Means of Ascent (74 page)

T
HE SAME PATTERN
of disappearing evidence was unfolding in Duval County as well—in Duval, where thousands of votes were at issue. Only eight of the fifty Duval election judges and clerks subpoenaed had been found, but as George Parr sat listening to their testimony, he may have felt that even eight was too many. For their testimony reinforced the widespread belief that in his county “they didn’t vote ’em, they just
counted ’em.”

One of the eight was the presiding election judge at Precinct 6,
Ernesto Benavides. He testified that after the polls closed on Primary Day, he made the required three copies of the poll and tally lists, placed two of them in the locked ballot box and left one, his own, at the schoolhouse at which the voting had been held. And where is your own copy now, he was asked. “I do not know,” he said. When he had returned to the school four or
five days later to look for it, “it was lost.”

Burnett, the Federal Master, interrupted—quite sharply—to take over the questioning himself. Were the ballots from your precinct actually counted and included in the official total from the county? the Master asked. At first, Benavides replied, “I don’t know.” Then he hesitated. In front of him, in the crowded little courtroom, George Parr sat waiting to hear his answer. “Oh, yes, the votes from Precinct 6
were counted,” Benavides said.

How was that possible? the Master demanded. You testified that the results had been given to
Campbell King at the Courthouse that evening. “How did the county chairman obtain the returns from your box if you left a list at the school and the other two were in the locked box?”

“I do not know,” Benavides replied.

Stevenson’s lawyers believed a similar situation had existed at most of the other ten Duval precincts. During the three weeks since Coke’s trip to Alice, they had found a surprisingly large number of men and women in the Valley willing to brave George Parr’s wrath, and they had affidavits which they felt proved that few if any of the ten precincts had so much as bothered to file returns with county officials. Parr and his boys had simply written
down any numbers they pleased, giving Johnson whatever totals the candidate or his aides said were needed: that was the explanation for the hundred-to-one majority; only the lack of sufficient poll tax receipts had stopped Parr from giving Johnson even more votes.

In Zapata County, there was a change in the wording of the script. Instead of the word “lost,” synonyms were employed: “
gone,” for example, and “
missing.” There was, however, no change in the basic plot.

The key precinct in Zapata was Number 3, where the late correction six days after the primary had given Johnson forty-five crucial additional votes. The records from all four of the county’s precincts, contained in four large manila envelopes, had been given to the County Judge,
Manuel Bravo, by the county Democratic chairman,
Josefa Gutirez, in Bravo’s office. Mrs. Gutirez testified that when she—and the
records—were subpoenaed by the Federal Master, she had gone to Judge Bravo’s office to get the records back and bring them to the hearing. Judge Bravo had thereupon given her envelopes—three envelopes. They were from Precincts I, 2 and 4. “I put four in and there were only three,” Mrs. Gutirez said. “I don’t know what happened to the other.… I didn’t even know it was missing.” Called to the stand, Judge Bravo said
he didn’t know, either. He had put four in his filing cabinet, he said, but when he went to get them, there were only three. “Number 3 was gone.” Its “returns were missing.”

Nonetheless, the two Masters did not let the missing witnesses and evidence stop their investigation. In the Jim Wells County Courthouse, for example, Stevenson attorney
Josh Groce, after hearing Salas testify
that the first two copies of the crucial poll list had been lost, told Smith, “Sir, I would like to suggest that there is one other copy of this poll list that is available. That is the one in the ballot box; and I
would think that Your Honor, under the order of this court, would have the right to bring that ballot box into this court here, open the ballot box and take out only the poll list … and we request the commissioner [Master] so to do.”

