Means of Ascent (71 page)

But, most important, there were the voters—or, to be more precise, the alleged voters. On that day, Wednesday, September 22, 1948, for the first time in a court of law testimony was given under oath about whether those two hundred votes, the votes beginning with the number 842, that had given Lyndon Johnson his victory had actually been cast for Lyndon Johnson—or, indeed, for any candidate. And if the oratory of Johnson’s lawyers and supporters had
beclouded this issue for three weeks, the terse answers of these witnesses cleared the air.

There was
Hector Cerda, the student at Texas A & I who was listed on the poll list as Voter Number 920.

“Where were you on August 28th, 1948?” Groce asked. “At Pharr,” Cerda replied.

There was
Louis Salinas, listed as Voter Number 911. “Did you vote in the August 28th primary this year?” “No.” There was
Juan R. Martinez, listed as Voter 891. “State whether or not you voted in the August primary, on August 28th?” “No.” There was
Olivera Herrerra, listed as Voter Number 881. “I did not vote.”

There was an affidavit from
Eugenio Soliz, Voter Number 841, stating that he had arrived at Precinct 13 at about six-forty, that “there was no one else coming up to vote,” and that he believed he was the last person to have actually voted. And now one of the witnesses was
Enriqueta Acero, listed as Voter 842, which would have made her the voter after Soliz, and she testified that
she
had not voted.
¹

There was further testimony. During the previous three weeks of controversy, ever since the 965 Johnson votes in Precinct 13 had been reported, Johnson and his partisans had continuously argued that the Johnson vote in Precinct 13 had always been 965, that it had never been changed, that no one had ever said it was 765—that the election judge, Luis Salas, had reported it as 965 on Election Night, and that the report had simply been garbled in transmission to the
Election Bureau. Now there was a surprise witness. “Call
Charles Wesley Price,” the court attendant said, and Johnson’s attorneys looked around to see who he was. Price, a twenty-five-year-old resident of Alice, testified that he had been present at the offices of the
Alice News
at about eight o’clock on the night of August 28. At that time, Price said, “
Luis
Salas … brought the returns in from Precinct 13” so that a
News
reporter,
Cliff DuBose, could telephone
them in to the Election Bureau. Did you hear Salas say what the Precinct 13 vote was? Groce asked. Yes, Price replied. And what was the vote Salas reported? Allred jumped to his feet (“Clearly hearsay”), and Davidson upheld the objection, but it was obvious what Price was going to
say—and would say, if the investigation continued, and testimony was allowed on this point. The truth or falseness of Johnson’s claim that Salas had originally reported 965 votes for him could be determined, because Price—and DuBose as well—had heard the original report.

And there were witnesses not only from Jim Wells County but from Zapata County, whose revised final vote had been 669 for Johnson to 71 for Stevenson, and these witnesses testified that in Zapata, too, votes had been added for Johnson. As for Duval County, if Davidson agreed to hear the case on its merits, evidence would be available from that county, too, Moody promised (although Moody was also to point out that returns of 4,622 to 40—more than
100–1—might be considered fraud “
upon their face”). “
Sufficient illegal votes have already been proved in this hearing to have changed the result” of the primary, Moody said, and there were many other counties, too, whose returns “
are loaded with fraudulent votes.” Lyndon Johnson had not really won the primary, Moody said; his alleged victory was composed of thousands of
“votes” that had never been cast.

When Davidson had ruled that the witnesses would be heard, Lyndon Johnson’s self-assurance had visibly begun to drain away. His wife, despite her jaunty hat, was, an observer wrote, “
even glummer than he was.” During the testimony, Johnson kept darting hasty glances at Stevenson; Stevenson never looked his way. During recess, Stevenson, returning from the bathroom, encountered Johnson in the corridor outside the courtroom.
“Howdy,” Johnson said, assaying friendliness. Stevenson returned the greeting by briefly raising his hand; he did not reply.

And while the witnesses’ words cut through Lyndon Johnson’s arguments, there were also words that day from the judge—which cut deeper.

Davidson’s ruling on the case contained at least a touch of indignation about Johnson’s conduct in it.

