedings?

And the answer to that is yes.

There are two precedents cited in our brief.

Watson versus Biggs (ph) and State Ex Rel McCormick.

Do they say Ministerial or Non Judicial?

Which term they use?

John J. Dillon:


They are intermixed but they say that they are not the part of animal that we say, we are talking about in a 2283 prohibition against that grant them injunction.

And, we cite many authorities and there is Court deposition that these were not proceedings in the State Court which were specifically prohibited under Younger.

Certainly, they are criminal prosecutions and Watson versus Pig and the State Ex Rel McCormick, one was a Prosecutor and one was a County Auditor, and they described these people as a ministerial and I believe Counsel in appellant’s brief concedes or at least argues the same way that these are ministerial proceedings, not judicial proceedings, or that they are not judicial proceedings.

Now, the next question is of course, does John reply?

We say no.

We say it does not apply for a reason that these are not State Court proceedings under 2283.

John J. Dillon:

And, I would like to also cite the case of Hobbs versus Thompson which was previously cited because again, it was not exactly a 2283 case but it does give an excellent review of what the Younger decisions made were called at this February sac state decisions in Younger.

And, Judge Goldberg in that case which has been previously cited here gives his view, a very rational view of the application of 2283.

Now, after this case was tried and here in comes a —

Warren E. Burger:

No, excuse me.

We will finish today.

We will finish today and you have some time left yet.

John J. Dillon:

15 minutes as per my computation.

At anyway, prior to the taking — first of all, the issue the (Inaudible) issue, Hartke presented himself on January 21 he was seated.

The Senator Curtis motion said that he would be seated with unanimous consent without prejudice to this appeal pending in the Supreme Court and recognizing that this Supreme Court might order a recount, to that effect.

Now, I suggest you to that language is completely nugatory.

It means nothing.

Senator Hartke is seated just like every other Senator.

He seated savvy to Article 1 Section 5 of the Constitution.

Warren E. Burger:

And then, we should not really be here today?

John J. Dillon:

That is my next point.

We filed a motion to dismiss, and we cited Barry versus Cunningham.

Now, it is 1929 case involving Senator Beyer.

But the fact is as far as I can see, that case is not been in anyway trampled upon any of these decisions.

And every decision underlying the State Court, be they Federal or be they State Court or be they State Legislature or be they Federal Legislature, when the Senator or the Assembly Men seats himself and is seated, then, then this thing moves into that body.

And, that is what Senator Beyer said, that is what the Barry versus Cunningham involving Senator Beyer said.

He was seated, and this matter is now for the United States Senate to determine.

I can not see what can be done at this point.

Except, let this matter go to the United States Senate.

Now, there is quarrel because we went to Federal District Court to press a Federal claim, a Federal Constitutional Claim under Article 1 Section 5.

I raised the question, why does not the Appellant go after year to the United States Senate where he could get all the relief that he could ask for if he convinced the Senate that he is correct in his position.

So, there is not really that this case is not moot.

It was not a case when we tried it in the Federal District Court, but once he became seated at the United States Senate under the rule of Barry versus Cunningham, this case is moot.

What could the Senate do now?

John J. Dillon:

What could he do now?

Now that you conceded, what could the Senate do now?

John J. Dillon:

Oh, I take a petition to Senate and ask for a recount.


After the Senator is seated?

John J. Dillon:

I think they could, yes Sir.

I think you see,

How did that end up under Article 1 Section 5 expelling that they founded it?

John J. Dillon:

Article 1 Section 5?

Yes Sir.

And that, we expose them?

John J. Dillon:

You mean if they —

If they found against it?

John J. Dillon:

Well, I do not think it would be expulsion, I think it would be a majority vote situation, where they found that he was not elected, that is the normal procedure.

And, he is already been seated as there for years?

John J. Dillon:

Yes Sir.

He has been seated, January 21 of —

(Laughs) As far as you come out, you can been conceited, at the end of it both from the Senate and in the Courts?

John J. Dillon:

That of course is our position and we filed a motion —

You — since he has been seated, they could not now undertake a recount in the Senate?

John J. Dillon:

Well, I do not know what the Senate can do because they adopt different rules on these cases as they go along.

You see and I hate to say it —

Well, my brother Stewart said you do not have to answer that.

You are here in the Court, all you need is to convince the Court that yes they have been seated.

