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Contested-election case of Carney vs. Morgan online

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Q. How many? — A. Well, I would judge in the neighborhood of 200, maybe 400.
I would guess there was about 200, maybe a little more than 200. I don't remem-
ber exactly what the entire vote was.


Then on page 65 we find this testimony:

Q. What effect, if any; did it have upon you in the enforcement of what is com-
monly called the grandfather clause at the last general election? — A. It had a tendency
of me being a little more lenient with the negro votes than if I had not received it.

Q. Do you know whether or not it had an effect upon the other officials in the same
manner? — A. I think it did; we talked about it.

Q. If it had not been for this influence, do you know whether or not the result
would have been different in that precinct? Or would it have any effect upon the
result in that precinct? — A. I think it would.

Now, I want to take up the testimony of Mr. Moore, of Luther
Township, as found on page 66 of the record:

Q. State, if you know, how many negroes voted in that township at the November,
1912, election. — A. Possibly 120 or 130 negroes.
Q. How many votes altogether did you have in that township? — A. We had 198.

Then on page 67 we find the following in Mr. Moore's testimony:

Q. What effect, if any, did the receiving and reading of that circular have upon
you in the enforcement of the so-called grandfather clause? — A. Why, it caused us to
let parties vote that we would have not let vote if we had not received that circular.

Mr. Stafford. In the cross-erarination of the previous witness,
Mr. Lucas, I find the following language at page 65:

Q. To the best of your knowledge, then, there was no negroes voted in precinct 9->
ward 2, Oklahoma City, except they had registration certificates in due form prop-
erly signed? — A. I don't think there was. There was some of them there that had
registration tickets that was not in due form that we did not let vote.

I assume from that that they were accepting registration certifi-
cates as presumptive proof of qualification to vote, and if they were
not in due form they did not permit them to vote.

Mr. Giddings. If they were accepting them as conclusive proof of
that, and they could be so accepted as conclusive proof, why was it
that the United States attorney, with full knowledge of the law, sent
to each nrecinct election official this letter to which reference has been
made, that he dare not make this test. Certainly it would not have
been a violation of the Federal laws, if a precinct election official,
finding a registration slip not in proper clerical form and not properly
attested and signed, would refuse to let a man vote under that reg-
istration certificate. That would have been a violation of the State
law over which the Federal courts could have had no jurisdiction.

The Chairman. Mr. Giddings, if a question is asked you, I wish
you would answer it in the best way you can. It goes into the record.
We will consider it after all the argument is in and the case is before
the committee for consideration.

Mr. Giddings. I will answer the questions, Mr. Chairman, as best I

Now then, I want to refer to this testimony on pages 66 and 67, the
testimony of Mr. Moore, where this occurs:

Q. What effect, if any, did the receiving and reading of that circular have upon you
in the enforcement of the so-called grandfather clause? — A. Why, it caused us to let
parties vote that we would have not let vote if we had not received that circular.

And so on throughout the record.

And the same testimony, to some extent, is found in the Blaine
County precincts.

I come now to the testimony of a gentleman of the name of Mr.
Barker, of Springer Township, where the same thing occurred. That

46996—14 3


testimony is on pages 74 and 75. He testified he received the 'cir-
cular, and he further testifies as to the effect it had upon them in that
election. This is some of the testimony:

Q. If it had not been for the receipt of those communications and for the fear of
Federal prosecutions, as you have testified, and you had been permitted to enforce
the grandfather clause — that portion of the election laws — what would have been the
result in that township; that is to say, would it have changed the result in that pre-
cinct? — A. I think that I think that knocks the blacks right out of the law.

Q. What effect did that have on the result in that precinct between the different
candidates for office; would it have been Democratic or Republican? — A. I see the
question — it would have meant the number I gave you- — 60 challenged — cut out.