If Stevenson’s “
allegations be true, then the complainant has been wronged,” Davidson said. “He has had a seat in the Senate of the United States taken away from him.… [If] enough ballots were
stuffed to have changed the result … manifestly, that is a wrong.” And Johnson had presented not “
one word of evidence” to refute
Stevenson’s charges. Indeed, not only had he refused to present evidence himself, he had effectively prevented anyone else from presenting it—or even from obtaining it—by securing that earlier injunction in a state court. Coke Stevenson had been entitled to see the poll and tally lists, the judge said, to determine
the truth about the change in Jim Wells’ vote. “
It was the right and privilege of anyone
interested in the vote to try to inform himself about that change which came quite late.” Lyndon Johnson had prevented Stevenson from doing so, with that earlier injunction. “The effect of that was to … prevent the new county chairman and … Coke Stevenson … from making an examination [of the lists].” They had finally managed to obtain a glimpse of the lists but they had been stopped from making a
copy—“They haven’t been allowed to do so … yet.” The very fact that the lists had been concealed made it more likely that a wrong had been committed, he said. The concealing of the lists “
throws such a cloud on the fairness of the election that we think it should be gone into, and that the parties concealing this information must have been conscious of the fact that it would probably change the result of the
election.”

Then Davidson moved beyond the narrow specifics of the case to discuss what he felt were more basic issues. And when he did, the words he spoke were words Coke Stevenson had been waiting to hear for a long time. Because the terms in which Judge Davidson discussed the case were terms that lifted law above legalisms. As he spoke in his soft, calm voice, the shouting and the vocabulary of politics that had clouded the case seemed at last to fade away—to be replaced
by what Davidson considered the issues of justice, of equity, of
right
, that the law was supposed to signify.

Lyndon Johnson’s contention, the judge said, was that, whether or not Coke Stevenson had been wronged, the law was powerless to right that wrong. And with that contention, the judge said, he did not agree. “
A sound principle of justice,” he said, is “that there must never arise a wrong for which there is not a tribunal wherein there is a remedy. That is in fact the
spirit of equity that has come down to
us through the ages.” The defendant, Lyndon Johnson, “admits there is no remedy. His counsel says, ‘What can you do about it. We have no remedy [in law].’ ” That is why the plaintiff is here—in this court. And “here we are admitting that he has been wronged and laughing at him in his face, as it were, because he has no right.… Even if there was no statute on the books, this man would still have an equitable hearing in the
court. He comes to a United States court, complaining that he has been deprived of a right.… And it is admitted by both parties that a right to determine that nomination exists nowhere if not in this court.”

Of course the case fell under the federal civil rights statute, Davidson said. “
Whenever I steal, whenever I misappropriate, whenever I stuff a ballot box, we are taking from a man that which is his. We are not only taking from him that which is his, but we are depriving other voters of their right to choose, by offsetting the vote they cast.” And he was going to find out the facts in the case. “In cases of fraud,” the
judge said, “the
rule is—throw open the doors and let the light in.” Therefore, he said, he was continuing the injunction that kept Johnson’s name off the ballot. And, he said, he was going to institute an investigation to determine if Johnson’s name belonged there at all. The court “would like to see further the facts concerning Box 13 in Jim Wells County, also Duval County and Zapata County.” He was therefore
appointing Masters in Chancery, special officers of the court with full power to subpoena witnesses and evidence, to hold hearings in the three counties and submit written reports to him by October 2, the day before the deadline for placing names on the ballot. After seeing these reports, he would rule on whether the injunction should be made permanent. And the judge added a final note which Lyndon Johnson may, if possible, have found even less cheering than those which had preceded
it. A trial might be necessary to determine if the injunction should be made permanent, the judge said. The Masters’ “investigation is
a preparation for trial.” The trial would be on “the issue of fraud. If this fails of proof, then Lyndon Johnson is the United States Senatorial nominee, and he will move into the position with a clean bill of health. If he does not …” At this point, as one reporter wrote:
“The judge paused, as if searching for words, then he spread his hands and shrugged.”