Johnson’s lawyers leaped to their feet, Looney protesting that only “
an express order of the District Court” could authorize the opening of a ballot box, Tarleton, his shock of shaggy white hair awry as he stamped around the courtroom, his arms extended upward as if to call the heavens to witness this contemplated injustice, invoking broader grounds: for a federal official to open a state ballot box, he shouted, would be a return
to “
the evil days of Reconstruction.… There is still the doctrine of states’ rights.… Those ballot boxes … are secure in their sanctity under the law of this state and are not the subject of invasion by outside authority.” But Smith was firm. “
I have the power to order the United States Marshal to impound those ballot boxes, and the Marshal is so ordered,” he said. Writing out
the order, Smith handed it to Marshal Ainsworth, who served it on the County Clerk in his office down the corridor, and before the close of court Monday, twenty ballot boxes that had been used in the county’s seventeen precincts had been carried in by janitors and piled up in front of Smith’s bench. Some of the cylindrical, rather battered tin drums with removable tops (voters had placed their ballots in the drums through slits in the covers) were labeled with precinct
numbers, some were not. Some of the drums were padlocked, some were padlocked but with keys dangling from the padlocks, some were unlocked. Presumably the twenty included the box or boxes from Precinct 13. Coke Stevenson, sitting motionless at a counsel table, may have felt that there in front of him, not five feet away, was the evidence he had sought for so long. One of Lyndon Johnson’s allies had said it was Johnson’s “major purpose … not
to permit the opening of Box 13.” Now a Federal Master had ordered Box 13 to be brought into court, and it was in the custody of a United States Marshal—ready to be opened. Whatever the condition of those tin drums—locked or unlocked, labeled or unlabeled—one of them either would or would not contain that last copy of Precinct 13’s poll list. If the list was found, proving the legality or illegality of the two hundred decisive votes would be swift
and relatively easy. If the list was not found, such proof would be difficult, but, in the opinion of the Master on whose report Judge Davidson would base his decision on making the injunction permanent, the mere fact that all copies of the list had disappeared would be highly significant. Monday had been a day of applause for Lyndon Johnson. There would be no applause on Tuesday. No crowd noise would obscure the rap of the gavels. The campaign would have
narrowed
to that race in court. On that Tuesday, in Alice, Texas, a Federal Master would begin opening the ballot boxes that were the heart of the investigation into Lyndon Johnson’s senatorial campaign. On that same day, in Washington, D.C., Justice Black would be deciding whether to halt that investigation or to allow it to continue.

T
HE STARTING TIME
in both Washington and Alice on Tuesday was nine-thirty in the morning, but, because of the different time zones, the hearing in Washington began an hour earlier. So close was the race that that sixty minutes’ lead might make the difference. Filing into Hugo Black’s walnut-paneled, book-lined chambers in the Supreme Court Building Tuesday morning was Lyndon Johnson’s first team: Wirtz, Allred and four
prominent New Dealers—Fortas,
Thurman Arnold,
Paul A. Porter and
Hugh Cox. Appearing alone for Stevenson was
Dan Moody, who had disdained the help of younger attorneys; the civil rights issue—the key issue that authorized federal jurisdiction, in the opinion of the young lawyers assisting Stevenson—was never raised. Sitting in a semicircle around the Justice’s desk, as Black
rocked in his swivel chair, the attorneys presented essentially the same arguments they had been repeating for a month in lower courts. Moody said the issue was fraud, whether it had been committed on Lyndon Johnson’s behalf and whether Johnson should be allowed to benefit from it; in ordering the Masters’ hearing, Moody said, Judge Davidson had been attempting “
to prevent the reaping of a harvest from the perpetration of a fraud.”
Fortas said the issue was jurisdiction: election contests were “
irrevocably and incontestably vested” in Texas state law and should not be supervised by a federal court. Weighing in with an argument that had significant political connotations during a year in which the balance of power in the United States Senate might hinge on Texas, Wirtz warned that if Stevenson succeeded in keeping Johnson’s name off the ballot, “There will be no
name of a Democratic nominee. The Republican nominee … will be the only candidate on the ticket.”

Down in the Alice Courthouse, Parr had stationed a deputy sheriff next to the telephone in the County Judge’s office. Allred had been given the number of that phone, and told to call the instant Black announced a verdict, so that in case the verdict was favorable not a moment would be lost in stopping the Alice hearing. Parr had ordered the lines kept clear for a call from Washington.

All Tuesday morning, with the lawyers still arguing before Justice Black, the phone did not ring. But although Federal Master Smith had planned to open Ballot Box 13 as soon as he convened his hearing Tuesday morning, he was unable to do so, because the box first had to be identified—and the person called to the witness stand to identify it was Luis
Salas. Laughing and joking, to the appreciation of friends in the courtroom, Salas managed to
do a thorough job of sowing confusion about which of the twenty tin containers was Precinct 13’s. As Stevenson and his attorneys sat grimly watching, unable to speed the process, Salas said that the ballot box into which he had placed the poll and tally lists was not among the twenty that had been brought to court. (How he knew that was unclear, since he also said that he had placed no identifying mark of any kind on it.) Then he said that Precinct 13 had had not one but two
ballot boxes. Smith directed that Salas inspect the boxes. One by one—slowly—he looked them over and found for each one some reason why it was probably not from his Precinct 13. Finally he tentatively—very tentatively—identified two. Thanks to the delay he caused, although the arguments in Washington lasted for almost four hours, when they concluded—at a little after one p.m. Washington time—and Black announced he would retire to consider his
verdict, down in Alice none of the twenty boxes had been opened. At about the time that Black retired, Smith announced a recess for lunch. The outcome of the race—between Black’s decision and the opening of Ballot Box 13—was still in doubt.

