Class-c/Mlff Book_ * w i&$*> Oi o CONTESTED ELECTION CASE OF CARNEY VS. MORGAN HEARINGS BEFORE THE COMMITTEE ON ELECTIONS NO. 2 HOUSE OF REPRESENTATIVES SIXTY-THIRD CONGRESS ■ Second Session ON THE CONTESTED ELECTION CASE OF JOHN J. CARNEY, Contestant vs. DICK T. MORGAN, Contestee FROM THE SECOND CONGRESSIONAL DISTRICT OF OKLAHOMA APRIL 29, 30, MAY 1, 2, 4, 5, and 6, 1914 WASHINGTON GOVERNMENT PRINTING OFFICE 1914 d; gfd, JUfi 27 1914 i - CONTESTED ELECTION CASE OF CARNEY YS. MORGAN. Committee on Elections No. 2, House of Representatives, Wednesday, April 29, 1914. The committee this day met, Hon. James A. Hamill (chairman) presiding. The Chairman. Gentlemen of the committee, we have met to-day to hear the case of John J. Carney versus Dick T. Morgan. Is there anyone here representing Mr. Carney? Mr. E. J. Giddin.gs. I represent Mr. Carney, Mr. Chairman. The Chairman. Is there anyone representing Mr. Morgan ? Mr. L. T. Michener. I represent Mr. Morgan. My name is L. T. Michener, of Washington, D. C. The Chairman. You may proceed, Mr. Giddings. Mr. Michener. Before Mr. Giddings proceeds, Mr, Chairman, I would like to renew the objection made at various points in this record, while the contestants' evidence was being taken. These objections invoke the rule that depositions shall be reduced to writing, the questions and answers shall be reduced to writing in the presence of the witness and be signed by him. After the taking of evidence in this case had proceeded for a little while that rule was broken, over the objection of the contestee, and a little bit later a stenographer was introduced, over the objection of the contestee, and he took the evidence as stenographers do and certified to its accuracy. Those objections were made as the occa- sions arose, and we are still raising those objections. We do not want by silence to appear to acquiesce in the alleged regularity of the taking of the depositions. Mr. Oglesby. Do I understand that those objections are as to the correctness of any fact that would go to the substance of this matter, or are they merely technical objections? Mr. Michener. They are merely technical in that the rules of the committee were not followed in the taking of the depositions. Mr. Stafford. You do contend that they are merely ex parte depositions ? Mr. Michener. It is for the reason that they were not taken as the rules require. Mr. Giddings. The statute requiring the reduction of the questions and answers to writing was a statute passed in the seventies, at a time when stenography was not an exact science as it is to-day, and the courts have uniformly held that a broad construction should be placed upon a statute of that nature, and that unless there are some questions or answers which are different from what they were when propounded or given, a technical objection of that kind will not lie. 4 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mi\ Oglesby. What I wanted to bring out was whether or not there was a contention that the stenographer's minutes were not correct. Mr. Giddings. No, sir; they can not make such a contention. Mr. Stafford. There is something in the brief of the contestee which claims that the depositions were not taken according to the rules of the committee, and that therefore they should be disregarded. Mr. Michener. That is the objection which we formally renew. Mr. Oglesby. There is no objection raised as to the correctness of the transcript of the testimony? Mr. Michener. There is no objection to that. Mr. Giddings. That matter has been so often passed upon by the courts, that we did not think it would be raised at this time. Mr. Stafford. It was raised in the contestee's brief. Mr. Giddings. It was raised at the trial, but a number of questions and answers went in without objection, and later on they wanted to require us to reduce each one to writing, and have all of them signed in the presence of the witnesses, which would have taken more than the time allowed for which to take the testimony of the contestant. The Chairman. You may proceed with your argument, Mr. Gid- dings. ARGUMENT OF E. J. GIDDINGS, ESQ., COUNSEL FOR MR. JOHN J. CARNEY, CONTESTANT. Mr. Giddings. If the committee please, this case involves a very serious question to my people. It has been briefed and the record preserved with the utmost care, because upon the decision of this com- mittee, to some extent, may rest the future elections of my State, in- volving Congressmen. Previous to the last general election the people of Oklahoma, by a majority of over 50,000, adopted at the ballot box a law which be- came known as the "grandfather clause." An examination of this law will show that it was largely predicated upon the law of North Caro- lina, which received a favorable interpretation by the supreme court of the State of North Carolina, the decision of that court becoming a final decision by failure of an appeal to the United States Supreme Court thereon. Subsequent to the passage of that law in Oklahoma by the majority I have stated, the supreme court in my State, not once, but thrice, upheld the validity of the constitutionality of that provision. After the supreme court had upheld it, an inferior Federal tribunal, as the record in the case will show, when two of our elections officials were indicted after the election of 1910, held the law invalid, held it as being discriminatory when applied to the negro race. Two election officials, as the record will disclose, in Kingfisher County, Okla., in the black belt, were prosecuted in the Federal court and convicted. Conviction is pending now, upon appeal, in the United States Supreme Court. The Chairman. Those were the cases of Beal and Guinn. Mr. Giddings. Yes. The Chairman. Both of them ? I CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 5 Mr. Giddings. Yes. These are the parties who are disclosed by the record, and it will not be controverted by the contestee or his counsel. With the record of that conviction in the minds of all the precinct election officials of the State, the Republican campaign committee, the Republican manager for Dick T. Morgan in the previous cam- aign, who afterwards became the United States district attorney or the western district of Oklahoma, sent into each negro precinct in the last congressional election a warning circular, which you will find set forth in full in the record, on page 9, in which each precinct election official was warned that if he enforced the so-called grand- father law of that State, he would meet a like fate as Bell and Quinn had met, advising that election official, before he sought to enforce that law in his precinct, that he talk it over with his wife and see whether or not it would be for the peace and harmony of his domestic affairs for him to serve a term in the penitentiary. Attached to that circular was a letter from the United States dis- trict attorney of the western district of Oklahoma, in which he quoted from different decisions, and in which he advised that even the defense of good faith Mr. Stafford. I do not see any citations at all of any decision in that letter to which you refer. Mr. Giddings. It is there, in the record. Mr. Stafford. There is no citation of authorities at all in his letter. Mr. Giddings. Oh, yes. Mr. Stafford. I have the letter before me in the record, and I read it over last night, and I do not see any citation of any decision in that letter. Mr. Rogers. It is on pages 8 and 9 of the record. Mr. Giddings. It cites the criminal code and the propositions of law relating thereto, and it cites the decisions of the United States district courts of the eastern and western districts of Oklahoma on the constitutionality of the law. Mr. Stafford. The counsel for the contestant has made a state- ment in regard to the record, and I have taken exception to it. Now I direct his attention to his brief, on pages 25 and 26, where that letter is contained. Mr. Giddings. I had intended to read the letter. Mr. Stafford. The gentlemen stated there were copious citations of the decisions of the courts in that letter. I fail to find any citations in that letter. Mr. Giddings. You will find them if you read it. He cites copious citations from the supreme court of Oklahoma in regard to the constitutionality of the law. Mr. Stafford. There is no citation of any case in that letter. Mr. Giddings. He cites the decisions. The Chairman. He refers to the cases of Bell and Quinn and re- minds his interrogator of actions taken by the court in those cases and then goes on to comment on the power of the United States Congress in its own sphere to be supreme. Mr. Giddings. I had no intention to misquote the statement of the United States attorney, and I had intended a little later to read it to the committee in full. 6 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. The Chairman. Let me say this to counsel, and to everybody con- cerned in the case, that if anyone arguing a case before the com- mittee misstates anything to the committee and says something which is not in his brief or in the record he injures his own case, be- cause the committee will consider the matter very carefully. I simply make that statement because it is suggested by what has come up here this morning. Mr. Giddings. I had intended to read the letter to which refer- ence has been made — to read it in full to the committee. The Chairman. If anyone arguing a case before the committee lays down grounds which he can not substantiate, when the com- mittee comes to consider the case they will take that matter under advisement. Mr. Giddings. I had intended to read this letter in full and let the committee pass on it — to let the committee judge for itself whether there are any copious citations therein or not; and I had also in- tended to read the grandfather law and the warning circular to which I have referred, in addition to this letter, and then to quote from the testimony in the case of several witnesses as to what effect that had upon them in the enforcement of that law. I had no in- tention of misquoting anybody. I do not practice law that way. I was saying, before I was interrupted, that this letter contained references — and if the gentleman would rather have it now I will read it to him — as to what the district courts on the Federal side in our State had held with reference to that matter. It can not be questioned but what they had held the law to be invalid and uncon- stitutional, and in violation of the construction placed upon that law and in contradiction of that construction by the supreme court of the State— — Mr. Stafford. I have not found in the briefs of either of the parties any reference to the citations of the decisions of the Federal courts passing upon such case. Have they been printed, or were they merely verbal opinions ? Mr. Giddings. They were opinions by the district judges and the circuit judges in the eastern and western district of Oklahoma. They have never been printed, to my knowledge. Mr. Stafford. They have not been reported, then ? Mr. Giddings. They have not been printed, as far as I know. It is possible that they may have been printed, and I not know anything about it. After the election, several election officials in this congressional district, and particularly in Oklahoma County, where there were about 1,400 or 1,500 negro voters, sought to amend the returns originally made by them to the county election boards setting up the fact that there had been no valid election in their precincts, and that they had been intimidated in the enforcement of the law; that negroes had voted there who had not received the test; that they had not applied the test for the reason that they were afraid of Federal prosecution in the light of these two previous convictions, and asked that the returns be amended for the obvious reason that the vote in the several precincts —the good vote was so intermingled with the bad vote — that you could not tell what the result in the precinct would have been without it, and that therefore, under all the rules of election contests, CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 7 the entire precinct must be eliminated from the consideration of the entire poll. The Chairman. Do you refer to the instance where the 10 counties were eliminated ? Mr. Giddings. I am referring to the different precincts where the amended return was made. The Chairman. In the election return I understand there were 10 counties, the votes of which were not counted at all. Mr. Giddings. No, sir; there were 10 precincts in Blaine County in which he claims he can go back of the election board. The Chairman. That it was the county board which eliminated the 10 precincts? Mr. Giddings. Yes, sir; that is a part of his defense. Our con= tention is that you could not go back of that action. Mr. Oglesby. I have not read the record, and I do not know