Johnson’s attorneys repeated their now familiar argument that there had been fraud in many counties besides the three Stevenson was naming. “
We are unwilling to try an election on the Jim Wells County vote,” Cofer said. “There are other counties we would like investigated if there were time”—Brown County, for example, and Galveston and possibly Dallas. But Davidson called their bluff. “
I will be glad to appoint Masters to investigate any counties” you name, the judge said. Allred declined the offer. “We’re
not in a position to give time to this thing in the next few days,” he said. He said that the time of Johnson’s attorneys would be taken up perfecting an appeal to a higher court. Davidson agreed to facilitate matters by granting a severance, a legal device allowing Johnson’s attorneys to proceed
with the appeal while the investigation was going forward. But, the judge emphasized, it
was
going forward: “The case on the facts
will proceed.”

L
YNDON
J
OHNSON
had worn another wide, brightly colored necktie to court that day, but by the time the judge had finished speaking, the face above the gay floral pattern was the face of a man confronted by the imminent death of his hopes and dreams. Beside him, Lady Bird seemed stunned. For weeks now, in court and convention, he had been fighting to have his name placed on the ballot as the Democratic nominee for
Senator. But now, on September 22, the Democratic line was still blank;
Texas election officials had already sent to the state printers the sample ballot from which individual counties would print up their ballots, and this was a sample ballot, as the Associated Press put it, “
unique in Texas political history because it includes no Democratic nominee for U.S. Senator.” The Republican nominee,
Jack Porter, was
listed; the space for the Democratic nominee was empty. October 3 was the legal deadline for placing a name on the final ballots that would be used by voters on Election Day. If Johnson’s name wasn’t on the ballot by October 3, it would never be on it. Since Davidson had ordered his Masters in Chancery to report to him by October 2, theoretically the judge would be able to dissolve the injunction in time for a candidate’s name to be included. But realistically
this was little comfort to the Johnson camp now that they had heard the witnesses, for should the Masters’ investigation confirm their testimony, it seemed all too likely that if Davidson did order a name to be placed on the Democratic line, the name would not be Johnson’s. Ever since the additional votes from Precinct 13 had been reported on September 3, banner headlines in Texas newspapers had linked Johnson’s name with victory, as he won in the Election Bureau
tabulation, won in state court, won in the Democratic Convention. Now, in the headlines announcing Davidson’s decision, it was no longer “
JOHNSON WINS
.” It was
“JOHNSON LOSES COURT FIGHT”
and
“JOHNSON LOSES COURT DISMISSAL PLEA”—“JOHNSON LOSES.”
And it was “
COKE WINS PLEA TO BAR JOHNSON”
and
“STEVENSON WINS RULING BY U.S. COURT”—“STEVENSON WINS
.” In the opinion of many men in both camps, the headlines were an accurate summary of the situation. Recalls
Ernest Boyett: “
When Davidson handed down his ruling, we thought we had won.”

M
EETING THAT EVENING
with his ten attorneys (now, in this emergency, supplemented by others) in a large conference room at the Texas Hotel, Lyndon Johnson was confronting, in what the
Austin American-Statesman
called “
the greatest political controversy of all time in Texas,” a legal situation so unprecedented and so tangled—and with so wide a range of possible
outcomes—that, as the Associated Press reported, “
In the midst of the confusion and present uncertainty … the best legal sources were unwilling to comment on what might happen.” As one historian was to write: “Since there was
no parallel or precedent even in the politically bizarre state of Texas, no one knew what would happen in the Senate race” if, by October 3, Davidson had not permitted
Johnson’s name to be added to the ballot. And the longer Johnson’s attorneys discussed the crisis, the more daunting it appeared. For what, after all, were his options? A write-in campaign? That was an unattractive alternative. He might lose such a campaign to Stevenson. Moreover, far fewer voters would take the
trouble to turn out on Election Day and write in a candidate’s name than would vote for a name on the ballot. If Stevenson was also
not on the ballot, the overall Democratic vote would be much smaller than usual, and Johnson would be dividing that write-in vote with Stevenson; even if he should defeat Stevenson, there was no certainty that in these circumstances he could defeat the Republican candidate.