ROUDEBUSH v. HARTKE ET AL.
No. 70-66
Supreme Court of the United States
February 23, 1972
405 U.S. 15
*Together with No. 70-67, Sendak, Attorney General of Indiana v. Hartke et al., also on appeal from the same court. Argued December 13, 1971.
Donald A. Schabel argued the cause 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.
MR. JUSTICE STEWART delivered the opinion of the Court.
The 1970 election for the office of United States Senator was the closest in Indiana history. The incumbent, Senator R. Vance Hartke (Hartke), was declared the winner by a plurality of 4,383 votes—a margin of approximately one vote per state precinct. On November 16, 1970, 13 days after the election, the Indiana Secretary of State certified to the Governor that Hartke
Hartke then filed a complaint in the United States District Court for the Southern District of Indiana asking for an injunction against the recount. He invoked federal jurisdiction under
On January 21, 1971, shortly after the jurisdictional statements were filed, the Senate administered the oath of office to Hartke, who had been issued a certificate of election by the Governor. Hartke was seated, however, “without prejudice to the outcome of an appeal pending in the Supreme Court of the United States, and without prejudice to the outcome of any recount that the Supreme Court might order . . . .”5 Following the Senate‘s decision to seat him, Hartke moved to dismiss the appeals as moot. We consolidated both appeals and postponed further consideration of questions of jurisdiction to the hearing of the cause on the merits. 401 U. S. 972.
I
We consider first the claim that these appeals are moot. This claim is based upon the proposition, as stated in appellee Hartke‘s brief, that the “basic issue” before the Court is “whether appellee Hartke or appellant Roudebush is entitled to the office of United States Senator from Indiana.” Since the Senate has now seated Hartke, and since this Court is without power to alter the Sen-
The difficulty with this argument is that it is based on an erroneous statement of the “basic issue.” Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question—a question that would not have been the business of this Court even before the Senate acted.7 The actual question before us, however, is a different one. It is whether an Indiana recount of the votes in the 1970 election is a valid exercise of the State‘s power, under
That question is not moot, because the Senate has postponed making a final determination of who is entitled to the office of Senator, pending the outcome of this lawsuit. Once this case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate will be free to make an unconditional and final judgment under
It is the position of the appellants that, quite apart from the merits of the controversy, the three-judge District Court was barred from issuing an injunction by reason of
We have in the past recognized that not every state court function involves “litigation” or “legal controversies.” In the case of Prentis v. Atlantic Coast Line R. Co., 211 U. S. 210 (1908), the Court reviewed a federal injunction preventing a state commission from fixing passenger rail rates. The Court assumed that the commission had the powers of a state court and that the predecessor of
To determine whether an Indiana court engages in a judicial function in connection with an election recount, we turn to the law of that State.14 In Indiana every candidate has a right to a recount and can obtain one by merely filing a timely petition in the circuit or superior court of the appropriate county. If the petition is correct as to form, the state court “shall . . . grant such petition . . . and order the recount . . . .” When it grants a petition, the court is required to appoint three commissioners to carry out the recount. Once these appointments are made, the Indiana court has no other responsibilities or powers.15
The exercise of these limited responsibilities does not constitute a court proceeding under
And finally, Hartke‘s complaint in this cause did not ask the three-judge federal court to restrain the action of the Indiana court as such. It did not seek to enjoin the state court from ruling on the formal correctness of the petition; it did not even seek to enjoin the state court‘s appointive function. It sought, rather, to enjoin the recount commission from proceeding after the court had appointed the members of the commission.17
III
We turn, therefore, to the merits of the District Court‘s decision. The Indiana Election Code calls for the vote to be initially counted, in each precinct, by an election board. After recording the voting machine totals, the board seals the machines. Paper ballots, including absentee ballots, are then counted and tallied. Counted ballots are placed in a bag and sealed. Ballots that bear distinguishing marks or are mutilated or do not clearly reveal the voter‘s choice are not counted. These rejected ballots are sealed in a separate bag. Both bags are preserved for six months and may not be opened except in the case of a recount.18
If a recount is conducted in any county, the voting machine tallies are checked and the sealed bags containing the paper ballots are opened. The recount commission may make new and independent determinations as to which ballots shall be counted. In other words, it may reject ballots initially counted and count ballots initially rejected. Disputes within the commission are settled by a majority vote. When the commission finishes its task it seals the ballots it counted in one bag, and the ballots it rejected in another. Once the recount is completed, all previous returns are superseded.19
The District Court held these procedures to be contrary to the Constitution in two ways. First, the court found that in making judgments as to which ballots to
We cannot agree with the District Court on either ground.20 Unless Congress acts,
Indiana has found, along with many other States, that one procedure necessary to guard against irregularity and error in the tabulation of votes is the availability of a recount. Despite the fact that a certificate of election may be issued to the leading candidate within 30 days after the election, the results are not final if a candidate‘s option to compel a recount is exercised.22 A recount is an integral part of the Indiana electoral process and is within the ambit of the broad powers delegated to the States by
It is true that a State‘s verification of the accuracy of election results pursuant to its
It would be no more than speculation to assume that the Indiana recount procedure would impair such an independent evaluation by the Senate. The District Court‘s holding was based on a finding that a recount would increase the probability of election fraud and accidental destruction of ballots. But there is no reason to suppose that a court-appointed recount commission would be less honest or conscientious in the performance of its duties than the precinct election boards that initially counted the ballots.
