The opinion
STEVENS, Circuit Judge
(dissenting).
Regardless of whether or not we agree with the Indiana trial court’s construction of Indiana law (and we should not substitute our interpretation of state law for his), we still must decide whether a federal court should enjoin a recount of votes cast for the office of United States Senator pursuant to state election laws. No federal court has ever done so before.
In my opinion the temporary restraining order was improvidently entered on December 3, 1970, and should be vacated. At that time the recount was not scheduled to commence until December 8, 1970. No explanation has been advanced for the failure to seek review in the Indiana Supreme Court, including a stay of the recount if needed to give that Court adequate time to consider all issues, both state and federal, subject to further review, if necessary, by the United States Supreme Court. See United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970). Nor has there been any suggestion that the Indiana judiciary is not perfectly capable of handling Indiana litigation without assistance or interference from a federal district court. I think this court is prohibited from enjoining the recount by the plain language of 28 U.S.C. § 2283 , and Supreme Court opinions articulating the policy underlying that statute. 1 Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281 , 90 S.Ct. 1739 , 26 L.Ed.2d 234 ; Amalgamated Clothing Workers v. Richmond Bros. Co., 348 U.S. 511 , 75 S.Ct. 452 , 99 L.Ed. 600 .
Plaintiff asserts that an injunction should be granted to protect him from a deprivation of his constitutional right to have the United States Senate act as the sole judge of the Indiana election returns. U. S. Const. Art. I, Section 5. But the proof which he offered does not establish any threatened deprivation of that right. In my opinion the exercise of “judgment” by state election officials at various stages of the counting and recounting of ballots does not invade the Senate’s power to make the final judgment on the outcome. The evidence establishes without contradiction that the Indiana recount procedures have integrity, that the original ballots and other records are carefully preserved for future study, that an adequate record of what transpires during a recount is maintained, and that any judgment as to whether or not certain categories of ballots (or even individual ballots) should be counted, may be reviewed subsequently by the body having the power finally to resolve an election contest.
Plaintiff has failed to prove that he would suffer irreparable harm if the recount were permitted to proceed. Indeed, it is entirely possible that the recount would show that a Senate contest would be futile, and thereby avoid a protracted controversy which may now be required. Moreover, as a practical matter, I would assume that the work of the Senate would be facilitated, rather than impaired, by the availability of a fairly conducted recount, in addition to *1379 the original count, before undertaking its work. 2
I would vacate the temporary restraining order and dismiss the complaint.
. I also think it was improper to enter the temporary restraining order without notice five days before the recount was scheduled to commence. In my opinion notice to the opposite party should always be required absent a compelling showing of need and a convincing explanation for the failure to give notice.
. We have not been advised about the Senate procedures for resolving election contests. It is of some interest that the House of Representatives “generally follows State law and the rulings of State courts in resolving election contests, * * *” See H.R.Rep. No. 513, 87th Cong., 1st Sess. 42 (1961). It would seem likely that the Senate would also rely on state practice. Indeed, I would expect the recount procedure, in contrast to making the final judgment in a contest, to be treated as part of the “Manner of holding Elections”. See U.S.Const. Art. I, Sec. 4.