what your contention is along the line which you have just suggested now. Was there any other objections made to keeping the records of these votes which you contend should not have been counted, or do you claim that because of the failure to enforce this law by reason of the intimidation to which you have referred, that the entire number of votes of the precinct should be thrown out ? Mr. Giddings. The latter is our contention. Mr. Oglesby. That is, you have not made any attempt ? Mr. Geddings. We could not keep such a record. Mr. Rogers. May I ask a question right there, Mr. Giddings ? Mr. Giddings. Certainly. Mr. Rogers. I want to ask, do you charge directly in your brief or by means of testimony that this warning circular letter was sent out either by the contestee or by his authorized agents ? Mr. Giddings. Yes, sir. Mr. Rogers. Can you refer us to the particular part of the record where that is charged ? Mr. Giddings. It is set forth — in the cross-examination of the witnesses introduced in behalf of the contestee these facts appear: First, that the party who sent this letter out, Homer N. Boardman, had been the campaign manager of the contestee in the previous campaign; that after being his campaign manager in the previous campaign, he was selected as United States attorney for the Western District of Oklahoma; that the contestee is in no position to claim that while he might accept the fruits of what these circulars brought to him, that he can reject them at the same time. In other words, that he got the benefit of that intimidation, which was particularly to his benefit, and he can not stand in the position of disclaiming that he received that benefit, and at the same time accept it before this committee. Mr. Stafford. I believe that we are agreed that the contestee swore he had no knowledge of the circular being sent out. Mr. Giddings. Yes, but he can not take the benefit of a thing like that and then reject that which comes as a necessary consequence of it. I will show you by authorities that where intimidation is prac- ticed, the fact as to whether the contestee was a direct agent in the using of it does not make any difference; if it was in his benefit, he can not complain. 8 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. In this election' there were about — I do not quote exactly, because I am trying to take up as little time as the grave matters involved in this case will warrant — there were a little over 48,000 votes cast for the two parties in this contest. Upon the face of the returns, Mr. Morgan had a majority of 663, or a plurality over Mr. Carney, his nearest competitor. It is evident there that with such a large vote it would not take very much fraud, it would not take very much intimidation to change the results. I take it that those things which are admitted in the answer of the contestee do not need proof; that we may go to the bat in this case with the pleadings as they are, and with the admissions as they are in the record. There are admissions in this record of a number of illiterate voters in each county in the district. There is an admission in this record that there were 1,740 negro voters in the district who voted. There is an admission, however, qualified in this way, that only so many in each precinct were disqualified by virtue of illiteracy. The contestee admits that in Oklahoma County there were 268 illiterate male negroes. In Blaine County he admits there were 82 — that is on page 15 of the record; in Canadian County he admits there were 34 illiterate male negroes; in Custer County there were 13 illiterate male negroes, and so on. Now, then, I come to these exhibits, and if possible I would like at first to get your undivided attention upon them, because they are the storm centers of this contest. You will find them beginning on page 8 of the record. It was the contention of the contestee before, and I suppose it is yet, that this Exhibit A on page 8 of the record, the so-called grandfather law of Oklahoma, was violative of the righls of certain citizens of Oklahoma, particularly of the negro race, in that it denied or abridged their rights. That law says : No person shall be registered as an elector in this State or be allowed to vote in any election held herein unless he be able to read and write any section of the constitu- tion of the State of Oklahoma; but no person who was, on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, and no lineal descendant of such person shall be denied the right to register and vote because of his inability to so read and write sections of such constitution, Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section it the time of registration provided registration be required. Should registration be dispensed with, the precinct election officers when electors apply for ballots to vote. That was an amendment to the constitution of the State of Okla- homa, section 4a of article 3. The Chairman. Suppose you explain the meaning of that; give us a full explanation of that clause, because, while it may be familiar to gentlemen of some States, it is not familiar to all of us. Mr. Giddings. Now, as to the first section, down to the semi- colon after the word "Oklahoma" there can be no question but what the States in their sovereign capacities have the right to pre- scribe an educational qualification test for voters. It has been uniformly held by all States and courts that it is in the province of the States to so prescribe, and that has been so uniformly held that it is no longer an open question, and I do not suppose that the contestee will contend that it is. So far the law is admittedly valid. CONTESTED ELECTION CASE OE CARNEY VS. MORGAN. \j Then we come to the provision beginning — but no person who was, on January 1, 1866, or at any time prior thereto entitled to vote under any form of government or who at that time resided in some foreign nation, and no lineal descendant of such person shall be denied the right to register and vote because of his inability to so read and write sections of such constitution. The Chairman. The effect of that is that it has the opposite effect from its wording; it means that he must be a lineal descendant of a man who could vote ? Mr. Giddings. Yes, sir; and this provision, as Senator Bailey well set forth in his brief in the Beal-Guinn cases, does not deny anyone the right to vote; it does not abridge anybody's right to vote, it enlarges it. It gives others the right to vote, who, previous to the adoption of this clause, did not have that right within the jurisdiction of Oklahoma. I do not think that is an open question. It was the consensus of opinion of a number of constitutional lawyers with whom I have conferred about the matter. Then that provision, as the Chairman says, might be turned around to meet the contingency. I do not think that there is any question but what the purpose of the law was to disfranchise the illiterate negroes of my State, and I do not argue any other proposition. I do not see why such a law should not be a valid law. If a man can not read and write he is not worthy of the privileges and rights of citizenship, and ought not to be permitted to vote. That law was in full force and effect at the time of the last general election. As I have already called to your attention, it had been adopted by a majority of over 50,000 votes. Certainly it is an ele- mental rule of constitutional construction that all reasonable doubts are to be resolved in favor of constitutional provisions. Here was the attitude, and I will show you how it affected the result, if you please, by its effect upon the precinct election officials of my State, and in what position the precinct election officials of my State were placed, they were placed in between the Scylla of Federal prosecution on the one hand and the Charybdis of State prosecution on the other hand. You said to them, if you enforce the State law, made a mandate by 50,000 majority of the citizens of the State of Oklahoma, you violate the Federal law, and if you fail to enforce the Federal law, you violate the State law. Either way you have a prosecution, either in the State court or in the Federal court. So the Republican organization ingeniously hit upon the theory that if they could stamp into the memory of the precinct officials in the State, put the fear of Federal prosecution in them, and make them allow the illiterate negroes to vote at an election, where the people of the State had decreed that they were not permitted to vote, it would be to their advantage to do that. The Chairman. Were there any other officials running outside of candidates for Congress at this election? Mr. Giddings. Oh, yes; there were presidential electors and candidates for the Supreme Court of the State and the like. As Exhibit A, I have read you this election law, and I have made it as plain as I know how. Mr. Stafford. Before you go any further, I wish you would explain for the benefit of the members of the committee what the procedure 10 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. is under this law, assuming that it is valid, when the persons come to register, whether a certificate of registration is issued to them or not. Mr. Giddings. Yes, sir. Mr. Stafford. And what the effect of registration is when they have been accepted by the precinct boards as qualified electors, by having their names enrolled as qualified electors. Mr. Giddings. Under our law there are no registrations in the county precincts. Registration merely applies to the cities. Regis- tration in the cities is conducted through the medium of the county election board which appoints the precinct registration officials, who have the right, if they see fit, and who, under this law are designated as the proper officers to qualify to that extent, at the registration, those persons applying for certificates of registration. These cer- tificates are issued by registration officers, and I will show you that the same intimidation that was practiced upon the precinct election officials at the election was practiced on the registration officials when the negroes were seeking certificates of election. Now, then, the registration officials have the right to qualify, but that does not bar the precinct election officials at the polls from qualifying someone who may have escaped, through the medium of getting a certificate from the registration officials. So that we have a dual qualification, one that may be issued by the registration officials when the voter applies for a certificate, and the other may be given at the polls when he seeks to vote. Mr. Broussard. You mean if he fails to register that he is still permitted to appear before the commissioners ? Mr. Giddings. No. Mr. Broussard. I would like you to make that particular matter a little bit clearer. Mr. Giddings. No, if he registers and gets by some registration Erecinct officer, who does not test him up to the standard required y our — — Mr. Broussard (interposing) . He issues him a certificate ? Mr. Giddings. He issues him a certificate, and if he then appears before the precinct election board at the general election and offers to vote, then the precinct inspector has the right to further qualify him. Mr. Broussard. He tests his qualifications to see whether he was properly tested in the first instance ? Mr. Giddings. Yes, sir. Mr. Stafford. Is the precinct board that passed upon his qualifi- cations and registration the same board which passes upon his quali- fications at election ? Mr. Giddings. Not always; sometimes it is; sometimes it is not. Mr. Stafford. It is the same precinct, but the personnel of the board may be different at the election, or rather at the primary when they are obliged to register in the August preceding the general election ? Mr. Giddings. Yes, sir. Mr. Broussard. This only applies to cities ? Mr. Giddings. Yes, sir. Mr. Broussard. In the country conditions are different? Mr. Giddings. Yes, sir. Mr. Broussard. There they have no registration at all, have they? Mr. Giddings. They have no registration. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 11 Mr. Broussard. They are qualified on the spot? Mr. Giddings. Yes, sir. Mr. Broussard. They are tested by the election commissioners at the polls, are they ? Mr. Giddings. That is right. Mr. Taylor. Are they called judges or commissioners ? Mr. Giddings. They are called election judges, inspectors, clerks. We have an election inspector, an election judge, and an election clerk in each precinct. I desire now to call the attention of the members of the commit- tee The Chairman (interposing) . Suppose you go back again and discuss once more the point in regard to the conflict of the State and the Federal law, because I do not know how it strikes the minds of the rest of the committee, but that is something we will have to consider. Mr Oglesby. In that connection I would like to have you, in dis- cussing that question, to state how many judges, what judges have held the law constitutional, and what judges have held it unconsti- tutional. Mr. Giddings. Yes, sir. Mr. Oglesby. And also I would like to know if you can tell me what compensation is paid judges in your State, and whether the Federal judges are appointed from members of the bar in Oklahoma, and in general the comparative standing at the bar of the men who are on the Federal bench and those who are on the State bench. I do not mean in any political sense, but how they are usually regarded, and we will also get some information from the gentlemen on the other side in regard to that. The Chairman. That might be embarrassing. Mr. Giddings. As a lawyer practicing before those courts I would not like to draw a comparative estimate of the legal attainments of the Federal and State judiciary. My own opinion Mr. Oglesby (interposing). It may not necessarily mean that there is any distinction. Mr. Giddings. I will try to make this matter a little plainer if I can. The Federal Government had nothing to do with the adoption of the grandfather clause in the State of Oklahoma. It was adopted by the people of my State at the ballot box. It was sought to be applied to all voters within the State. The Supreme Court of the State, at the time of the rendition of the opinion in the Atwater case, the first case in which they upheld the validity of the grandfather clause, was composed of three judges who had been members of the constitutional convention of the State of Oklahoma, which drafted the constitution of Oklahoma, and two other men learned in the law. The judges who were in the Federal courts at that time had been appointed for life by President Taft, and I am inclined to believe, before the adoption of our constitution, or at least about that time. The supreme court of the State held this law valid. The Federal court held it invalid, and the case was appealed to the circuit court of appeals, which court in turn certified the constitu- tionality of that law to the Supreme Court of the United States from the circuit court of appeals, and if I may be presumed to say so at 12 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. this time we are expecting soon to have a favorable decision from the Supreme Court of the United States. Mr. Oglesby. Do you mean that the circuit court of appeals held the law to be constitutional ? Mr. Giddings. No; the circuit court of appeals, without passing upon the question, it being of a constitutional nature and of wide- spread importance, certified the question to the Supreme Court of the United States for an opinion thereon. Mr. Oglesby. Without passing on it ? Mr. Giddings. Without passing on it, yes, sir. Mr. Rogers. At this point I would like to ask what, in your opinion, is the bearing of the constitutionality of this grandfather clause upon our examination of this particular question ? Mr. Giddings. It has this bearing upon it: Of course, if this law is invalid and unconstitutional, then these negroes were entitled to vote, and these others were entitled to vote, and the contest must therefore fall to the ground. The Chairman. When do you expect to have a decision from the Supreme Court of the United States on that question ? Mr. Giddings. I was talking to Senator Bailey yesterday and he anticipates an early decision. It seems that one of the judges, Judge Lurton, has been absent for some time on account of illness, and they have been awaiting his return. The Chairman. When was it argued before the United States Su- preme Court ? Mr. Giddings. Six or eight months ago. Mr. Rogers. Can it be that a man's seat in Congress must hang suspended between heaven and earth, perhaps for years, while a statute is being construed by the highest courts ? In other words, this committee has the full right to decide for itself whether or not that law is constitutional ? Mr. Giddings. Yes, sir. Mr. Rogers. And upon that decision by this committee depends the validity of the law in question ? Mr. Giddings. My contention with regard to that is this, that this law is presumed to be constitutional; and if it is presumed to be con- stitutional until overturned, beyond a reasonable doubt, that that is. the constitutional construction placed by the Supreme Court of the United States upon such provisions, and that, if not binding upon this committee, at least the decision of the supreme court of the State of Oklahoma upholding the constitutionality of this statute must be greatly pursuasive upon the committee — certainly much more so than the decision of an inferior tribunal of Federal origin. Mr. Broussard. Did not the Supreme Court of the United States pass upon a similar provision of the constitution in Louisiana ? Mr. Giddings. No, sir; I do not think so. Not a similar provision. Mr. Broussard. I think the so-called grandfather clause in the North Carolina constitution, with a slight deviation, is practically the original grandfather clause in the Louisiana constitution. My recol- lection is that there were cases taken to the Supreme Court from Louisiana. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 16 Mr. Giddings. I do not think this question has even been decided by the Supreme Court of the United States, that is, a question on all fours with this particular question. Mr. Broussard. I think it was not as to the right of voting, or as to the qualification to vote, but as to the qualification for becoming a juror under our State laws, which require a man to become an elector in order to serve on a jury. I think there is a decision on that ques- tion where the Supreme Court upheld the right of the State to so qualify suffrage as to permit the grandfather clause to operate under the Constitution of the United States. Mr. Giddings. I think that might apply; but there would be a cer- tain distinction between the qualifications of a juror and an elector, where a juror was sitting at the State courts, and where the elector was voting for a State and National ticket. Mr. Broussard. I recognize that. Mr. Giddings. It is my contention that this tribunal sits as a judge of the law as well as a jury trying the facts, and it has the right to pass upon the validity of this law, and it ought to take the decision of the supreme court of the State, rendered in three different opin- ions, one of them being in the brief of the contestant, upholding the validity of this act. Now then, I want to take up another question, and I ask the particular attention of the members of this committee to this circular scattered throughout the second congressional district, of Oklahoma, and I want to ask any fair-minded man, carefully considering this circular, if it is sufficiently connected with this test, can escape the proposition that it is ipso facto intimidation. This is what the circular says : TALK IT OVER WITH YOUR WIFE, MR. ELECTION OFFICIAL, AND REMEMBER THAT YOU WILL GO TO THE PENITENTIARY. If you violate the Federal election laws, and not Gov. Cruse nor his brother, Attorney A. C. Cruse. You will remember that the latter defended Beall and Guinn, who last year were convicted in the United States Court at Enid and sentenced to the peni- tentiary for violating the Federal election law, and the State paid the attorneys in these cases about $14,000 for defending these two men. This averages about $7,000 per case. It is not likely that the people of this State, already overburdened with taxes, will be willing to continue to pay out $7,000 every time an election official violates the Federal statutes. The people are not sufficiently anxious to enrich the governor's brother, Attorney A. C. Cruse, besides what's the use? Where conviction is sure, there is nothing gained by paying out big sums of money for attorney feee. That is to say, there is nothing gained by anyone but the attorney. Now, to every precinct election official — and this is undenied in these pleadings — wherever the negroes voted, that warning circular, in conjunction with the opinion of the United States attorney for the Western District of Oklahoma was sent. It was not calculated to stiffen the backbone of a man to send him a circular telling him if he upheld the dignity of the State laws he would go to the Federal penitentiary, where he is working for $2 a day. They tell him to go and talk it over with his wife, and then the contestee comes here and says "that it did not prove that I did it. I have got my fingers crossed; I had nothing to do with it. It is true I may accept the rewards of the intimidation, but I reject any statement that it was done in my behalf." 14 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. This is the letter which was sent out with that circular. You will notice it is under the heading of the Department of Justice. The letter says : Department of Justice, Office of the United States Attorney, Western District of Oklahoma, Guthrie, October 31 , 1912 . Fred A. Wagoner, Deputy County Attorney, Chandler, Okla. Dear Sir: I have your letter asking whether at the coming general election the J>recinct election officers can enforce the law commonly termed the "grandfather aw," and escape punishment therefor in the Federal courts on a showing of good faith in enforcing said law. That is to say that a man can not escape in the Federal courts, notwithstanding he may act in good faith; notwithstanding he may be doing what he considers his duty as an election official; that notwithstanding those things, you may put stripes upon him. Then the letter goes on to say: I presume your question has arisen on account of the apparent conflict between the decision of the supreme court of the State of Oklahoma and the United States district courts for the eastern and western districts of Oklahoma on the constitu- tionality of the law, the State supreme court having held the law constitutional, while the two United States courts in the State have held it unconstitutional and void. It must be borne in mind that this all involves purely State metters, as well as Federal matters, and in considering the same these two phases of the law must be kept in mind. 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 this opinion is directed solely to the Federal question involved — that is, the application of the grand- father law to negroes who, on account of race, color, and previous condition of servi- tude, are not permitted to vote without submitting to certain tests of reading and writing — nor shall I argue the question of the constitutionality of the law, for the rea- son that, after very extensive arguments by some of the best legal talent of the State, it has already been in positive terms declared unconstitutional by the two United States district courts in this State, which decisions are now the law_ of the State as far as the Federal questions therein involved are concerned, having never been reversed or modified. Knowing this, that the Federal courts having jurisdiction over the entire State have declared the law to be unconstitutional and of no force and effect, the question arises whether the precinct election officers can enforce it against negroes on account of their race and color, and then when prosecuted in the Federal courts for doing so defend the prosecution on a plea of good faith in enforcing the law. That is to say, that notwithstanding the precinct election official may take an oath that he will uphold the laws of his State as a precinct election official, that that oath under the law of the State shall not protect him in the Federal courts from Federal prosecution. The letter goes on to say: The question of good faith must be determined with reference to the decisions of the courts upon the subject and having jurisdiction thereof so there can be no good faith in acting in direct conflict with the known decisions of the courts, although in the absence of any such decisions such defense might be made. In the case against Beall and Quinn, who were convicted in the Federal court at Enid, in 1911, for violating section 19 of the Federal Criminal Code in enforcing the grandfather law at the general election in November, 1910, the defense of good faith was attempted, although without success, as the verdict of the jury disclosed. However, in that case at the time the act was committed which caused a prosecution— that is, in November, 1910— no Federal court had passed upon the law. Furthermore, all precinct election officers are quasi-judicial officers in a quasi- judicial capacity, and being officers of inferior and restricted jurisdiction are all bound by the decisions of the Federal courts declaring the law unconstitutional CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 15 when applying the same to negroes desiring to vote for Members of Congress and electors for