Means of Ascent (70 page)

Moody, however, replied that those arguments did not apply to a civil rights case. Stevenson’s suit, he said, was being brought under a civil rights statute that allowed a federal suit in cases in which an individual has been deprived, “
under cover of state law or customs or usage,” of rights “secured by the Constitution of the United States.” Stevenson had been deprived of such rights, he insisted: “
The Constitution provides that a citizen has a right to become a candidate” and entitles him to an “honest count” of the vote. The plaintiff, moreover, was not just a candidate. He was a voter. “He has a right … as does every other voter in the state
to have his vote honestly counted, honestly and legally, votes not thrown out and no stuffing of the ballot box.”

And Moody argued also on broader grounds. “Under the law of Texas,” he said, “there is no remedy to correct such a wrong” as Stevenson had suffered. But did that mean that there should be no remedy
anywhere?
That someone could commit fraud and be immune from punishment for it? He did not believe that, he said. “I decline to believe that the courts of the United States are impotent to detect fraud and punish [it].” And
that was why the jurisdiction of this court had been invoked, he said. “The jurisdiction of the Court is invoked to prevent wrong.”

It was not merely Coke Stevenson who had been deprived of a federal right—a right guaranteed by the Constitution—by what had happened in the Valley during this election, Moody said; it was every voter who had voted honestly and had had his vote in effect canceled by one put in the ballot box dishonestly. “Your honor,” he said, “I can sum up in a word the nature of [this] suit. While it is an action in equity in the Federal Court,
essentially it is a crusade for honesty in the ballot box and for the protection of the people of this state from fraud in election and from depriving the people of their honest choice in the election of a person to high office.”

And then, before he recessed court for lunch, Davidson said a few words—and to the shock of Johnson’s attorneys they did not seem to be the words of a judge who felt that he had no jurisdiction in the case, or that the legal questions were as cut and dried as they maintained. “
The court wants to say one or two words off the record,” he said. Wheeling around in his chair, he faced the two candidates, and spoke directly to
them, in a low voice that the audience strained forward to hear. Under the present circumstances, the judge said, whoever won the nomination would win it under a cloud—and that cloud would not go away. “
Public sentiment will crystallize into anti-Stevenson and anti-Johnson sentiment.… You will have the feeling among some in Texas that the winner has won on a technicality.” No matter who won, there would always be a shadow on his public
career. Therefore, the judge said, he had a suggestion—“and it is only a suggestion, off the record and will not be included in my decision”: arrange to have the Democratic State Executive Committee place both names on the general election ballot, and “let the people of Texas decide the winner.”

Stevenson needed no time to decide if he was willing to do as the judge suggested. “All smiles as the noon recess began,” in the words of one reporter, he said, “
Sure I’m for it. I’m willing to run it over.” Pushing his way out of the courtroom, Johnson said, “
No comment.”

In a conference that noontime, Lyndon Johnson’s ten attorneys advised
him to accept Davidson’s suggestion. It was hardly the suggestion, they pointed out, of a judge who doubted his jurisdiction, and, although Davidson had made no direct statement, the tone of certain other remarks by the judge indicated that he was likely to rule against them on the jurisdiction issue. If he took jurisdiction, there would be a wide range of
possibilities, and most of them—an investigation of the South Texas boxes, for example—would be quite ominous for their client. Indeed, even the present hearing was ominous: those witnesses were waiting just down the hall; what if Davidson allowed them to take the stand? What might they say? Accept the judge’s suggestion—settle the injunctive suit with the compromise he suggested—and the hearing would be over. In explaining their recommendation that
Johnson compromise, the only one of the attorneys still alive,
Luther E. Jones, says simply: “The uncertainty of the legal processes: who knew what was going to happen, particularly in a case as complicated as this. And, you know, lawyers like to compromise: any settlement is better than a lawsuit, that kind of thing.” It was not inconceivable, his lawyers warned Johnson, that if Davidson held a full-scale trial on the issue, Johnson’s name
would not be on the ballot at all. “The compromise that the judge had suggested here was that both go on the ballot, and the feeling was that in that case [Johnson] would win”: in a general election, the state’s conservative vote would be split between Stevenson and the Republican candidate.

The team of ten lawyers offering Lyndon Johnson this counsel—offering it unanimously—included not only former Governor (and federal judge) Allred, not only Alvin Wirtz, Johnson’s most trusted adviser, but, in Crooker and Cofer and Tarleton and Looney, a quartet of the most renowned and respected lawyers in Texas. When they gave clients advice, the clients usually followed it.

Lyndon Johnson did not follow it. During the next few days in that September of 1948—those days of crisis—he was to display vividly many of the most striking qualities of his nature. One was the fierceness and determination with which he grabbed for political advantage, grabbed it and, once he had it in his grasp, held on to it. He had the advantage now—he had the certification from his party—and agreeing to Davidson’s compromise would
mean relinquishing that certification, sharing it with the man from whom he had taken it. Another was the utter inability to comprehend the questions of morality or ethics raised by his actions, an utter inability to feel that there was even a possibility that he had violated accepted standards of conduct and might be punished for that violation. But, during this conference and during the following days, Lyndon Johnson was also to display many of the qualities that made him a leader
of men.

Among those qualities of leadership was a willingness to take responsibility
for his own fate. This quality had been a constant in his career. No matter how strong the lure, he had never tied himself inextricably to Roosevelt or to Rayburn or to
Herman Brown. If he had not placed his faith in princes, he was certainly not going to place it in lawyers. He would make up his own mind. Another quality was
decisiveness; he might delay for a long time studying a decision, but when the time came to make it, he made it. And if he had to make it without study, if he had to make it fast, he made it fast. Lastly, there was the sheer force of his personality, the dominance of Lyndon Johnson, face to face, over other men, even over ten other men, even over ten famous and respected men operating in the field (the law) of their expertise, not his. Lyndon Johnson might, as on this occasion,
be leading men in a battle whose aims and methods would not bear scrutiny. But he would
lead
.

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.

T
HE 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.