During that lunch recess, Salas was informed that the two men who had actually marked the ballots would be put on the stand. If they were, Salas was to recall, he was sure “they would be indicted.” He told Ed Lloyd: “This investigation going bad for us, Ed.” If the two men were in legal danger, he said, “I am going to tell the truth.”

“Don’t say anything yet,” Lloyd replied in panic. “Hold your horses.”

After lunch, Salas returned to the stand, but none of the boxes had yet been opened when, on Tuesday afternoon, a clerk summoned Dan Moody and Johnson’s sextet of lawyers to Black’s chambers. The Justice, he said, was ready to announce his verdict.

Black agreed with Fortas. “It would be a drastic break with the past, which I can’t believe Congress ever intended to permit, for a federal judge to go into the business of conducting what is to every intent and purpose a contest of an election in the state,” he said. The issue, he said, in an obvious reference to the balance of power in the Senate, is of “supreme public importance. Not only are the parties interested, but the whole State of
Texas and beyond the state.” Black disagreed with Moody’s contention that Stevenson had no other recourse but the federal courts. “What about the Senate?” he asked. “The Senate is the judge of the qualification of its own members, finally.” While, he said, “fraud, very reprehensible fraud” had been charged, fraud was a criminal charge “punishable as crime if the charges are sustained.” Therefore, he said, “I
am going to grant a stay until the full Supreme Court has an opportunity to consider it.” Under the procedure in such hearings, Johnson’s attorneys had to
draft the order granting the stay. Instructing them to do so, Black said he would sign the order on Wednesday.

Trotting, almost running out of Black’s chambers, Allred telephoned Alice and San Diego to notify Parr’s men of the verdict, and within minutes Smith recessed his hearing while he went into the County Judge’s office and telephoned Judge Davidson in Fort Worth to ask for instructions.

Reporters had told Davidson of the verdict, but they did not know precisely what Black had ruled, and the District Court Judge had received no official notification. He did “not yet know the scope of Justice Black’s action,” Davidson told Smith, but if it merely stayed the injunction, the Masters’ hearings, “being more in the nature of a trial on the merits, would have nothing to do with the injunctive matter.” Informed that
Black’s order was not yet drafted, and that Black would not sign it until the following day, Davidson instructed Smith to proceed with his hearing. Returning to the courtroom, Smith did so—over the furious protests of Johnson’s attorneys. And when, a few minutes later, Salas finally completed his identification of the ballot boxes, the Master said: “The court is going to open the ballot boxes.”

Jumping to their feet again and rushing to the bench, shouting at Smith, Johnson’s lawyers stalled almost frantically to keep the boxes closed, Tarleton repeating his arguments that opening them would violate state laws and statutes, Looney saying, “if the practice permits, and I think it does … we should like time” to appeal directly to Judge Davidson for a ruling about the opening of the ballot boxes. But Smith said: “I
have made my ruling.” He had been appointed to find out the truth about Precinct 13, he said. That required the poll and tally lists, and two of the three copies of those lists had been lost. “There is nothing left for me to do but to look to the third place where they are supposed to be, and, if they are there, to examine them.” Tarleton shouted that because of Salas’ testimony, no one could even be sure which of the twenty boxes were Precinct
13’s. Smith admitted that the attorney was correct, but added that “if they [the two boxes Salas had identified] are not [Precinct 13’s] then I am going to open the rest of them.” He slammed down his gavel. In a voice that reporters called “stern,” he said: “
We will open all the boxes if necessary.” The covers of the two tin drums identified by Salas were secured not by locks but by baling wire twisted through
the padlock hasps. Smith had Marshal Ainsworth bring him a heavy pliers. With them, he untwisted the wire of the two drums, and then he took off their covers.