President, and the defense of good faith will not protect them from prose- cution for enforcing the law in direct conflict with the Federal decisions. Respectfully, , Homer N. Boardman, United States Attorney. Now, that circular beginning, "Talk it over with your wife, Mr. Election Official," and that letter of the United States attorney were inclosed in the same envelope by Mr. Morgan's ex-campaign manager, who subsequently became United States attorney, and that matter was transmitted to each and every precinct election officer within the second congressional district where there were negroes who claimed the right to vote. Mr. Stafford. You just stated that this letter which went with the circular letter was inclosed by the United States attorney. Mr. Giddings. No; I did not mean to say that if I said it. It went to every election official, a letter signed by the United States attorney and this certificate. There is no denial in this record by the United States attorney, who was living at the time this record was made, at the time the testimony in this case was taken, and who is still living, so far as I know, that he did not sign that letter and did not authorize its publication. The Chairman. Was there any contention to that effect; is there any contention that there is any doubt about that letter being signed by the United States attorney? Mr. Morgan. I think there is no doubt that Mr. Boardman wrote that letter, but there is no evidence that he circulated it. The Chairman. I just wanted to find out if there was any conten- tion in regard to the letter being signed by the United States attorney. Mr. Giddings. Evidence that it was to be circulated was in this letter. Mr. Morgan. Not that Mr. Boardman circulated it. Mr. Giddings. We contend he authorized its circulation. The Chairman. We will hear you on that. Mr. Rogers. Just before you pass on to that, I would like to ask you a question. Do you stand with the law as disclosed in the last para- graph of this letter, and do you think that is an exact statement of the law ? Mr. Giddings. No, sir, I do not. I do not think if a man acts in good faith, if he has no criminal intent, that the humane American decisions ever in any conceivable way would authorize a conviction and stigmatize him as a criminal. Mr. Oglesby. You do not mean to say that ignorance of the law would excuse him ? Mr. Giddings. No, sir; but I say if a man acts in good faith in the enforcement of even an unconstitutional law you can not convict him. If he acts in good faith in the enforcement of a State law, that the defense of good faith ought to uphold him, because it is certainly an anomaly that in free America a man should be punished as a criminal for acting in good faith. I do not think that is the humane side of the jurisprudence of this country. Mr. Stafford. Will you not inform the committee what officers were to be elected at the general election in November, 1912, when Mr. Morgan and Mr. Carney were candidates for Congress? 16 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Giddings. If you will look on page 140 of the record you will find the list set out. These were the officers who were voted for: Corporation commissioner; presidential electors, State at large; United States Senator; Congressman, State at large; justice of the supreme court of the first district; judge of the criminal court of appeals of the seventh district; Representative in Congress in the second district; State senator in the sixteenth district; and repre- sentative. There were also initiative and referendum questions to be voted on in addition to the candidates for the offices which I have named. Mr. Stafford. It is highly probable that some person connected with these other officials besides the contestee might have been sponsor for this matter ? Mr. Giddings. You do not mean the Democrats of my State? Mr. Stafford. I mean on the Republican ticket; might have been responsible for this letter ? Mr. Giddings. They might have been; they are all on the same ticket, working together in harmony with each other. Mr. Stafford. I have known of many times when I have not been working together with the county officials. Mr. Giddings. It is too plain to need any further statement. The Chairman. Suppose you argue this point; suppose this com- mittee should find that Mr. Morgan did not know anything at all about that circular having been issued. What argument have you to offer fixing, as you say, the responsibility for the acceptance of the results of it? Mr. Giddings. The first proposition, as I have tried once or twice The Chairman (interposing). We are not finding anything now; suppose we assume Mr. Giddings (interposing). I say this committee does not have to find that, and yet there is not a word in this record, from the time of the publication of these circulars and their being sent to the election officials, that he ever opened his mouth in protest against it, and he was the direct beneficiary of it. Not only that, but it is immaterial Mr. Stafford (interposing). Before you proceed, I would like to ask you this: Were there any contests in regard to these other can- didates arising out of the facts which are the basis for your contest here ? Mr. Giddings. Both negro districts in Oklahoma have contests be- fore this committee. Mr. Stafford. I mean in regard to the State and county officials. Mr. Giddings. The State went Democratic, and there was no need of it. Mr. Stafford. In regard to the county officials, was there any contest pending, or was there any developed by reason of this ? Mr. Giddings. No, sir — yes, there was in Blaine County; there were some contests there growing out of this, it being contended that the county election board threw out some precincts there to which reference was made by the chairman. Mr. Stafford. Was that passed upon by the courts, or was it dropped ? Mr. Giddings. I think the courts held they had no authority to throw out the boxes; that the county election board was acting in a CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 17 ministerial capacity, and that while the precinct officials had quasi- judi ial functions, that the others did not. The Chairman. Mr. Giddings, there is something in this record and in the briefs of both parties as to the claim by Mr. Morgan of more votes than he is credited with. Mr. Giddings. I am coming to that. I have called your attention to the law and to the opinion of the United States attorney and to the warning circular, and I now want to call your attention to an amended return made by the election officials, nearly every one of the officers, after the election. I did not set out all the returns in the testimony for this reason, that it would have made a very bulky record, and I thought that one return would be sufficient for the record as a sample of all the returns amended or rather thought to be made. This is the amended return, as set out on page 9 of the record: State of Oklahoma, Oklahoma County, ss: , of lawful age, declares that at the general election held in the State of Oklahoma on the 5th day of November, 1912, he was the duly qualified, appointed, and acting of Precinct, ward, Oklahoma City, said State. That an election was held in said precinct on that day; that intimidation was used against the election officials in said precinct, and threats of criminal prosecution made to the end that many negroes who would be illegal voters might vote; and that at said election in such precinct so many negroes did vote under the above-mentioned cir- cumstances that it is impossible to determine what the vote and result in said precinct would have been had not such facts and conditions existed as above stated; and this affiant asks that this amendedreturn be made a part of the original returns from said precinct, and that said vote be not canvassed and the result in said precinct be not declared. That amended return was made by all the precinct election officers after the polls had closed and after the returns, as originally made by them, had passed out of the hands of the precinct officials into the hands of the county election board. The courts have held, particularly in Massachusetts, that a pre- cinct election official may amend his return previous to the time it leaves his hands, and if it is sought to be amended after that in regard to that there seems to be some difference of opinion among the courts. Mr. Stafford. How soon after the election were these amended certificates made ? Mr. Giddings. Immediately afterwards; just a few da}^s after- wards. I am now going to show you, Mr. Chairman, what effect this thing had upon the election officials in this district. I say that that circular letter was an infamous document, and that it had no business being sent by anybody to the election officials of my State, and that by no species of reasoning can such an instrument be justified or allowed in any jurisdiction. I am going to argue the proposition later as to whether Mr. Morgan had anything to do with this or not, as to whether or not it can be charged to him legally, if not morally and personally. Take the first point, Mr. Chairman. I am going to run through this printed testimony in the case. First I want to take up the testi- mony of W. I. Davis, on page 31 of the record. He testified in regard to Dewe Township, in Oklahoma County. 46996—14—2 18 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Q. Are there any negroes there in that precinct?- — A. There is. Q. Were there at that time — the general election of 1912? — A. There was. Q. Can you approximate about the number of negroes in that township at that time over the age of 21? — A. Over the age of 21 — male? Q. Yes; male. — A. No; I don't know how many male negroes there is in Dewe Township. Q. Do you know about how many?-— A. Well, my best judgment, I would say that there is about 60. Q. Is there more than one voting box in Dewe Township? — A. No, sir. Q. You may state what effect, if any, the receipt of those notices had upon you in the enforcing of election laws of the State. — A. They made me afraid to enforce the grandfather clause. Then, in the next answer, at the top of page 32, the witness said: A. There was about — there was 48 negroes voted in the general election, I believe; there was quite a number, but I am not able to state how many that voted by filing with me what they called qualifications. And there were some admitted they could not qualify, and I told them I would not prevent them from voting; that is, I mean to say that there was a few that did not pretend to try to qualify. There was two that tried to qualify and failed. I told them — they asked me then for permission to vote — I said I won't tell you you shan't vote, and therefore I was afraid to interfere with them voting. And then there were presented some specimens of the hand- writing of those negroes. Then, as set out on page 32 of the record, this testimony was given : Q. I will ask you if those are specimens of the handwriting of negroes, commonly called colored people, who voted in Dewey Township at the last general election? — A. They are. Q. If it had not been for the receipt of Exhibit A and Exhibit B would you have permitted those negroes to have voted under the laws of this State? — A. I would not. Q. Mr. Witness, after you made your original return to the election board from the general election of November, 1912," did you file with the secretary of the election board of Oklahoma County any amended returns? — A. I filed with the secretary of the election board an affidavit setting forth that under the laws of the State there had been illegal voting in that precinct. Now, gentlemen, I want you to listen to this: Q. Without the number of illegal votes in that precinct at the last general election could you determine what the result would have been of the votes for the candidates ior Congress from the second congressional district of Oklahoma, to wit, John J. Carney and Dick T. Morgan?— A. No; I could not. Q. Do you know what were then and there, to wit, at the last election, the politics of these negroes? — A. How is that? Q. Do you know the politics of these negroes who voted there? — A. I do. Q. What were their politics? — A. Republican, politically. Q. Was there any registration of voters in your township, to wit, Dewey Township, previous to the last general election? — A. Registration? Q. Yes. — A. No; there was no registration. Now, then, Mr. Chairman, I call your attention to further testimony, on page 35, where that point is further amplified by the testimony in that regard. He had received this letter and knew that Federal prosecution was inevitable, and he was a man of family, and he knew what had previously happened, and he said, in answer to a question: A. But the fact that there was a United States attorney's name to this and that two men had been prosecuted in Oklahoma and convicted for attempting to enforce this law was the reason why I let men vote there who I did not consider had given me the proper qualifications. Then, farther down on page 35, this question was asked: Q. Mr. Witness, you were asked if the clerk out there and the other election officials protested against giving these negroes ballots. I want to ask you if you do not know CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 19 as a matter of fact the reason they did not protest was on account of these very cir- culars?