Q. Would it have the same effect of changing the result in that precinct? — A. Oh,
sure, sure.

Q. Do you know most of those negroes, out there? — A. Pretty well acquainted with

Q. Do you know whether all of them were capable of reading a portion of the State
constitution of Oklahoma, and writing portions thereof?- — A. Quite a number of them

Q. Did they vote anyway? — A. They all voted.

Now, I want to direct your attention to the testimony of Mr. Mor-
ris, who lived in another big negro precinct, where 70 per cent of the
Republican vote, according to his testimony, is a negro vote. I want
to quote from page 78 of the record:

Q. How many negroes voted in that precinct, to the best of your knowledge, at the
last general election? — A. Let me see — about 70 per cent of the Republican vote there
is negroes, and I don't know what the Republican vote is; I can't remember it from
time to time. It is probably, though, about 135 or 140 Republican votes, and I think
there is at least 70 per cent of them negroes.

Q. Do you know of any negro there who voted the Democratic ticket at the last
general election? — A. No, sir.

Q. What effect, if any, did these circulars have upon you in the enforcement of the
election laws of the State of Oklahoma? — A. Well, I simply did not want to try to
enforce the grandfather clause in the State it was in with those threats over me.

Q. Were you a married man at that time? — A. Yes, sir.

Q. A man of family? — A. Yes, sir.

Q. Besides your wife? — A. Yes, sir.

Q. Do you know most of those negroes in that township? — A. Yes, sir; I don't think
there is one I don't know. _ .

Q. If you could have enforced this law in that township, would it have made a dif-
ference in the result? — A. Yes, sir; no doubt about it.

Q. Which way?— A. It would luwe given the Democrats the majority.

Q. Did you see any of these negroes tested there by making them read and write
thoroughly a portion of the constitution of the State of Oklahoma? — A. No; we did
not put the test to any of them. We asked them if they could read and write.

Q. If they said yes, what was done? — A. Let them vote.

Q. You know whether there is any illiteracy among the negroes in that township? —
A. I do; yes, sir.

Q. Is there much or little? — A. Why, I believe there is about — I believe there is
a third of them fully vote according to the law.

That is the basis down there. People wno are acquainted with the
situation in the Soutn and Southwest know that is the basis. Some-
times it is 50 per cent, even as in the black belt of Louisiana and

Then he testified that the negroes, probably chock full of partisan
liquor, "They got boisterous, and we thought we would pass them
in. We had a little trouble."

Mr. Morgan. Pardon me; did you say they served liquor to them?

Mr. Giddings. No; I did not say that.

The Chairman. Do they drink any liquor out in Oklahoma?

Mr. Giddings. They do. Sometimes on election clay when they
want them to vote.


Now, I come to the testimony of Mr. Burnsworth, beginning on
page SO, and I wani to show how this affected them:

Q. How many negroes voted in that township at the last general election, to the
best of your knowledge? — A. As nearly as I can recollect, about 70.

Q. What was their political faith? — A. Republican.

Q. If that provision of the election laws of the State, to wit, what is commonly
termed the grandfather clause, had been complied with out there, enforced, would it
have changed the result in that precinct? — A. Yes.

Q. Now, which way would it have changed the result? — A. It would have thro wed
it in favor of the Democrats.

Q. Did you compel any of those negroes to read and write a section of the consti-
tution? — A. Not at the general election, but at the primary I did.

Q. At the general election, that is what I am asking about. — A. From the simple
fact I had tested them at the primary and I knew.

Q. Those you did not know about, did you test them by making them read a section
of the constitution and write it? — A. Well, no.

Q. Why didn't you? — A. From the simple fact I was threatened with the Federal
law if I did.

I think by computation you will find that that constitutes about 668
negro vote, and the records here from other piecinets will show pos-
sibly six or seven hundred moie. The lesumony is in the record.
It is a voluminous record.

The only way I could get at who voted and what their politics were,
was to show who registered and how they registered, and what their
politics were at the time of registration, and to bring the slips showing
that they had voted, and from that at least lay the predicate that
they voted as we charged in this contest, and thereby changed the

Mr. Stafford. In the case of a contest, what becomes of the bal-
lots, under your State law? In our State they can be preserved.

