Means of Ascent (73 page)

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.

T
HE 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.

H
ARRY
T
RUMAN’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!”