For the reasons expressed, we conclude that
It is so ordered.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs, dissenting in part.
While I agree with the Court that the cases are not moot and that the three-judge court was not barred by
Thus, in the Iowa senatorial campaign of 1924, Smith Brookhart was the apparent winner over Daniel Steck, who filed with the Senate the complaint that illegal votes had been cast for his opponent. The petition was referred to the Subcommittee on Privileges and Elections which was authorized to make a full investigation. It heard testimony and recounted the ballots in Washington. The committee and eventually the Senate agreed that, contrary to earlier assumptions, Steck had won. Accordingly, Brookhart was replaced by Steck as a Senator from Iowa. See Steck v. Brookhart, Senate Election, Expulsion and Censure Cases from 1789 to 1960, S. Doc. No. 71, 87th Cong., 2d Sess., 116-117 (1962). See also Hurley v. Chavez, id., at 151 (upon re-
The Senate‘s procedure is flexible:
“The Senate has never perfected specific rules for challenging the right of a claimant to serve, inasmuch as each case presents different facts. The practice has been to consider and act upon each case on its own merits, although some general principles have been evolved from the precedents established.
“This practice of viewing each case affecting claims to membership on its individual merits has resulted in a variety of means by which the cases are originated. The Senator-elect to a seat in the Senate generally appears with his credentials. On some occasions, when these credentials are presented, some Senators will submit a motion that the credentials be referred to the Committee on Rules and Administration, and that, pending report, he be denied the privilege of taking the oath of office. Upon adoption of such a motion, the Senator-elect steps aside and the Senate seat is vacant for the time being. Any question or motion arising or made upon the presentation of such credentials is privileged and would be governed by a majority vote.
“On other occasions, the Senator-elect is permitted to take the oath of office, and this is now regarded and
followed as the proper procedure, but thereafter inquiry as to his election is undertaken by the Senate. Resolutions calling for such investigations may be offered by any Senator. In an instance where a newspaper charged a Senator had obtained his office by illegal means, the Senator himself offered a resolution calling for an investigation of the charges.
“The usual origin of such cases, however, is by petition. The contestant may file such a petition, protesting the seating of the contestee, and asserting his own right to the seat in question. It is not required to be filed prior to the swearing-in of the contestee, and no rights are lost if filed afterwards. In some cases, petitions have been signed and filed by others than the contestant, simply protesting against the seating of the contestee, without asserting any claim in behalf of the defeated candidate. Any number of citizens may submit such a petition; and it might make charges of illegal practices in the election, or of the improper use of money, or even of the unfitness of the claimant to serve in the United States Senate.
“A petition of contest is addressed to the U. S. Senate, and may be laid before the Senate by the presiding officer or formally presented by some Senator. There is no prescribed form for such a petition. It is somewhat analogous to a complaint filed in a lawsuit. It customarily sets forth the grounds or charges upon which the contest is based, and in support of which proof is expected to be adduced. The petition is usually referred to the Committee on Rules and Administration, which has jurisdiction over ‘. . . matters relating to the election of the President, Vice President, or Members of Congress; corrupt practices; contested elections; credentials and qualifications; [and] Federal elections generally . . . .’
