US SUPREME COURT DECISIONS

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. 405 U. S. 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. 405 U. S. 20-23.

(a) That section does not restrict a federal court from enjoining a state court acting in a nonjudicial capacity. P. 405 U. S. 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. 405 U. S. 21-22. chanrobles.com-red

Page 405 U. S. 16

(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 member of the commission. P. 405 U. S. 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. 405 U. S. 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. 405 U. S. 26. POWELL and REHNQUIST, JJ. took no part in the consideration or decision of the cases.