Mr. Giddings. The ballots are preserved.

Mr. Stafford. Are they in existence now?

Mr. Giddings. I think so. Copies of the stubs are right here.

Mr. Stafford. I am simply asking for information. In our State
after a certain time they are destroyed.

Mr. Giddings. I do not know whether these have been destroyed
or not. I do know that immediately after the election we took the
testimony of the secretary of the election board and of the precinct
election officials, and we have presented in this record that testimony.

Now, I come to this proposition, that there is an admission here
upon the floor of this committee by Mr. Morgan that this letter was
sent out by Mr. Boardman, or at least that it was written by Mr.

Mr. Morgan. Oh, no.

Mr. Giddings. That was the statement of Mr. Morgan.

The Chairman. There can be no admission unless we put it on the
record. It is admitted between the parties. I would not consider a
statement made by any man — and Mr. Morgan is as much outside
this committee, sitting where he is, as any of the spectators here.

Mr. Giddings. He is a member of this committee to this extent,
that he is a litigant here. Tie arose here and admitted that Mr.
Boardman had written this letter.

The Chairman. If that is so

Mr. Morgan (interposing). I did not deny it.

Mr. Giddings. If there is no denial of it, it is the same as an admis-


The Chairman. You go ahead with your argument now, and we
will consider that later.

Mr. Giddings. I say he has shown by that admission, made in
open committee, that the United States district attorney had sent
this letter out. Whom would he send it to ? Would he send it to
only one election official, or would it be sent to each and every elec-
tion official in every precinct where there were illiterate negro voters ?
And I think it is shown that he, as ex-campaign manager of the
Republican campaign committee, would desire to not have the law
enforced. The best proof of the fact that the grandfather law was
not enforced in my State is the fact that subsequent to the last
general election not a single solitary prosecution was brought in the
Federal courts for the enforcement of the grandfather law, in viola-
tion of the Federal law.

Mr. Morgan. How is that?

Mr. Giddings. I say not a single solitary Federal prosecution was
brought in any Federal court of the eastern or western district of
Oklahoma for the enforcement of the grandfather clause at the last
general election.

The Chairman. I will not allow any interruptions of a man speak-
ing before this committee.

Mr. Morgan. I beg your pardon.

The Chairman. If there are any points which counsel want to
except to they should make a note of them and answer them later,
or else we will not have a logical argument on the record.

Mr. Giddings. The only prosecution that resulted — and about that
Mr. Morgan may disagree with me — was one that resulted in the
prosecution of the election officials of Blaine County, and that was
not under the grandfather clause, not for the enforcement of the
grandfather clause, but for other acts at certain precincts of which
Mr. Morgan complains, subsequent to the time of the vote and the
return to the country election board of Blaine County of the several
precinct election officials of the county. That was the only thing
the Federal officials could jump on, and they jumped on those poor
devils and indicted them in the Federal court.

Mr. Broussard. What was the offense charged ?

Mr. Giddings. They indicted them under the blanket conspiracy
statute, charging conspiracy to deprive a citizen, under the conspiracy
of a right or privilege, guaranteed to him by the Constitution, or laws
of the United States.

But they could not make that stick; even the Federal court sus-
tained our demurrer to the indictment in that case, and the Govern-
ment appealed that case to the Supreme Court of the United States.
That is the only case that grew out of the last general election in

They were vicious in their demands that the law be not enforced,
and they had threatened innumerable prosecutions in the event of
its enforcement in the several precincts of this district; and it seems
to me that logically it must be presumed that if the election officials
had not been in fear of Federal prosecution that the law 7 would have
been enforced; that having failed to enforce it, the Federal courts
could find no way, through the medium of Mr. Boardman, who was
even at that time United States attorney, to bring any further Federal
prosecution therein.


