Means of Ascent

by Robert A. Caro

  Having given him their expert and unanimous advice, the lawyers sat back, expecting him to accept it. Instead, in the words of Luther Jones, “Lyndon just hit the goddamned ceiling!” He was, Jones says, “truly angry.” Part of his anger was directed at the judge, whom he cursed violently and viciously. “Maybe his temper was short because this thing was a nerve-racking ordeal, and it looked like that judge was going to take it away from him,” Jones says. “He was outraged at this attempt to take his victory away from him.… It was just incredible that someone was doing this to him.” And part of his anger was directed at them, at his lawyers. “He was very indignant” at their suggestion that he compromise, Jones recalls. “He said he had won the election, and he was not going to temporize; he was a citizen, and he had rights and he insisted on their being followed, and he didn’t want to temporize one bit.”

  For almost two years, when they worked together in Washington, Jones had not only shared the same small office with Lyndon Johnson but had slept in the same small bedroom with him. But that had been fourteen years before. Powerful though Johnson’s personality had been then, Jones, who had seen him seldom in the intervening years, had never before witnessed what that personality had developed into with increased age, and with power, and with experience in command. Witnessing it now, he was awestruck. “Lawyers like to compromise. And the compromise that the judge had suggested here was that both go on the ballot, and the feeling was in that case he would win. The lawyers were suggesting that Lyndon accept that. And many men would have accepted that. But Lyndon was just angry. Red-faced anger. The wildest kind of anger. He was outraged at their suggestion and he told them so. This is a free country! I won it fair and square, and you want me to trade it away!’ ”

  There was not a trace of hesitation or diffidence in the way he spoke to “the best legal brains in the state,” Jones says. “Lyndon Johnson is a man of force and power, and, boy, he exhibited it all that day.”

  Under the force of that personality, all other considerations melted away. If other arguments were raised, Johnson dismissed them. He didn’t want any discussion, he said; the discussion was over. “He just said, ‘I instruct all of you to proceed accordingly.’ ” And, indeed, there was no further discussion. Lyndon Johnson got up from the conference table, towering over his attorneys, and strode out of the room. After court had reconvened that afternoon, and Moody had formally accepted, on Stevenson’s behalf, Davidson’s proposed compromise, Crooker read the statement the attorneys had drafted after Johnson had left the conference room (“I received a majority of the votes.… I have a legal right to the nomination.… To voluntarily barter away that right would be to stultify myself and result in a betrayal of the Democratic Party”). What one writer called “the fight to the political death in Judge Davidson’s courtroom” resumed.

  THE NEXT DAY was worse for Johnson—for the next day was the day of the witnesses.

  Johnson’s lawyers made a last, frantic attempt to keep them from being heard. John Cofer’s voice was shaking as he pleaded with Davidson, on personal and political grounds, to dissolve his restraining order without taking evidence; Stevenson’s suit was nothing but a delaying tactic, Cofer said, and the delay might keep the Democratic line on the senatorial ballot blank in November. “They would rather have a Republican elected than have Lyndon Johnson as United States Senator,” he shouted. Pointing at Lyndon and Lady Bird, he said such a result “would be doing a great wrong, a terrible wrong, to that young man there who has served so ably his people of the Tenth District. It would be doing a great wrong to that little woman there who has helped him bear the burden of his statesmanship.” But Moody pointed out that it was not Stevenson who had first taken the election results to a court, and thus begun the chain of events that were keeping the ballot blank. “It was the defendant Johnson himself who went to a District Judge in Travis County to restrain the new officers of the Jim Wells committee from trying to see if the returns from that county were correct,” he said, shouting as if he were on the stump again. “They didn’t want an investigation of the facts. The man who is right has nothing to fear and welcomes an investigation.” Stevenson was not planning to present all his witnesses at this hearing, Moody said, only enough to demonstrate conclusively to the court that evidence was available that would show fraud widespread enough to change the outcome of the election. Allred jumped to his feet to reply, and for a moment the two former Governors stood shouting at each other, but Davidson cut them both short with a sharp rap of his gavel. And then the judge told Moody: “You may proceed with the evidence.” At last, after three weeks of maneuvering, witnesses were going to begin to testify in public, under oath, about what had happened down there in the Valley.

  Only thirteen of them testified that day, but that was enough. The thirteen included Jim Wells Democratic officials H. L. Adams and B. M. Brownlee and, with Josh Groce questioning them, they both testified that George Parr’s men had concealed the crucial poll list, and that there had indeed been changes on that list at the decisive point. (“Q: Mr. Adams, did you notice any change in the ink at any particular point on that poll list? A: Yes, I did. Q: Where did that change appear? A: With the number 842.”) Groce introduced as evidence the list of names Adams had scribbled—and suddenly another aspect of the list was a matter of court record: “I call to Your Honor’s attention on this list copied from the poll list … that from 842 down [the names] run in alphabetical order.”

  And while Johnson’s attorneys had at least known that this particular evidence was coming, there was something new of which they had had no warning—and that came as a surprise to them. Groce had just asked James Gardner, one of the lawyers who had accompanied Stevenson and Frank Hamer to the bank, “Did you examine the poll list to see whether or not there was any changes?” Gardner said that he had, and that at the bank he had also gotten a look at a document no one else had seen, the certificate of the total vote—and that he had observed a change that no one else had mentioned: “The certificate showed that the vote for Lyndon Johnson was 965 but it was evident from looking at that 965 that the 9 had been changed. It previously had been a 7.”

  Three of Johnson’s attorneys leaped to their feet as one, objecting. “That calls for an opinion and conclusion of the witness, highly objectionable,” Allred shouted. Davidson upheld him, but when Groce reworded the question (“Just describe … what you did see”), Gardner said, “where it had been a 7 there had been an additional loop added to the 7 to make a 9 out of it,” and this time when the attorneys objected, Davidson said, “I will hear it [the testimony].” When they went on arguing, the judge said firmly, “The court has ruled,” and that crucial loop was a matter of record, too.

  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.

  Q: How far is that from Alice?

  A: Approximately 109 miles, I believe.

  Q: State whether or not you voted on that day?

  A: I did not vote.

  Q: You did not?

  A: I did not vote, no sir.

  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.”
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  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.”

  LYNDON JOHNSON 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.”