THE 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.
One of the two drums was indeed a ballot box from Precinct 13, Jim Wells County. Despite his efforts to confuse the court, Salas had testified that on Election Day he had signed the back of each ballot, and when Smith reached into this drum he found that the ballots inside were signed “Luis Salas.” Pulling seven out at random (they bore numbers from 229 to 1010), Smith asked Salas formally, “I ask you if that is your signature,” and Salas acknowledged that it was. Then the Master lo
oked through the ballot box. It contained hundreds of ballots. It did not contain a poll list, or a tally list.
The second of the two boxes was not from Precinct 13. It contained ballots from Precinct 4. There were still eighteen boxes piled up in front of Smith, and the Master was determined to find out for certain whether the crucial lists were in one of them. If the lists were not in one of those boxes—either because when the second Precinct 13 box was identified and opened, the lists were not inside, or because there turned out to be no other box from Precinct 13 in the pile—that would mean that the third copy of the lists had disappeared like the first two, and in Smith’s opinion, this destruction of every copy of Box 13’s records would be “the most potent piece of evidence” of the illegality of the returns that had elected Lyndon Johnson. When Salas, recalled to the stand, continued to maintain that none of the other eighteen boxes was the other box from his precinct, the Master recessed the hearing until nine-thirty the following morning, Wednesday, and announced that he would open the rest of the boxes then.
THROUGHOUT THAT EVENING, lawyers worked in Washington to draft the text of an order for Justice Black’s approval, and on Wednesday morning they presented it to him. Black retired to study it.
Meanwhile, in Alice on Wednesday morning, the climax of the Master’s hearing was at hand. Jamming the benches of the little courtroom and lining the walls in the rear and the sides were witnesses—the witnesses who had testified in Fort Worth that they had not voted in Precinct 13 despite the fact that their names were on the poll list, and dozens of others, including the two men Salas feared would be indicted if they were put on the stand. The witnesses had been told that they would be called to testify that day—as soon as the Master had finished opening the ballot boxes. And Luis Salas was in court again, and during the night his resolution had hardened: he would not allow his election clerks to take the blame; if they were called to testify, he would take the stand again and, this time, tell the truth.
In front of Lyndon Johnson’s attorneys were the ballot boxes, behind them and all around them were the witnesses: they were surrounded by the evidence they had been fighting to keep out of the record. Desperately hoping for the arrival of Justice Black’s order, they made a new time-consuming motion that required a ruling from Smith. Parr’s deputy sheriff was again stationed in the County Judge’s office down the hall from the courtroom, waiting for the phone call from Washington that would keep the rest of the ballot boxes from being opened. But the call still had not come. “Let’s proceed,” Smith said. Because—perhaps unsurprisingly—the keys to the padlocks on nine of the eighteen boxes were missing, Smith sent for a locksmith, who began working on the nine locks as Smith began opening the other nine boxes. At one point that morning the Master let his feelings show through. As he was about to open a box, one that Salas said was not from Precinct 13, Tarleton said, “We object to the opening of that box because a witness has positively testified it was not Box 13.” “That witness testified to a lot of other things, too,” Smith said dryly, opening the box. The stream of frenzied interruptions by Johnson’s attorneys continued. When Smith looked at ballots to see which precinct number they bore, Looney objected to his “examining … ballots from other boxes.” I’m just trying to see if they are Box 13, Smith replied. “A violation of the sanctity of the ballot box,” Tarleton shouted. “You have impeached the verity of the ballot when you have opened the box.” Smith kept proceeding through the boxes. At the start of that Wednesday morning, eighteen had stood between him and the proof he considered “most potent.” One by one, that morning, the eighteen were being opened. First came the nine unlocked boxes. None contained the ballots from Precinct 13. There were nine to go, and by this time the locksmith had opened them. The phone call from Washington had not come. The race was very close now.
Shortly after noon, Smith recessed the hearing for lunch. When he reconvened, at one-thirty, that phone in the County Judge’s office had still not rung. Pointing at the nine remaining ballot boxes, the Master said: “Let’s pass [them] up, please.” He had opened two—neither from Box 13—and was lifting the top from a third when, at one-fifty, the phone rang. Allred was on the phone. Justice Black had just signed an order directing that all proceedings in the case be stayed “until further order of the Supreme Court.” Shoving his way through the spectators jamming the courtroom door, the deputy sheriff ran up to Dudley Tarleton and whispered to him. The white-haired attorney, oratorical tricks forgotten for once, leaped up and without a word to Smith ran behind the sheriff to the County Judge’s office, where Allred told him that Davidson had received Black’s order, and had sent a telegram to Smith (and to Federal Master Burnett, in San Diego) ordering them to halt their hearings. When Tarleton returned to the courtroom and informed Smith of this, the Master telephoned Davidson, who confirmed Tarleton’s report. Resuming his seat on the bench, Smith said, “Judge Davidson has just instructed me to close this hearing and proceed no further.” He did so. The race was over. The third copy of the poll list had not been found (and never would be), but because seven of the ballot boxes had not been opened, no one would ever be able to prove definitively that all three copies had vanished. The hearings ended in anticlimax. Smith told the courtroom that he would be unable even to file a report. “I hardly see how I could make any findings … on a record wholly incomplete,” he said. “The testimony was not all in, and one of the parties had not been heard and the other party had been heard only in part.… As a matter of fact the plaintiff had just begun to develop the case when we adjourned.” To this, Groce added a statement poignant to Stevenson’s adherents. “I am so full of what went on in Fort Worth which Your Honor does not know about.”
Well, Smith repeated, the whole record is not in.
“It will be,” Groce said.
GROCE WAS WRONG. On October 5, the Supreme Court refused to hear Coke Stevenson’s petition that it consider Black’s stay of the injunction. On January 31, 1949, the Court rejected Stevenson’s petition for a trial on the merits of the case. The hearing Judge Davidson had ordered would never be resumed. The remaining ballot boxes were never to be opened. The testimony of the witnesses who filed out of the Alice Courthouse—and out of the Courthouses in Duval and Zapata counties—without being heard was never to be heard. The federal courts’ investigation of Lyndon Johnson’s 1948 senatorial victory was over. Definitive proof that the decisive two hundred Box 13 “votes” had not been cast was never to be obtained. Proof that thousands of other votes from the Rio Grande Valley—votes indispensable to Johnson’s election—were not votes at all but merely numbers written on a tally sheet by border-county jefes would never be obtained. Evidence that some of these votes were “cast” by dead men would never be presented in a court of law. Abe Fortas’ strategy had worked with only a few minutes to spare. But it had worked.
All other investigations were, in effect, over, too. Stevenson asked the Justice Department and the FBI to investigate the election. Attorney General Tom Clark agreed to do so, but the investigation showed, as one analysis put it, “a notable lack of investigative and prosecutorial vigor.” An historian has written: “The FBI investigation … disappeared without a trace.” Attempts by Stevenson partisans to interest the FBI and Justice Department more deeply in the case resulted only in “a fancy dance without a serious investigation”—as was also the case with a pro forma Senate investigation of the Texas senatorial election. After Lyndon Johnson easily defeated Republican Jack Porter in the November election, he was seated in the Senate.
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