- — A. That is the reason I did not protest. Q. Don't you know, as a matter of fact, that is the reason the other Democratic members of that precinct election board did not protest? — A. Jo the best of my knowledge, "I believe that is the reason. Q. What was the mood of these negroes when they came to the polls that day? Were they in a sullen and angry mood or like ordinary voters? — A. They showed a disposition to be considerably wrought up over the fact that they thought the grand- father clause, as it is termed, was being pushed on them illegally and that they was being discriminated against. Some of them was sullen and wrought up considerable. Q. Mr. Davis, state what, if anything, you saw that led you to believe these negroes were wrought up? — A. One of them wrote my name — my name and address — right in my presence and said something to another negro. I didn't exactly understand all he said, but part of it was that we see about this matter. Q. Did they threaten you with any physical harm? — A. No; I wasn't threatened to my face — not personally. Q. Now, this occasion when this negro took your name — had you just turned down any negro then for failure to read and write — failure to go through the tests? — A. No, no; I hadn't refused any negroes to vote, the right to vote at all. That is in Dewey Township. Now, take the next witness, Mr. T. J. Clark. Mr. Stafford. What county is this you are referring to now? The Chairman. All these references, as I understand it, are to occurrences in Oklahoma County ? Mr. Giddings. I have simply taken this testimony to illustrate the effect of those threatening circulars upon the election officials. Now, in the testimony of Mr. T. J. Clark, on page 37, this testimony occurred : Q. What effect, if any, did they have upon you in the enforcement of what is com- monly called, or termed, the grandfather clause of the State? — A. No; I didn't have anything to do with the enforcement, but I was afraid that we would have trouble. We didn't only get them notices, but we got others — I got other notices that there would be trouble there. Q. What were those other notices? — A. The night before election one of the count- ers came to me and told me — he said, I wish I could get off this board; there is going to be trouble there tomorrow." Q. Did you fear trouble there the next day? — A. Yes. Then, on page 38 of the record there was this testimony: Q. Do you know how many negroes over the age of 21 years — male negroes — resided and had resided in that township for over a year previous to the last election? — A. No; I could not say just how many. Q. What is your best judgment of the number? — A. That man that polled the township two years ago told me there was 88 . Q. What is your best judgment? — A. There is probably somewhere between 55 and 60. Now, then, Mr. Chairman, we come to the testimony of Lewis Vorel, who was located in one of the large negro precincts. On page 41 we find this testimony : Q. Approximately state how many negroes there are in your precinct, male, over the age of 21 years, if you know? — A. Well, the way I have of knowing is from the way they turn out at elections, and there is about two-thirds negroes in our township; of voters we have right here 120 negroes and 60 odd whites. Q. How many of these negroes presented themselves at the election in November, 1912, if you know, to vote? — A. Why, I think right near the number I stated, 120, as near as I remember. And then he goes ahead and tells how he did not enforce it. Then on page 42, in speaking of this circular letter, this question was asked: Q. What effect, if any, did it have upon you? I mean in the performance of your official duties? — A. Well, I did not like to take the responsibility on the face of that, 20 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. and we handled the election in a different way from what we would have if that hadn't come up. Q. In what way did you handle it different? — A. We let 14 or 15 negro voters cast their ballots on their own responsibility that we would have denied, they claiming and not being able to read and write. Q. How many negroes, if you remember, did you give the tests to that day? — A. Well, not very many; not over 10 or 15, outside of these. We had been acquainted with those parties, and they had been refused ballots at previous elections, two years before. Now I come to Luther Township, and quote from the testimony of Mr. B. B. More, who testified that he was clerk of the election, and then speaking of Exhibits A and B, he was asked this question: Q. Do you know what effect, if any, the receipt of that Exhibit A had upon the election officials of your township as to the enforcement of the law commonly known as the grandfather clause? — A. We let people vote that we would not otherwise have done if it had not been for that warning. Q. For that reason? — A. Well, we thought we would get in trouble with the Federal law if we did not. Q. How many negroes over the age of 21, male negroes, then and there resided and had so resided over one year previous to the last general election, if you can approxi- mate?— A. About 130— about 120 or 130. Then, at the bottom of page 47, this testimony was given: Q. If it had not been for the circular letter you have described would the tests have been required in your township? — A. I think I would. Now, Mr. Chairman, with all due deference to Mr. Morgan, I call attention to the testimony on page 50: Q. When these negroes appeared there to vote did any of them ask in particular for a ballot to vote for any particular candidate? — A. They did. Q. For whom? — A. They asked me to give them a ballot. Said they wanted to vote for Dick T. Morgan. I told them I didn't have any special Dick T. Morgan ballots, but I could give them a national ballot and they could vote it for whoever they pleased. Mr. Stafford. How many ballots did you have ? Did you have a separate ballot for the national ticket, or just one ballot for all of them? Mr. Giddings. It was all one ballot. Mr. Morgan. County ticket was separate. Mr. Giddings. Yes; the county ticket was separate. The Chairman. Did you have a blanket ballot ? Mr. Giddings. You either vote straight or you vote for the men you want to vote for. The county ticket was separate from the State and national ticket. The Chairman. But it is all one ballot? Each particular party has a ballot ? You have one ballot for each party ? Mr. Giddings. With all the tickets on it ? The Chairman. With all the tickets on it. Mr. Giddings. That is, for the State and national tickets at the last election, if I remember correctly. Mr. Morgan. That is right. Mr. Giddings. For the county ticket we had a separate ballot. They could enforce the grandfather clause on the county ticket, because they were not standing in the shadow of a Federal prosecu- tion. The Chairman. My point is this: There was only one ballot put in the box, and the man had to vote — the State and Federal officers were on one ballot and the county officers were on another ? CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN. 21 Mr. Giddings. Yes, sir. The Chairman. So there were two ballots ? Mr. Giddings. Yes, sir. The Chairman. For instance, a man could go in there and vote the State and Federal ticket and not vote the other ticket if he did not want to ? Mr. Giddings. That is right. The Chairman. And I could vote two of them if I wanted to ? Mr. Giddings. Yes; you could vote either one you wanted to, either the State and national ticket, and you could vote for the county officers on another ticket — on another ballot. Mr. Oglesby. Was the grandfather clause enforced, so far as the county ticket was concerned ? Mr. Giddings. Just as far as we could enforce it. Mr. Oglesby. You do not claim there was any attempt at intimi- dation with regard to that ? Mr. Giddings. There could not be. Mr. Oglesby. I understand that, but I thought, perhaps, there might have been some confusion in the minds of the election officers, as to whether or not they might have been afraid of prosecution. Mr. Giddings. We have tried to get men of as sound discretion as we could, and the fact that they were election officers indicates that they were considered men of discretion. Mr. Oglesby. You think that the election commissioners under- stood the distinction between the county and State tickets ? Mr. Giddings. Yes, sir; we tried to advise them. I had communi- cated with every one of them. I was the attorney for the Democratic State central committee. Mr. Oglesby. Is there any tabulation here in the record which would show the difference between the vote cast on the State Federal ticket and the vote cast for the county ticket ? Mr. Giddings. I think there is something that would indicate it to some extent in some of the exhibits of Mr. Morgan. You will note on page 90 the vote for the corporation commissioner. Mr. Morgan. On page 181 there is a tabulation of all of Blaine County, showing that there was no difference in the vote. Mr. Stafford. You stated that you advised the various officials in your capacity as attorney for the Democratic State central com- mittee ? Mr. Giddings. I did. Mr. Stafford. As to what ? Mr. Giddings. I advised them, so far as the county ticket was concerned, they did not stand in danger of Federal prosecution — that they were enforcing a State law and that they should enforce it to the letter. Mr. Stafford. What did you advise them as to the national ticket ? Mr. Giddings. I advised them that in my judgment the law was valid; but I would not advise them to take the chances of going to the penitentiary — that that was with them. Mr. Stafford. You sent that notice to all the election officials? Mr. Giddings. Those with whom I conferred, and I said I would not advise any man to take chances of a Federal prosecution, with a partisan court and a partisan judge. 22 CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN, The Chairman. Did you sit down and send that notice out to all those officials ? Mr. Giddings. My telephone was busy for several days. I do not believe I put that advice on record. I did not want to get tied up in the Federal court. I advised the officials who had to do with the Federal ballot, the National ballot and the State ballot that they ought to be careful, and it was put up to them whether or not they should decide to enforce that law; but I told them I would not ad- vise them to take any chances. Mr. Stafford. Did your committee send out a circular letter to any of your party associates, expressing your opinion along those lines ? Mr. Giddings. All I know is that the chairman of the State com- mittee consulted with me, and we consulted with the governor, and the governor, from the stump, advised them to enforce the law with regard to the counties. Mr. Russell. May I ask you a question there for my own in- formation ? Mr. Giddings. Certainly. Mr. Russell. As I understand it, the record shows and you claim that about 900 negroes voted in that district ? Mr. Giddings. One thousand seven hundred and forty. Mr. Russell. Is there any effort to show by the record in the case how many of them were disqualified under the grandfather clause ? Mr. Giddings. By the best evidence of which this case is suscept- ible, there was. Mr. Russell. Is it the contention that there are enough who voted to have defeated him ? Mr. Giddings. Yes, sir; to change the result. The good votes were there intermingled with the bad votes, and without that the result would probably have been different. We have the records here of about 900 more negroes which are not in the printed record, and we did not put them there because it would have made the printed record very bulky. I took the deposition of the secretary of the county election board and I proved how they had registered. I took the stubs of the election where they voted and their politics, and then I further fastened the responsibility upon the contestee, so far as possible, by showing that there was this intimidation in every one of the precincts where the negroes voted. Mr. Russell. You contend, first, that there were enough illegal voters, if that law is valid, who voted for Mr. Morgan to accomplish his election, and if there were not enough illegal voters, that it was done by intimidation ? Mr. Giddings. Yes, sir. Mr. Rogers. You say there were 1,700 negro voters? Mr. Giddings. That is admitted in the pleadings. Mr. Rogers. Is there any attempt to show what proportion of that number were illiterate ? Mr. Giddings. There is the admission of about 400 who are illiterate. Mr. Morgan. Not of the voters, but the illiterate voters in the whole district. Mr. Giddings. You take up each county, and you admit that there are so many illiterate voters in this county. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 23 Mr. Morgan. Not those who voted. Mr. Stafford. Formerly you said there were 1 ; 740 illiterate voters, and now as I understand you, your statement is, in response to a query by Judge Russell, that there are about 1,740 colored voters in the entire district ? Mr. Giddings. Oh, no. Mr. Rogers. Do you contend that there are more than 1,740 colored voters ? Mr. Giddings. There are, unfortunately, more than that, but the record does not show how many. I guess there must be more than that in the three big negro counties in this district. There is no denial of that fact in this answer and cross petition. I think the alle- gation is that there were 1,740 voters. Mr. Rogers. Does that include any who may have qualified under the grandfather clause as being capable to read and write ? Mr. Giddings. I think it does. Mr. Rogers. What I am trying to get at is, what the evidence in the record shows in regard to what proportion of them are illiterate. Of course a negro man votes if he is literate, even under this law ? Mr. Giddings. I do not agree with that. I do not believe the negro was ever granted the right of franchise. Mr. Rogers. That is in regard to the fourteenth amendment suggestion ? Mr. Giddings. Yes. Mr. Stafford. Assuming the constitutionality of the fourteenth amendment, that amendment having been adopted, and it is not in issue, and that the grandfather clause Mr. Giddings. I do not assume that; I am not waiving any point I make in this brief, or any contention I have made at any time. Mr. Stafford. I am trying to put a hypothetical question. Mr. Giddings. I thought you supposed I was waiving that point. Mr. Stafford. No, sir. I do not want to take any such unfair advantage of you. I say, leaving out of consideration your position as to the constitutionality of the fourteenth amendment to the Consti- tution of the United States, and assuming that the grandfather clause of the State constitution is alone applicable and is constitutional, do you still contend that there are not some colored voters qualified under that grandfather clause to vote ? Mr. Giddings. I am going to try to make that plain. I contend that the vote is so intermingled with the bad vote that you can not tell what the result would have been without that vote. I am going to show you that the election has not been free and equal, and it ought to be declared invalid and void. We are here to establish a principle, the principle of the right to govern ourselves without Federal interference. Mr. Russell. Is there any case pending in the Supreme Court of the United States to test the validity of the fourteenth amendment to the Constitution of the United States ? Mr. Giddings. No, sir. Mr. Russell. That is not involved in the case now being consid- ered? Mr. Giddings. No, sir; it is not raised in that case. 24 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Stafford. Then the Supreme Court has upheld the constitu- tionality of the grandfather clause? Mr. Giddings. Yes, sir. Mr. Stafford. Entitling colored men who could quality under that to vote? Mr. Giddings. It has upheld it, in so far as it does not discriminate nor abridge the right of the citizens to vote, but the question of the validity of the legal adoption of the fourteenth and fifteenth amend- ments was not even incidentally raised in any of those cases. Now, then, I have the testimony of Mr. Clark, which I have already read to you. I just want to read you a few excerpts and then I want to take up the law and see if I can not demonstrate that this intimida- tion is sufficient to invalidate this election. Taking Mr. Clark's testimony at page 47, I do not think the com- mittee ought to hold the contestant to a hide-bound mathematical rule that he must prove by some system of mathematics that with this vote out he got more than the contestee, but if the result is so sur- charged with fraud and intimidation, it seems to me it is up to the contestee to show that the intimidation had no bearing upon the result; that the burden is upon him, and that he is entitled to his seat upon that, or at least that the election be declared invalid. Mr. Oglesby. I want to say for one that I regard this latter, this attempt to intimidate, as being most reprehensible, but I do not think it ought to be charged to Mr. Morgan unless there can be some way in which he can be connected with it; but no matter how reprehen- sible it is, what I would like to have you state to us is to have you show to us in some way how your client's interest is adversely affected if the result of this intimidation did not operate to change the result of the election. Mr. Giddings. Of course if it did not operate to change the result nobody is adversely hurt and the contestant can not recover, but it is presumed to have that same sort of an effect. Mr. Oglesby. How can we get at that unless you show by some kind of tabulation of the votes cast that illiterate, disqualified voters were permitted to cast their vote? Mr. Giddings. I see your point, Mr. Oglesby. I am getting at it as fast as I can. I am trying to get at it. I have already shown you about 250 in this record, and I have only been over two or three pages of it. Mr. Oglesby. I do not mean to disconcert you in your argument, but I have here a memorandum to ask you this question, as to whether or not you had attempted to make any tabulation of the illiterate voters whom 3^ou claim voted, but who should not have been permitted to vote, so that we can have some idea as to the extent to which those votes made a difference. Mr. Giddings. I am coming to that. I call your attention to the fact that all the record is not here; that is, that the record of all the negroes who voted there, although it is in the typewritten record, was not incorporated in this printed record, because it would have made a very bulky record. Mr. Rogers. You are taking out these negroes simply because they are negroes, regardless of whether they can read or write. Mr. Giddings. I am not doing that alone; I am also contending that this vote was so interspersed with the good vote, whether it was CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 25 the negro vote or the white man's vote, that you could not have determined what the result would have been without that illegal vote, and I will cite you authorities to sustain that proposition. Mr. Oglesby. Do you intend to confine your contention to that proposition ? Mr. Giddings. I have two contentions. My first contention is that enough illiterate negroes voted to change the result in favor of the contestant, and even if that be not so, that these illiterate people so voted in violation of the constitutional amendment, were so intermingled with the good vote in the several negro precincts that without that vote you could not have determined what the result would have been. Mr. Stafford. If a white man would cast a vote which would be disqualified, therefore you would eliminate all the white men's votes and vitiate the election completely? Mr. Giddings. How are you going to get at the justice of the entire process ? Mr. Oglesby. You claim that the evidence is in the record and we. can dig it out and ascertain for ourselves how many of those votes were illiterate ? Mr. Giddings. I think so; if you take the typewritten record and the record here I think you will find that the intimidation was so general in its nature that this election was not a free and equal election. The Chairman. I think this is your contention: There is some law, I do not know how much, to uphold it, or where it is, which shows that there is a distinction between intimidation and fraud. In fraud you show the vote; in intimidation you show that a condition existed which precluded the possibility of a free election, and from that you come to the conclusion that there was not even a bad election, that there was no election. I think that is your contention. Mr. Giddings. I have tried to make that contention. I do not think I made it as clear as you have made it, Mr. Chairman, but I intend to support that contention with authorities in my brief. The Chairman. I am not arguing whether that is good or bad. Mr. Oglesby. There is this condition, as I understand it, that an intimidation which would prevent voters from voting, and therefore make it impossible to determine how many would have voted if they had not been intimidated, might vitiate the election, and here is a species of intimidation charged which was intimidation not against the voter, but against the commissioner, or the election official, which intimidated him to the extent that he permitted men to vote who it is now contended were not entitled to vote. If that is true, then it seems to me that there must have been some method whereby they could get an approximation, and they should present an approximation of how many of those people were permitted to vote and the record of the intimidation against the election officials; that is, people who should not have been allowed to vote, and my question is this: If this record discloses how many of those votes were cast which should not have been permitted to have been cast, and a count of those would show that enough of those votes were cast to change the result of the election, I am willing to go through the record to try to dig it out; but if the record does not disclose, or does not purport to disclose, the number who voted 26 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. who should not have been permitted to vote, a number which would not be enough to change the result of the election, I do not want to assume the burden of going through the record and digging those out. Mr. Giddings. I think I can answer that. Of course, I did not expect to take so much of your time in arguing this matter, Mr. Chairman. Mr. Oglesby. This is an important matter. I would be willing to do that amount of work if that work will produce the result. Mr. Giddings. I did not intend to take so much of your time, but if you will pardon me for saying so, Mr. Chairman, the time has been a good deal taken up by questions by the members of the committee. Mr. Oglesby. I think we understand that, and I think the atti- tude of the committee will be to give you all the time necessary to thoroughly argue this case. Mr. Giddings. I would like to call your attention to the rule laid down in Congress with regard to the matter of intimidation — a rule which has been followed at all times by the Democratic Members — and I think it presents my proposition with regard to intimidation. You seem to be patting the burden on me, while the burden clearly belongs upon the party for whose benefit the intimidation was used. Mr. Oglesby. I agree to that, and I think it will have a great deal of force if the intimidation operated to prevent men from voting whom you might claim were entitled to vote, because in that case it would be impossible to ascertain how many would have voted but for the intimidation. Here is a case where men voted who should not have been allowed to vote, because the election officers were intimidated. That number may be possible of ascertainment. Mr. Giddings. Suppose it is not? Mr. . Oglesby. If the record presents the facts which will enable us to make any approximation of it, I am willing to go through the record and ascertain it; but if it does not, I do not want to do all that work and then not get any result from it. Mr. Giddings. Suppose it does not show? It is pretty hard to get it on a mathematical basis. It would be pretty hard to do that. These negroes are let in there everywhere, and you let them all vote. Mr. Oglesby. If that is the case I do not want to expend any energy in that branch of the case. Mr. Giddings. I will give you a definite answer on it. I will try to disabuse your mind of that. The Chairman. These questions are not asked you to put you in any embarrassing position. Mr. Giddings. I understand that, Mr. Chairman. The Chairman. We want you to give us as full an argument as you can. Mr. Giddings. The law in regard to intimidation, as laid down in the Tenth A. and E. (E. N.), page 776, is as follows: Violence and intimidation — 1. Effect in general. — It is an old adage of the common law that elections should be free, and anything which prevents the free exercise of the right of suffrage by the qualified electors will be a sufficient ground for the setting aside of the election of any county or State where the rules of the common law prevail. When persons are prevented by force from casting their ballot it can not be said that there has been an election, although there may have been the form of one, and the people should not be bound by such a proceeding. CONTESTED ELECTION CASE OE CARNEY VS. MORGAN. 