Now, may it please the committee, the suggestion was made to
me since I came to Washington, that it seemed strange that the
Democratic State or county election board would issue such a certifi-
cate, if there had been such intimidation as we allege.

It is admitted in the brief of the contestee that the State election
board merely acts as a ministerial body, in a ministerial capacity.
The county election board, which is an inferior subdivision, have no
judicial functions ; they could not pass upon the question as to whether
a man has been at least legally elected and go behind the returns;
they must take the returns as they find them, and relegate the one who
thinks himself aggrieved to the State court in an action in the nature
of quo warranto proceedings, if it be a State or county office, and if
it be a congressional office, relegate him to a congressional contest.

The only discretion that a county or State election board has in
my State or any other State, so far as 1 am aware with regard to the
returns, is to see that they are properly attested and signed and
certified, and there the duty and function of the board ends, so far as
the nominees may be concerned.

Now, I want to call the attention of the committee to a case which,
it seems to me, is on all fours with this case. It was a congressional
case, in which the rule was laid down by vast Republican majority,
immediately subsequent to the Civil War, and at all times until the
enfranchisement acts were repealed in 1894.

Some of the members of this committee will remember that pre-
vious to the war between the States there was vested in the State
governments the supreme power of conducting their elections. And
you will remember that subsequent to the war, beginning late in the
sixties, and early in the seventies, the Congress of the United States
began the passage of laws which they were pleased to term enfran-
chisement acts. Those laws provided for supervisors of election in
the different States of the Union, particularly in the South, provided
methods of procedure for conducting the election, and provided
punishment. They remained upon the Federal statute books until
1894, when, under the masterful guidance of Senator Gorman of
Maryland, all of them, except the conspiracy statute, were repealed.
It was the evident purpose to reinvest the power to conduct every
election in the State tribunals and in the State jurisdiction as they
had been previous to the war between the States. The only single
Federal statute in any way interfering with the right of the States
was section 19 of»the Penal Code. Evidently it was the intent at that
time to repeal that as well, if it did apply to the conduct of elections.
I have always had my doubts as to whether that statute had any
application to the franchise. It is found to-day under the title of
civil rights, and that is where it belongs, in my judgment.

After the passage of this law creating supervisors of election — and
I do not mean to raise any sectional issue here, but you know the
primary purpose was to protect the Negro in his new-found privilege,
not right, of franchise. While that law was in vogue, and previous
to the time when Senator Gorman began his agitation to repeal it, a
contest came from the South in which the question was raised as to
what intimidation of election officials should vitiate an election, and
the hard and fast rule was established by the Republican majority
on the committee in that Congress, which rule I intend to read to you,


and certain! v it will not be contended that if that rule as then estab-
lished was good for them at that time that it is not good for them now.

I will read to you from the case of Hill v. Catchings, in the Fifty-
first Congress.

Mr. Broussard. Is that a Mississippi case ?

Mr. Giddings. I think it is. It is quoted in the brief of Mr. Davis,
who is the contestant against Mr. McGuire, on page 34. It is the
case of Hill v. Catchings in the Fifty-first Congress. These Federal
supervisors were down there at this time. It was contended that
they were intimidated in the conduct of that election, and that the
intimidation was general in its nature, and a vast Republican
majority of the House, on proof that that general intimidation
existed, adopted this rule :

If it be shown that there was an unlawful interference with the United States super-
visors of elections whereby they were prevented from discharging duties which are
committed to their hands by the law, then it would undoubtedly be our duty to set
aside the election at such precincts.

In every instance where a United States supervisor is prevented from discharging
his duties, as provided by statute the committee hold that such fact destroys the
validity of the return and requires its rejection, leaving the parties to prove the votes
by other competent evidence.

Why does not the intimidation which runs like a black cloud all
through the heaven of this contest, .constituting the same nature of
intimidation, entitle this contestant to the same relief as given the
contestant in that case, where the Federal supervisors of elections
were intimidated ?

