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
Media for Roudebush v. Hartke
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.