27 And then again, in Tenth A. and E. (N. E.), page 778, this rule is laid down: By whom intimidated. — It is not necessary that the persons who commit the violence or intimidation should be connected with the candidate; but if there is such violence that the voters can not safely deposit their votes the election should be set aside, regardless of the relations of the persons by whom it was committed. A fortiori, if there be such an intimidation that the election offi- cials may not properly conduct the election, the intimidation is even stronger. Is this a free election? Is this such an election as the common law, or the laws of the United States or of any State in the Union intend or intended to exist ? There are many cases cited in the Digest of the Contested Election Cases in the House of Representatives of the United States similar in point of law to this one. In the minority report in the case of Hurd v. Romeis, it was held that the burden shifts to the shoulders of the contestee, and when this intimidation is shown he must show that it did not affect the result. Even granting that this be a harsh rule, it certainly must be admitted that some degree of proof should be introduced upon his side to show that it had no material effect upon the result. In the minority report in the case of Hurd v. Romeis, in the Forty-ninth Congress, it was said: Where intimidation shown, burden on other party to shoiv result not affected. "Where intimidation is practiced over men sufficient in number to affect the result the burden of proof is devolved upon him in whose interest the intimidation is done to show that the intimidation did not affect the result. If this proof be not made the intimidation, and the intimidation is so interwoven with the vote that it is impossible to separate with reasonable certainty the good from the bad vote, the whole precinct must be rejected." In the case of Smalls v. Tillman, in the Forty-seventh Congress, the question of violence arose, and the committee held as follows : Where violence was prevalent throughout a county, the canvass and count of the vote involved in inextricable confusion and fraud, and the record illegally sup- pressed, the returns from the county were thrown out. Innumerable cases are cited in the contestant's brief along the same line. With this number of people voting down there, getting in the polls and voting as they pleased, and with some knowledge, at least, per- haps, that the Morgan party assisted them in sustaining their posi- tion that they were entitled to vote, how are you going to compute the vote to a mathematical certainty? All the law requires is the best evidence of which the case is susceptible. Of the negroes who went in there and voted, as the record shows, for Mr. Morgan, each one of them, as a Republican election official testified, did not attempt to qualify them, that he was afraid to do so, that he refused to take the chance of going to the penitentiary, and if you show that you have there an admission of the number of these votes in the district, and the number of all the illiterate negroes admitted in the pleadings, and how are you going to estimate the result if there was a sufficient amount of intimidation to affect the result there, and throw upon the shoulders of the contestee the burden to show that the intimidation did not affect the result. Mr. Rogers. Have you tried, or are you prepared to show, that the intimidation may be through the mind as well as through the body ? 28 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Giddings. Oh ; yes, I should think it would be. I do not think there could be any greater intimidation than that of a man who is put in fear of Federal prosecution. You take a man with a family in my country and tell him if he does not let the negro vote you will put him in the penitentiary, he is not going to take a chance like that. He will not do that. Certainly, you can not put the blame and respon- sibility on us for this situation. The Chairman. Some of the members of the committee desire to go to the floor of the House, Mr. Giddings, and I think we had better adjourn at this time. We will meet again to-morrow morning at a quarter before 10 o'clock, when we will be glad to have you resume your argument. (Thereupon, the committee adjourned to meet to-morrow, Thurs- day, April 30, 1914, at 9.45 o'clock a. m.) Committee on Elections No. 2, House of Representatives, Thursday, April 30, 1914. The committee this day met, Hon. James A. Hamill (chairman) presiding. The Chairman. You may proceed, Mr. Giddings. ARGUMENT OF E. J. GIDDINGS, ESQ., COUNSEL FOR CONTESTANT— Continued. Mr. Giddings. Mr. Chairman, I had hoped that Mr. Oglesby would be here this morning because of the fact that he asked two questions yesterday which, in my judgment, are very pertinent to the determi- nation of this controversy. The first question was that though this warning circular could not be countenanced, that it seemed that some connection of Mr. Morgan with its issuance and receipt by the several precinct election officials of the State should be shown. The second was that there ought to be some method by which a mathematical tabulation could be made to show that without this illegal vote the contestant would have had such and such a majority or plurality, as in this case it would be, there having been several candidates outside the Democratic and Republican nominees. I came prepared this morning to further answer those questions, but before I do that I desire to go further with the testimony of the several precinct election officials, to show you how, one after another, they testified, in substance, as to what effect the receipt of this letter and this circular had upon them in the enforcement of that law. The testimony of Mr. Kenyon on page 54 of the record merely goes to the fact as to how he knew the negroes were Republicans. I shall discuss how I know the negro is a Republican from this record, and also to prove that it indubitably demonstrates that they were Republicans. The Chairman. All that is in the record ? Mr. Giddings. Yes, sir. Before I get through with this argument I shall show that. Now, coming to the testimony in regard to registration, to what seems to be one of the main defenses, it being contended that if they CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 29 passed by the registration officials, that at least while it would have been conclusive proof of their qualification, or at least persuasive, of the fact that they were qualified; and I stated yesterday that I wanted to show you that not only upon the precinct election officials was this intimidation practiced, but it was practiced absolutely even previous thereto, upon the registration officials to such an extent that we had hard work to get men to serve in that capacity. I quote now from the testimony of Mr. E. A. Ringgold, the secre- tary of the county election board of Oklahoma County, which you will find on page 60 of the record: Q. Do you know whether or not there was any hesitancy on the part of those pre- cinct officers with reference to qualifying negroes, commonly called colored people? — A. There was. Mr. Morgan. Wait a minute; the contestee objects to the question for the reason that the same is incompetent, irrelevant, and immaterial. Q. Do you know what the cause of that was? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial. A. I know the cause they gave me was that they were afraid of the Federal law. Q. Did you see any hesitancy upon the part of these precinct election officials in these registration matters? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial. A. Two inspectors resigned their positions in the city rather than conduct this registration . Q. If you know, you may state whether or not they knew and you knew of any prosecutions that had been conducted by the Federal Government on account of the grandfather clause antedating the time of this registration. That is, before. Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and for the further reason that there are no statements or allegations contained in the contestant's notice of contest relative to any former prosecution had by a Federal authority. Q. Answer the question — A. I knew of such prosecutions, and I am not sure that they — I had no proof that they knew of it. Q. That is other than what you have? — A. Other than they spoke of, that they were afraid to undertake to enforce the statute in what is known as the grandfather clause for the reason that they did not want to get into trouble with the Federal authorities. Q. Mr. Ringold, did you have any difficulty in the securing of precinct election officials to act at the general election in 1912? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and not tending to prove any of the allegations or statements of contestant's notice of contest. A. In two precincts of this city and two of the counties outside of the city I did. Q. What were the grounds — what reasons led them to that? Mr. Morgan. Objected to, as incompetent, irrelevant, and immaterial. A. They simply gave us their reasons that they were afraid to get into trouble, and could not afford to get into trouble about the election law. They were men of families and could not afford to take the chances. I want to come now to the testimony of one of the big black pre- cincts. Take the testimony of Mr. Sorrells, and I think I can show you mathematically, in the aggregate, that there are 668 votes in these precincts. Mr. Stafford. I do not wish to delay you in your argument, but as I read those questions, they refer entirely to the difficulty of serving at election time rather than at the time of registration in the July previous ? Mr. Giddings. They refer to both, Mr. Stafford. Mr. Stafford. Will you kindly point out where there is any such testimony as that. Mr. Giddings. I have already Mr. Stafford (interposing). I think what you have already read does not so indicate. Mr. Giddings. It does not? 30 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN". Mr. Stafford. I notice this question on page 60: Q. Mr. Ringold, did you have any difficulty in the securing of precinct election officials to act in the general election in 1912? Mr. Giddings. You have just taken one question. Mr. Stafford. Well, then, where is the other one? Mr. Giddings. At the top of page 60, previous to that. Mr. Stafford. I wish you would point it out. Mr. Giddings. If you will start in you will find four questions at the top of page 60 ; then you will find Mr. Morgan's statement on his objections, in which he says: Comes now the contestee and objects to the question for the reason that it is incom- petent, irrelevant, and immaterial, and for the further reason that under the laws of the State of Oklahoma the secretary of the county election board could have no jurisdiction over the registration of voters, that being delegated to the precinct inspec- tor of each precinct, respectively, in cities. And then there is this: Q. Answer the question. — A. I was not in charge further than advising and instruct- ing the precinct inspectors and registration clerks as to the manner of conducting the registration. Q. Do you know whether or not there was any hesitancy on the part of those precinct officers with reference to qualifying negroes, commonly called colored people? — A. There was. You see that refers to the qualification at the time of registratkm as well as at the polls. I think it is quite clear that that refers to the registration as well as the election. Mr. Stafford. It is rather vague, in my opinion. Mr. Giddings. It is not vague to me, Mr. Stafford. It follows the context after they have talked about registration, and then he testified that they could not get officers to serve. Mr. Stafford. And right below the question is asked as to whether the precinct officials acted at the general election in 1912. Mr. Giddings. Yes, but the questions preceding are in regard to registration. Mr. Stafford. Then you have matter in regard to one of the officials acting at the general election in 1912. Mr. Giddings. That is at the bottom of the page. Mr. Stafford. What do you contend was the intimidation that influenced the precinct officials in acting at the time of registration prior to the primaries in July, 1912? Mr. Giddings. Innumerable things. Mr. Stafford. As shown by the record? Mr. Giddings. As shown by the record, and as deduced from the very logic of events. The exultant glee that the partisans took in the conviction of the two white