Here we have the undisputed and undenied testimony and admis-
sions that this letter went into the several precincts; that it was writ-
ten by the United States attorney; that it was received by every
election official in every negro precinct in the district, and each and
every one of them, in substance and effect, come before this commit-
tee and say that the receipt of that letter and that circular intimi-
dated them so that they could not hold an election that could be
free and equal.

In every instance where a United States supervisor is prevented from discharging
his duties, as provided by statute, the committee hold that such fact destroys the
validity of the return and requires its rejection, leaving the parties to prove the
vote by other competent evidence.

I want to get back now to the proposition in regard to this warn-
ing circular, and I want to show this committee how it could not
possibly affect anybody in the second congressional district advanta-
geously except Dick T. Morgan, and nobody injuriously except this
contestant, outside of the presidential electors. I want you tonotice
the ingenious language used, which indicates that suchwas the intent,
and I am going to show you in a moment an authority on all fours
with the contention I made here yesterday as to where the blame
should lie and who should receive the detriment occasioned by the
issuance and circulation of such matter.

Certainly no man would forge the name of Boardman; certainly
if this had been an unauthorized letter some prosecution somewhere
would have been instituted by Mr. Boardman or his duly authorized
and accredited agents for the purpose of showing that he had nothing
to do with the letter. Certainly it was up to them to show that this
letter was unauthorized.


Mr. Broussard. Is Mr. Boardman still district attorney out
there ?

Mr. Giddings. No, sir; he has been either removed

The Chairman (interposing). He is not district attorney out there

Mr. Giddings. He was up to a little while ago. His assistant,
Mr. Taylor, is now district attorney down there.

On page 25 of my brief I call attention to the language of this
letter, which is so ingenious and its force and its evident purpose
and intent merely were to affect the election of a Congressman and
presidential electors in that district . That language is :

As to the purely State questions involved in the law, I do not express any opinion,
the same not being within the jurisdiction of this office, and his opinion is directed
solely to the Federal question involved; that is, the application of the grandfather
law to negroes who, on account of race, color, and previous condition of servitude, are
not permitted to vote without submitting to certain tests of reading and writing.

And that solely could apply to Members of Congress and the
presidential electors.

Now, then, let us see what authorities there are which sustain our

Mr. Rogers. Were not the candidates for United States Senator
balloted for at that time ?

Mr. Giddings. Yes, sir.

Mr. Rogers. And the Congressmen at Large?

Mr. Giddings. The Congressmen at Large. That is right, but
the United States Senator was elected at the time by direct vote of
the people, and not by the legislature.

The suggestion was made here yesterday by some member of the
committee, and I have tried to follow the suggestions and answer
them to the limit of my ability- — as to whether or not there should
have been some bodily force used, or some bodily violence or intimi-
dation, as to whether or not that should not have existed ; in other
words, if it merely operated on the mind, whether that would be suffi-
cient intimidation.

I want to call attention to a case of Richardson v. Rainey, in the
Forty-sixth Congress, in which this rule was laid down:

It need not be that there is at the time of voting the presence of threats or of force,
or the present fear of actual bodily hurt. The genius of free institutions demands that
the mind as well as the body shall be free to exercise the elective franchise as the voter
may see fit. The fear of bodily harm, the fear of social ostracism, the fear of religious
wrath, if brought to bear upon the body of voters, or if exercised to any great extent,
mar the purity and destroy the freedom of elections, and if it be so general as to affect
the result, or if from it the real result can not be ascertained from the returns, the
election is void .

The purity of elections and the effect upon the body of voters as a whole is in the
hands of election officials, and if they are intimidated not one vote but all are in the
condition above mentioned, and none are free from the contamination. If the foun-
tain head from which purity flows is not pure, then the votes can not be pure. The
impure votes are cast with the pure and they make the pure impure and they must
be counted against pure votes.

If the fear therefore be such in extent that it mars the purity and destroys the free-
dom of the election, or if it be so general as to affect the result so that the real result

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