Evening star., 1948-10-03
Senate Seat Is at Stake =
In Texas Election Suit
Supreme Court May Decide Issues
in Johnson.Stevenson Case

Supreme Court May Decide Issues
in Johnson.Stevenson Case
By Gerard D. Reilly
Confusing alike to the lawyer and the lay.
man because Of the highly technical character
Of the proceedings, the battle to throw the
exciting Texas contest for the U. s. Senate into
the Federal courts enters upon its fourth round
tomorrow when the Circuit Court of Appeals
for the Fifth Circuit hears an appeal from
Representative Lyndon B. johnson to vacate
an injunction obtained by former Gov. Coke r.
Stevenson to prevent his Democratic oppo-
nent's name being placed upon the ballot. Bee
cause Of the time element involved, any decis.
ion In the circuit court would have become
academic had not Associate Justice Hugo L.
Black last week stayed the effective date Of
the injunction until the case could be heard
on the merits.
At stake is the Senate seat originally OBJ
tanned seven yeare ago by w. Lee ODaniel
as result Of a special election in which the
liberal young Congressman was the loser BY
less than fraction of per cent Of the total
cast. Mr.. Johnson himself never contested
that election and resumed his seat in the
House after brief absence on military leave
This year, with the backing of the Roosevelt
for some bitter-end union officials who re-
sented his support of the Taft-Hartley Act), he
made an effective canvass of the State in
helicopter. The early returns from the run.
OH primary, however, caused his friends to fear
that he was In for another heartbreaking de-
feat Mr.. Stevenson led by few hundred
votes In total OF more than a million, until
the final returns, not completed until week
later, put Mr.. johnson ahead by 81 votes.
Under Texas law, each party convention has
the duty of canvassing the returns in its own
primary and certifying the successful nominees
to the Texas Secretary Of State. On the basis
of the official tabulations by the 254 county
executives committees the Democratic State
Convention on September IA concluded Mr..
johnson was the winner. The Stevenson sup
porters who had unsuccessfuy carried the
issue to the convention floor decided not to let
the matter rest there.
When the convention broke up, midnight
conference of the Stevenson lawyers was held.
Apparently 1t was deemed impossible to get
the State courts to intervene, as a decision Of
the Supreme Court of Texas rendered in ono
OF the Ferguson contests a few years ago
established the doctrine that a certificate Of
nomination issued by a State convention Is
final and not subject to judicial review At
an early hour in the morning the losing candi-
dates counsel obtained an ex-parte audience
with United States District Judge Whitfield
Davidson. A few hours later the Judge signed
. temporary restraining order forbidding the
chairman and secretary of the Democratic con-
vention from certifying Johnson's name to the
Secretary Of State and setting the case down
for hearing q week later.
Then it developed that the certification had
already been made. Late that evening on the
basis Of an amended complaint the restraining
order was broadened to enjoin the Secretary
Of State from certifying Johnson's name as
the Democratic nominee to the local election
ofhcials and also restraining the county election
boards from printing any ballots listing Mr..
Johnson as the Democratic nominee.
Since the holding Of primaries in Texas, as
In all other STATES, Is regulated almost entirely
by State statute, the theory upon which tha
Federal Court was asked to take Jurisdiction
was novel one. According to the complaint,
three county returning boards had submitted
fraudulent, or at least inaccurate, returns
which improperly increased the johnson total.
The court was requested to pass upon these
allegations, annul the Johnson certificate and
to declare Mr. Stevenson the nominee. Coun.
sci for Mr.. johnson then moved for dismissal
had no jurisdiction.
The ground relied upon by Mr.. Stevenson
for the Federal Judge to entertain the contro-
versy was the Civil Rights Act passed by Con-
gress in the reconstruction period. This act
gives the United States courts jurisdiction in
civn suits based upon "deprivation of any
rights, privileges and immunities secured by the
Constitution and laws" This statute has gener-
ally been construed as giving relief only to per.
sons who have been deprived of some constitu.
tional right, eg., the right to vote, the right to
engage in religious exercises, or such facets Of
the right to free speech as the distribution OF
pamphlets, peaceful picketing and assemblage
Stevenson did not assert that he had been
deprived Of any of these rights. He made
the ingenious suggestion that the right to be
the Democratic nominee for the Senate in
Texas was tantamount to a right to public
offce-a property right exceeding in value the
300O limitation required by the Judiciary Act
as a minimum condition for maintaining suit
Although most of the authorities do not sup
port such theory, Judge Davidson was suf1-
GENTLY impressed by this argument to take
jurisdiction, deny the motion to dismiss, and
issue temporary injunction.
This order was issued on September %. Un.
der the Texas statutes the county election
boards must post the names of the nominees
who have been certified by the Secretary Of
State TO have been chosen by their respective
parties in The various polling places. After
the names have been posted for 10 days the
statute directs them to prepare the ballots for
printing. Consequently the practical effect Of
the temporary restraining order was that no
Democratic nominee for the Senate could be
placed on the Texas ballots, for the date Of the
preliminary posting would have been passed
long before the commissioners could have con.
Quoted recount of the ballots in the disputed
counties.