John J. Dillon:

But I know that he had been seated?

When you get to the Senate, then you can make that argument over there.

John J. Dillon:

Yes Sir, and of course, we will raise a doctrine of laches, if we get to the Senate a year later because the fact is, these machines have been cleared and pictures have been taken — but that is not before this Court.

But, the jurisdictional question under Article 1 Section 5, is certainly here.

He has been seated, just like every other Senator and this language in the Senator Curtis motion has no constitutional effect.

Warren E. Burger:

Was the Senate in putting that language in just being polite to the Supreme Court?

Was that the case?

John J. Dillon:

I would hope so Your Honor.

John J. Dillon:

That would be a new departure in some regard, I suppose.

But seriously, I do not think it means a thing constitutionally.

I think he seats there just every other Senator subject to be in crude that he was not elected and the place that you prude that in the United State Senate.

Now, that is the ruling Precedent at this Court in Barry versus Cunningham.

And, the remarkable thing even the late cases be the Laxalt or be there Wickersham, when they get in this —

No, because it is a state case.

John J. Dillon:


But they all fall back deceited.

The Constitutional Provision in every State is very nearly identical to the Federal Constitution Provision Article 1 Section 5.

And, they all fall back to the same argument.

Well, the Legislative Body is the judge of the election, returns and qualifications of the member.

Now, we are talking about the election returns and qualifications of the United States Senator, why should they not be presented to the United State Senate?

Why should it not be presented there in the first instance?

We filed a motion to dismiss on this Court, the Court deferred the jurisdictional question till the day as I understand it, and I want to press strongly to the point that he is seated in under Barry versus Cunningham that I believe that in (Inaudible) this case, I think it is moot.

I do not think anything could be done.

The State recounts as in the various — there are all kinds of different cases on them.

Some say they are valid and some say they are not, and you have to look at the various State Laws to determine whether they would be valid measures in Article 1 Section 5.

But look at our recount statute and what Laxalt v. Cannon says about Nevada’s case and what Wickersham says about the case in that State or the Minnesota Case.

We know what the Indiana Courts upheld.

They have held the statute unconstitutional, that it violates Article 1 Section 5.

Now, the Trial Court did mention as I said title 421983 of the Civil Rights Act.

We trouble ourselves with this question.

How do you go in?

Assuming we are right that out here is a body, a Ministerial Body actually violating the Senate’s prerogatives Article 1 Section 5 which we thought we proved and the Court thought we proved and the evidence shows it.

We meticulously put the evidence in.

So, we would not get up here and say well, it is a facial argument.

On its face they say recount.

So if on its face it says recount, if you can count them once, you can count them twice argument.

So, we said we got to prove that you do not do that, and we did prove it and the Court so found that this is a contest.

That moves it in to Article 1 Section 5, that moves it in to the Senate.

John J. Dillon:

The important thing, I think that there is no question that the fact shows that the Congressman, Appellant Hartke and Appellant Roudebush had controlled the polling places as party.

Had control of the Recount Commission, had control of the Canvassing Board.

Now they wanted to get into a further contest.

They wanted to go in to 11 separate Counties, isolated precincts at some case and rehash those Judges.

The Court found properly as the Indiana Supreme Court had found three times that that violated Article 1 Section 5.

We do not think it is a question of exhaustion of State remedies.

We do not think the Writ of Prohibition was necessary, we think we can go the Federal Court and press a Federal Claim where there is no uncertainty in the State Law.

And, we did so.

Thank you your Honors.

Warren E. Burger:

Thank you.

You have three minutes remaining Counsel?

Donald A. Schabel:

Mr. Chief Justice and may I please the Court.

I will be very brief but Mr. Justice Marshall already asked the question that I have in my mind, and that is simply if the Indiana recount statute is so unconstitutional, why did not the Appellee seek redress there?

As far as the question of the seating of Senator Hartke in making the case before us moot is concerned, Senator Hartke was asked to step aside at the time the oath was administered, and a separate oath was administered to him in which he swore to abide with the constitution and so forth.

But subject to this appeal that is now pending.

It is our contention that this was a conditional seating and does not in fact moot this particular case.

The Indiana Recount Statute just one further point, the Indiana Recount Statute is in aid of the Senate’s power to judge the election of its members, not interrogation of it.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.