This article explores the history of high-profile election-dispute litigation in the U.S. in 1948, a whirlwind of proceedings in state and federal courts that followed the disputed runoff election between Congressman Lyndon B. Johnson and his opponent for the nomination of the Texas Democratic Party for the office of Senator. Johnson famously won this election by 87 votes, out of a million cast, based on very tardy vote tallies from politically corrupt Jim Wells County in the Rio Grande Valley of Texas, a result that was sustained—ultimately by an unusual, last-minute stay issued by a US Supreme Court justice in favor of Johnson—at the end of three weeks of litigation between the candidates. The litigation is intrinsically interesting: as a key moment in LBJ’s rise to power and perhaps as a precursor to Bush v. Gore. However, working from the legal papers, the court proceedings, and other primary sources overlooked or unappreciated by LBJ’s biographers, this article opens a different perspective on this litigation and in doing so illuminates the essential role of "lawyering" to obtain the desired election result.
The article employs what I call “historical lawyering,” that is, using the pleadings and briefs, hearing transcripts, court clerks’ records, and oral history interviews of the participating attorneys to determine how, in the “real world” of legal process—in the filing of pleadings in selected court clerks’ offices or directly with a judge, in the conduct of hearings with no or limited notice, and in the presentation of injunctive orders to judges in their chambers or vacation cabins—the lawyers did their work. Elsewhere I have posited a definition of “lawyering” [101 L. Library J. 207 (2009)], and the article here submitted assesses the lawyering of each candidate’s legal team to control the outcome by way of injunctions during three hectic weeks in 1948. The lawyers cobbled together ad hoc arguments about election law and candidates’ rights, drafted pleadings under pressure, selected fora and judges (both state and federal), utilized—and at critical times ignored—procedural rules, developed or eschewed evidence, and obtained successive, trumping injunctions, the last of which provided LBJ with the desired control of the outcome by preserving the crucial certification of the political party of himself as the winner.
In this disputed election, the winning candidate was the one whose lawyers more capably invoked and maintained injunctive process in courts. The history of this event informs the need for improvements in the law of elections: the outcome of close, disputed elections should be more rationally determined than by leaving it to the creativity and resourcefulness of the the lawyers each candidate selects.
[final version now publishied in 31 THE REVIEW OF LITIGATION 1-70 (2012)]
- historical lawyering,
- disputed elections