“The Legislative Reorganization Act of 1946 empowers each standing committee of the Senate, including any subcommittee of any such committee, to hold such hearings, to sit and act at such times and places during the sessions, recesses, and adjourned periods of the Senate, to require by subpena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents, to take such testimony and to make such expenditures (not in excess of $10,000 for each committee during any Congress) as it deems advisable. Each such committee may make investigations into any matter within its jurisdiction and may report such hearings as may be had by it.” S. Doc. No. 71, 87th Cong., 2d Sess., vii-viii (1962).
The parties before the Court are apparently in agreement that, as is true of several other arenas of public decisionmaking, there has been a “textually demonstrable constitutional commitment” (Baker v. Carr, 369 U. S. 186, 217; Powell v. McCormack, 395 U. S. 486, 518-549) to the Senate of the decision whether Hartke or Roudebush received more lawful votes. Our case law agrees. Both Barry v. Cunningham, 279 U. S. 597, and Reed v. County Comm‘rs, 277 U. S. 376, were generated during the disputed 1926 senatorial election in Pennsylvania in which William Vare appeared to have defeated William Wilson. In 1926 a Senate committee was authorized to inquire into the means used to influence the nomination of candidates in that election. The committee asked some local county commissioners to produce certain ballots but were refused, whereupon members of the committee sought a federal court order compelling the ballots’ production. On appeal, this Court held that because the Senate had been fully competent to use its own subpoena power to secure the ballots, the District Court had lacked jurisdiction to act only at
“The resolutions are to be construed having regard to the power possessed and customarily exerted by the Senate. It is the judge of the elections, returns and qualifications of its members. Art. I, § 5. It is fully empowered, and may determine such matters without the aid of the House of Representatives or the Executive or Judicial Department. That power carries with it authority to take such steps as may be appropriate and necessary to secure information upon which to decide concerning elections.” 277 U. S., at 388.
In Barry v. Cunningham, supra, the Court upheld the Senate‘s power under
“It is enough to say . . . that upon the face of the returns [Vare] had been elected and had received a certificate from the Governor of the state to that effect. Upon these returns and with this certificate, he presented himself to the Senate, claiming all the rights of membership. Thereby, the jurisdiction of the Senate to determine the rightfulness of the claim was invoked and its power to adjudicate such right immediately attached by virtue of § 5 of Article I of the Constitution.” Barry v. Cunningham, supra, at 614.
And Cunningham holds that, “The Senate, having sole authority under the Constitution to judge of the elections, returns and qualifications of its members, may exer-
Once certification by the Governor has been presented to the Senate, a State may not by conducting a recount alter the outcome of the election—a principle that has been widely recognized by state courts. See Laxalt v. Cannon, 80 Nev. 588, 397 P. 2d 466, and cases cited therein.
Thus, although the Houses of Congress may not engraft qualifications for membership beyond those already contained in Art. I, Powell v. McCormack, 395 U. S. 486, where all that is at stake is a determination of which candidates attracted the greater number of lawful ballots, each has supreme authority to resolve such controversies.1
Although all agree that in the end the Senate will be the final judge of this seating contest, the nub of the instant case comes down to opposing positions on how important it may be to preserve for the Senate the opportunity to ground its choice in unimpeachable evidence. It is with regard to this phase of the cases that I disagree with the majority.
The Senate may conclude that only a recomputation supervised by it under laboratory conditions could serve as an acceptable guide for decision. Such a recomputation, however, will not be possible once local investigators have exposed these presently sealed ballots to human judgment.
Charges or suspicions of inadvertent or intentional alteration, however baseless, will infect the case. No longer will the constitutionally designated tribunal be able to bottom its result on unassailed evidence. Since even a slight adjustment in the tally could dramatically reverse the outcome, the federal interest in preserving the integrity of the evidence is manifest.
What the Senate should do in the merits is not a justiciable controversy. The role of the courts is to protect the Senate‘s exclusive jurisdiction over the subject matter, as did this Court in Barry v. Cunningham, supra. The Senate‘s Subcommittee on Privileges and Elections, for example, might subpoena these ballots, thereby precluding, as a practical matter, any local recount. Or the Senate might ask for a local recount. Either course is within the control and discretion of the Senate and is unreviewable by the courts. The District Court had jurisdiction only to protect the Senate‘s choice,2 not to make the choice for or on behalf of the Senate.
I would affirm the judgment of the District Court.