(dissenting).
I dissent. The majority opinion calls for an exercise in futility.
How in the world can anyone argue that the questions “who won the election?” and “who will be seated?” are mutually exclusive. It is purely an appeal to the provincial and quixotic.
In adopting Thorsness’ argument, the majority scrupulously ignores several salient factors. Thorsness argues that Article I, § 4, of the United States Constitution vests in the state legislature the authority to determine “[t]he Times, Places and Manner of holding Elections” for congressional seats. The next section, Article I, § 5, is virtually ignored, but it provides in essential part: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members[.]” (emphasis supplied) Nowhere is it suggested that the accuracy of the returns, i. e., whether a ballot is or is not to be counted, is not in question.
Let us look at Roudebush v. Hartke, et al., 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), on which the majority so heavily relies.1 The United States Supreme Court clearly states that the question “who is entitled to be seated?” is a nonjusticiable political question. The Court then goes on to uphold the right of a candidate to exercise his right to a recount before court-appointed recount commissioners which his opponent had sought to enjoin. It is, first of all, noteworthy that the decision pointed out in detail the distinction between judicial and nonjudicial functions of the courts. Under Indiana statute there was no provision for judicial review, merely for court appointment of the recount commissioners, which the decision denominated a nonjudicial function. So, while assuring the candidate his right to recount board review, the Court in fact reiterated its previous holding in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), that the outcome of the election, being a political question, was not a justiciable question because of the separation of powers provided *171by the United States Constitution.2 Thorsness wants the five members of this court to reexamine for a second time the ballots that have been examined and reexamined. The principal contention as to almost every ballot is whether or not it bears an identifiable mark. These issues were presumably argued before the election boards and, beyond any question, were argued before the recount boards. Thorsness wants us to be the court of last guess. I have participated in enough election contests to know the futility of trying to determine whether a ballot was fatally marked by the voter or inadvertently by an election clerk or judge, or perhaps now by recount board members. Lacking some divinely inspired perception, ir can be no more than a guess, but it must be made under the guise of the judicial function of this court.
Another distinction that I consider important in Roudebush, supra, is that Hartke had been seated by the Senate conditionally pending the outcome of the recount and for that reason alone, the United States Supreme Court determined the question was not moot. Daschle, on the other hand, has been seated unconditionally as Thorsness admits. This necessarily implies that the question is now moot. What possible reason, then, is there for proceeding with the matter?
The general rules of mootness apply to the application for a writ of certiorari. 14 Am.Jur.2d Certiorari § 8; 14 C.J.S. Certio-rari §§ 12, 32. The actual controversy between Thorsness and Daschle ceased upon Daschle’s being seated in the House of Representatives. Nor does this fall within the public interest exception to the mootness rule.
The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions, (emphasis supplied) 5 Am.Jur.2d Appeal & Error § 768
What possible precedential value for future elections can be gleaned from a determination that Exhibit 4 from Swan Lake Township of Turner County or Exhibit 20 from Estelline Precinct of Hamlin County, or any of the other seventeen-hundred-plus exhibits, were in fact marked ballots or not? It is a fact question that will have to be determined exhibit by exhibit, case by case, so long as paper ballots are used.
In summation, I believe that the majority has embarked this court on a quest that will expend an extremely large amount of judicial time for no purpose, not unlike Don Quixote riding out to joust with windmills for the favor of the illusory Dulcinea. When the quest is over, whatever the outcome in this court, I am convinced that Daschle will still represent the First Congressional District in the United States Congress.
Finally, it should be noted that Thorsness is not without his right of further review of the recount results, for he can and has filed his contest with the House under the provisions of § 19 of Public Law 91-138 denominated the Federal Contested Elections Act, which is applicable to general elections for representatives in the Congress of the United States. This enactment is now codified as 2 U.S.C. §§ 381-396.
. I do not find “Contested Elections and Recounts,” Vol. 1, Federal Perspective Federal Election Commission, Washington, D.C., (1978) referred to in the majority opinion particularly enlightening. The product of one M.A., two Ph.D.s, only one J.D., and a staff of students not otherwise identified is hardly a learned legal treatise. When they say that Roudebush provides criteria for minimum state action to “adopt a complete code for congressional elections, including procedure and safeguards necessary to enforce the fundamental right involved,” they are reading far more into Roude-bush than I do. No wonder the volume is prefaced with the disclaimer: “Interpretations, opinions, and recommendations presented in this report are those of the authors, and do not necessarily represent the views of the Federal Election Commission.”
. Powell v. McCormack, 395 U.S. 486, 518, 89 S.Ct. 1944, 1962, 23 L.Ed.2d 491, 515 (1969).