Means of Ascent

by Robert A. Caro

  Deciding whether to adopt his plan was not, Fortas was to say, “particularly difficult” on the “legal aspects” of the case. “What that [decision] mostly required was courage,” he says. “A man’s political life was at stake.” His suggestion, he was to recall, “was not a conventional course of action. Lawyers like to do things by the book—B comes after A—and here we are skipping right through to Z.” Moreover, the dangers involved in his plan were, he concedes, “tremendous.” By forgoing the chance to have the Circuit Court rule, Johnson would be gambling everything on Black. “You’re doing a one-shot instead,” Fortas was to say, and if you lose on that shot, “You lose everything.” But the “most brilliant legal mind ever to come out of the Yale Law School” had sliced its way through the other lawyers’ verbiage to the heart of the matter. “Skipping right through to Z” was the only possible way that Johnson’s name could appear on the ballot. So when Fortas had finished talking, there was dead silence. Not one of the previously voluble lawyers ventured so much as a comment. “Everyone was delighted to have me take the responsibility,” Fortas was to recall with a tight, sardonic smile. But Lyndon Johnson was a leader of men. The silence was broken by the voice—hard, flat and decisive—of the man whose “political life was at stake,” the man who would “lose everything” if Fortas’ gamble failed.

  “Let’s do what Abe says,” Lyndon Johnson said.

  Fortas asked for a secretary, and went into an adjoining room. In what seemed an astonishingly short time he had returned with a one- or two-page outline of a brief. “That’s all you need,” he said.

  THE NEXT DAY, they did what Abe had told them to do. Luther Jones translated Fortas’ draft into a formal brief. The man known as “the finest appellate lawyer” in Texas considered himself honored to be allowed to work on a brief outlined by Abe Fortas. Jones was, as one magazine put it, “the man with probably the finest technical knowledge in the state,” but he knew enough to know how his expertise compared with Fortas’. “It was a thing of beauty to watch the way he handled it,” Jones would say. “He listened to all of us for perhaps an hour, took all our work and got a secretary, and in ten minutes came back with a very brief proposition.… You see, a super-expert doesn’t need to beat around the bush. He knows exactly what needs to be done, and he does it.” Jones himself flew—in a Brown & Root plane—to New Orleans to file the brief with the clerk of the Fifth Circuit Court of Appeals. Analyzing previous rulings by the court’s six judges, a group of attorneys assembled by Tommy Corcoran in Washington found, in Judge Joseph C. Hutcheson of Houston, a jurist whose record strongly suggested an almost out-of-hand rejection of Johnson’s plea; Hutcheson had once held, in fact, that a stay of a lower court injunction required the concurrence of at least three Circuit Court judges. In line with Fortas’ strategy, therefore, it was to Hutcheson that Johnson’s attorneys applied for a stay of Judge Davidson’s injunction, and Hutcheson agreed to hear the application.

  And in the event, the court fight unfolded precisely as Abe Fortas had predicted it would. At the conclusion of a four-hour hearing in his chambers in the federal Courthouse in Houston on Friday, September 24, Judge Hutcheson caused consternation in the Johnson camp by announcing that he would take the case under advisement. But the advisement lasted only five hours—for Lyndon Johnson, of course, five terrible hours of waiting: what if the judge delayed his decision too long? Summoning the attorneys back to his chambers that same evening, however, Hutcheson handed down his decision—the decision Fortas had forecast. Had Johnson’s attorneys asked “that something affirmative be done,” the matter would be more complicated, Hutcheson said, but “if you merely ask that” the injunction be stayed, “I can’t do it. I am only one individual. I can’t act independently” of the entire court in overruling another judge. “It is quite clear that I, as a single circuit judge, have no power and ought not set aside or stay the injunction.” The leaders of Johnson’s Washington legal corps—Corcoran and the three senior partners of Arnold, Fortas and Porter—thereupon telephoned Justice Black at his home in Alexandria, Virginia, on Saturday to ask if he would hear their application for a stay of the injunction. Black agreed to do so, setting the date for Tuesday, September 28, to allow time for Stevenson to arrange for legal representation at the hearing.

  HARRY TRUMAN’S campaign train pulled into San Antonio early Sunday morning, September 26. Waiting at the station to greet the President was a crowd of politicians—including one so altered in appearance since he had left Washington in May to begin his campaign for the Senate that Jonathan Daniels, who had not seen him in the intervening months, was startled when Johnson boarded the train. “I think the most dramatic time I ever saw Lyndon Johnson was on that trip,” Daniels was to recall. “… He came aboard, looking like the damnedest tramp I ever saw in my life. He couldn’t have shaved in at least two days, and he looked sick as hell.… If he lost at that point, he was pretty well licked for the rest of his life. He was going to be a great man or just another Texan, and at that point he didn’t know and nobody else knew which it was going to be.” Someone handed him a large drink of Scotch. His hands shook as he drank it. Johnson had been standing with other dignitaries, but went over to the crowd and began shaking hands—as if he couldn’t stop.

  For Lyndon Johnson, Monday was a day of applause. Whatever Truman’s feelings toward him had been before, Texas was indispensable to the President’s own election chances in 1948, and two of the men most important if he was to carry Texas were on the train with him: Sam Rayburn and Tom Clark. And, as Evans and Novak were to put it, “for all of his conservative transgressions during the 80th Congress, Lyndon Johnson would be infinitely preferable to the adamantly conservative Coke Stevenson in the Senate.” And there were more immediate considerations: the President was anxious to keep Texas from joining Strom Thurmond’s States Rights rebellion, and the people identified as States Righters in Texas were Stevenson’s supporters. At stop after stop, the President, with Johnson standing beside him on the back platform, told the crowds, “My advice to you is to go to the polls on Election Day and send Lyndon Johnson to the Senate.”

  But there was another sound that day, too: the rap of gavels in South Texas courthouses. For a race began on this Monday, September 27, 1948—a race which would determine Lyndon Johnson’s future. It was run in two little courthouses in the Rio Grande Valley and, two thousand miles to the north, in the gleaming marble temple of the United States Supreme Court in Washington, D.C. The two Masters in Chancery appointed by Judge Davidson—William Robert Smith, for thirteen years United States Attorney for the Western District of Texas, and J. M. (Mac) Burnett, one of Smith’s longtime deputies—issued subpoenas on Monday morning requiring election officials of Jim Wells, Duval and Zapata counties to appear before them and produce their counties’ ballot boxes, poll lists and tally sheets. The subpoenas were returnable that very afternoon: at three p.m. that day, Smith would begin the Jim Wells hearing in Alice, while Burnett simultaneously opened one in San Diego, the Duval County seat. The testimony of witnesses would be taken expeditiously, the two Masters announced; their hearings would be completed by Friday so that their official written reports could be submitted to Davidson by the Saturday, October 2, deadline the judge had set. In Washington, Justice Black’s hearing would not begin until Tuesday. Abe Fortas had assured Lyndon Johnson that Black’s ruling would be favorable because of the jurisdictional grounds, but favorable or not, the ruling might come too late. If the poll lists and tally sheets were examined and the ballot boxes opened, and if the evidence in them, combined with witnesses’ testimony, proved—proved definitively in public, in court, in a sworn, official record summarized in the Masters’ official reports—that in Jim Wells and Zapata counties hundreds of votes, and in Duval County thousands, that had been counted in Lyndon’s column were not votes at all but simply figures added to tally sheets on the whim of election judges, not even a Supreme Court ruling could save his reputation. A ruling might not, in fact
, be able even to save his seat: pro forma though most Senate investigations of elections might be, how could the Senate ignore proof—official, sworn, court records—of such patent illegality?

  All that Monday and Tuesday, therefore, Johnson’s attorneys in both Valley courthouses employed delaying tactics—abetted by further demonstrations of the difficulty of obtaining evidence in a land outside the law. The Masters’ subpoenas had behind them the full authority of a federal court, but when United States marshals attempted to serve them on election officials they were, in most cases, unable to do so. The witnesses had disappeared. In Duval County, for example, more than fifty witnesses had been subpoenaed. Only eight could be located; many of the others, including election judges and clerks and County Democratic Committee Chairman Campbell King, were reported to be “on vacation”—in Mexico, where, of course, United States subpoenas had no force.

  In Jim Wells County, subpoenas had been issued for three key election officials. When Smith gaveled his hearing to order in the Jim Wells County Courthouse, Marshal W. W. Ainsworth reported that not one of the three could be found. The most important official, Tom Donald, who had had custody of the election records and had refused to open the bank vault to allow Coke Stevenson’s attorneys to inspect them, had apparently left town that very morning—just about the time the subpoenas had been issued, in fact. And when Smith, over Everett Looney’s objections, began to probe into Donald’s whereabouts (“The Court” wants to “lay [its] hands on those records”), the Federal Master was informed that Donald had left town without telling even his wife where he was going or when he might return. That night, Donald telephoned her to say he was across the border in Mexico; he gave her no hint where in Mexico, however, or “what he was going to do” there, or how long he was planning to stay.

  Those witnesses who were located, moreover, were in general somewhat less than helpful when they took the stand. Duval’s County Judge, Dan Tobin, testified that he did not know the names of ten of the county’s eleven precinct election judges—or any information to speak of about poll taxes, election returns or any other aspect of the election. Another Duval official said that “yes, many several thousands” of poll tax receipts had been financed by outside parties. He could not, however, recall who these outsiders were.

  The evidence had disappeared, too. If any piece of evidence was crucial, it was the poll list and tally sheet from Jim Wells’ Precinct 13. Coke Stevenson’s lawyers, who had seen these documents, were convinced that if they were produced in court, their contents would prove beyond doubt that the election had been stolen for Lyndon Johnson.

  The law required three copies of those documents: one copy sealed in the Precinct 13 ballot box along with the ballots, one copy in the custody of the secretary of the County Democratic Committee, and one in the custody of the presiding judge at that precinct, Luis Salas. Committee Secretary Donald, of course, was missing, but now Salas, previously missing, allowed himself to be found and served with a subpoena. As Stevenson and his attorneys, sitting in court, watched the burly former pistolero swaggering to the stand, they believed they were close at last to obtaining the proof they had been seeking.

  They were wrong. Salas was quite relaxed as one of Stevenson’s attorneys, C. C. Renfro, questioned him; he seemed to regard the proceedings almost as a joke. Renfro took him through the election procedure, and elicited from him the fact that he had indeed made the three required copies of the poll and tally documents, placing them in large manila envelopes, about two feet square, and had indeed put one copy in the ballot box, given one to the Democratic officials, and kept one himself.

  And, Renfro asked, where is the one that you kept yourself?

  “It is lost,” Salas replied.

  Salas had a further revelation to make. It emerged as he was explaining the circumstances under which he had lost his copy of the records. Following the election, he said, “there has been so much talk about this Box 13” that on September 15 he had decided to compare his copy with Donald’s. “You see, I had been hearing a lot of talking that there was something wrong with the election. The election was level, nothing wrong with the election. I went to get the copies from Tom Donald to compare with mine.” After Donald gave him the committee’s copy, Salas said, he put both copies in his car and drove to a bar in Alice, the Baile Española. “I stayed there from five, I guess, until nine-thirty, something like that, and when I come back they [had] stole[n] everything from the car.”

  This revelation did not sink in for a long moment. Then Renfro asked, you mean “your copy and Donald’s copy, too?—both lists were stolen? Both are lost?”

  “Yes, sir,” Salas said. The poll list and tally sheet that Coke Stevenson and his aides had seen at the bank had disappeared.

  Salas had a few more points to make under questioning. He had indeed gone to the Alice News on the night of the primary, he said, and he had indeed seen the reporter Cliff DuBose there. But, he said, he had never told DuBose how many votes Johnson or Stevenson had received that day. “I never say anything about how many votes anybody got.” According to Salas’ testimony, DuBose was a rather uninquisitive reporter. “Did he ask you?” Renfro demanded in a voice that was by now indignant. “No, sir,” Salas replied. Renfro, outraged, next asked Salas about the report that two hundred votes had been added. “It is not true,” Salas said. Absolutely unruffled, he left the stand with a broad grin, to shouts from the crowd of “Viva, Luis Salas! Viva, Indio!”

  THE 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.