men down there; statements that were made as to their conviction, and as to what would happen to other white men if they acted that way at the time of registration in the general election in the qualification of voters. It already had been impressed upon them; presumably they read the news- papers, that these election officers had received this treatment in "the Federal courts, and it certainly had that effect upon them. Now then, I want to quote from the testimony of Mr. Sorrells, which begins at page 62 of the record. Mr. Sorrells was located CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 31 in the big black belt. I will quote from his testimony, as it appears on page 63 of the record: Q. What effect, if any, did it have on you in the enforcement of what is commonly termed the grandfather clause? — A. It caused me to hesitate to enforce the law. Q. Do you know whether or not it had the same effect upon other officials there? Mr. Morgan. Objected to for the reason that the same is incompetent, irrelevant, and immaterial, and not showing that he knows what effect it had. A. Yes; they didn't want to enforce it at all. They was afraid of this letter. _ Q. Did you know, previous to that time, of the conviction of Beall and Guinn, of Kingfisher County, in the Federal court? — A. Yes, I knew about it; I knew they had Q. Were you a married man at that time? — A. Yes. Q. If it hadn't been for these illegal votes being cast there on account of the non- enforcement of the grandfather clause, would you be able to ascertain what would have been the result in that precinct? — A. It would have made quite a lot of difference if the negroes had been kept from voting. It would have been about 80 or 90 different. Q. Do you know the political faith of those negroes, or colored people? — A. Yes. Q. What was it? — A. Republican. Now, I want to take up the testimony of Mr. Lucas. Mr. Rogers. There is no evidence that those negroes were illiterate, however. Mr. Giddings. There is testimony here that they let them all vote. Mr. Rogers. Is not the burden of proof on the contestant to show that some of those who actually did vote were illiterate, and therefore that they illegally voted. Mr. Giddings. I think so. Mr. Stafford. I will direct your attention to this question on the top of page 64 in the examination of the same witness, in the cro*ss- examination by Mr. Morgan: Q. Were there any negroes who voted out there who did not have registration slips showing that they were registered voters in this city? — -A. No. Q. Then all of them had registration slips? — A. Yes. So I assume they had all qualified at the registration in the primaries. Mr. Giddings. Now, I want to call your attention to another answer following that which may further clarify that proposition : A. Well, I did not know whether they had been tested before or not. Mr. Stafford. He may not have known personally, but it is presumed that they had been before they got a registration slip, that they were qualified. Mr. Giddings. Oh, no. They might not be qualified, however in the light of this record that the men who were registration officers were afraid to qualify them for the sam reason that the precinct election officers were afraid to qualify them. Mr. Lewis. I notice on page 63 there is a question put to Mr. Sorrells, under the cross-examination of Mr. Morgan. Mr. Morgan asked this question: Q. Now, Mr. Sorrells, did you test these negroes on election day? — A. In what way? Q. By making them read or write a section of the Constitution of the State of Okla- homa.^ — A. Why, let's see; I made them write, but did not make them read. I did not make them write the Constitution — just their names. Mr. Giddings. Yes, sir; but I have some specimen copies of their handwriting upon the part of the negroes which even the party who got up this record could not set forth in the record because they 32 CONTESTED ELECTION CASE OF CAENEY VS. MORGAN. were so illegible. Those specimens were left with the Clerk of the House of Representatives, and they seem to have been misplaced. Mr. Lewis. Then it is true that an effort was made to ascertain whether these men could write, so as to comply with that provision in the act of assembly ? Mr. Giddings. A very puerile effort, according to the answer of the witness there: "Why, let's see, I made them write, but did not make them read." The provision said, "Read and write." He said: "I did not make them write the Constitution — just their names." Almost any negro can scribble his name in some way, but that did not make him a voter, and that does not test his literacy, as con- templated. Mr. Lewis. The question I asked you was this: If they stood in fear of this circular and that letter, they certainly would not have asked these negroes even to write their names. Mr. Giddings. They would have done something, perhaps, to avoid an absolute noncompliance with the State law. Mr. Rogers. As I understand it, they were under no obligation to impose any test whatever at the election, because all these men, as the evidence on page 64 of the record shows, had in fact, been registered previously. Mr. Giddings. That is not true. They had the same right to apply the test in the light of what had transpired during the registration. Mr. Rogers. Is it not a fact that the right of qualifying at elections in city districts is merely a local right and not an obligation on the part of the election officers, unless there is a challenge. Mr. Giddings. It is not only a right. It is the duty of the precinct election official if he doubts whether or not a citizen is qualified to vote to test him in order to ascertain that fact. That is his duty. Mr. Rogers. Even though he has previously been registered and holds a registration card ? Mr. Giddings. Yes, sir; it is his duty. Mr. Rogers. Can you give us a reference to the statute which imposes that duty upon him ? Mr. Giddings. The supreme court of our State passed upon that, and it is set forth in the brief of the contestee here. Mr. Rogers. I think that goes into the very vitals of the case. Mr. Stafford. I do not think there is any reference to that in either brief. Mr. Giddings. There is a reference to it, Mr. Stafford. I want to say that I am not here to make any misstatements as to what the record contains. Mr. Stafford. I will be very glad to have you point that out in either one of the briefs. Mr. Giddings. I am sure it is in Mr. Morgan's brief. Mr. Stafford. I have read over every page of Mr. Morgan's brief as well as your brief, and I have found nothing to that effect. Mr. Giddings. It is a quotation from an Oklahoma case. I will locate that after a while, and I will call it to your attention. Now, I want to refer to the testimony of Mr. Lucas, of precinct No. 9 of the second ward. That testimony is found on page 64 of the record: Q. Did any negroes vote there that day? — A. Yes, sir. 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. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 33 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 can. 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 34 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN". 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 them. 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 isn't. 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 elsewnere. 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. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 35 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 result. 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. Boardman. 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- sion. 86 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 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 Oklahoma. 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. CONTESTED ELECTION CASE OF -CARNEY VS. MORGAN. 37 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, 38 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 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. CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 39 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 now. 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 position. 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 can not be ascertained, the election is void. Will you tell me whether or not it was not the general fear that each official at that time was threatened with a term in the Federal penitentiary, of being taken away from his home and family and 40 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. made a criminal, that that was not sufficient fear to put in the heart of any honest citizen of Oklahoma; and if that was general to such an extent that the bars were let down all over the district, a district where, indisputably, there were 1,740 negro voters at that time, how are you going to ascertain if there was a free and fair election there, or that in the absence of such intimidation the result would not have been different? Do you mean to tell me that any fair jury, as triers of fact, sitting on a case of this nature, to pass upon the question as to whether, in fact, intimidation has been used, would hold, in the jurisdiction of Oklahoma, that that was not sufficient intimidation, at least to invalidate and vitiate the election? It is immaterial to me whether you say this was a fraud on the part of the election officers or not. If it went to court on the fraud of election officers, and this man got the benefit of the fraud by their failure to enforce this law, he certainly can not complain. He can not hide behind that and say, "I had nothing to do with it." In the case of Freeman et al. v. Lazerus, the following rule was laid down, as quoted on page 38 of the brief of Mr. Davis: There is a difference between fraud committed by officers or with their knowledge and consent and a fraud committed by other persons, in this: The former is ordinarily fatal to the returns, while the latter is not fatal, unless it appears that it rendered doubtful or changed the result. If an officer is detected in a willful and deliberate fraud upon the ballot box, the better opinion is that this will destroy the integrity of his official act even though the fraud discovered is not of itself sufficient to affect the result. The reason of the rule is that an officer who betrays his trust in one instance is shown to be capable of defrauding the electors, and his certificate is good for nothing. If an official is so intimidated that he can not enforce the law, fraud upon the electors is absolutely certain. In the case which I have just cited he might not continue the fraud, but under our fact? he must con- tinue the fraud in some measure, as long as he is intimidated. I want also to quote from the ca=e of Greevy v. Scull, in the Fifty- second Congress. This rule was laid down: The power to fix the qualifications of voters is vested in the States, subject only to the limitations contained in the fifteenth amendment to the Constitution of the United States. Each State fixes for itself these qualifications, and the United States must adopt and has uniformly adopted the State law upon the subject, and the House of Representatives should not in any case fail to act in conformity with it. The proposition is that the Supreme Court of the State of Oklahoma having passed upon the validity of this grandfather law, that is bind- ing upon this tribunal, and that the Congress of the United States, not once only, but many times, ha? held that to be a proper action upon the part of a Committee on Elections, or upon the part of the House as a whole. From the Third Congress down to the beginning of the Fifty-fifth, the same rule has been established. I am talking back to this grand- father clause. [Reading] : It is a well-established and most salutary rule that where the proper authorities of the State government have given a construction to their own constitution or statutes, that construction will be followed by the Federal authorities. This rule is absolutely necessary to the harmonious working of our complex governments, State and National, and your committee are not disposed to be the first to depart from it. That cites a long line of authorities. I call your attention to an Oklahoma case. I am going to come to your case, Mr. Stafford, that we can go back of the certificate of registration. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 41 In the case of Rampendahl v. Crump, an Oklahoma case [reading] : Obviously the lawmaker;., tpecifically placing such duty upon the voter, and imposing the penalty of felonious punishment upon anyone unauthorized interfering by receiving the ballot, intended such provision to be mandatory. But the rule obtains in elections, as in other affairs, that a man shall not benefit by his own wrong, nor by that of others done to allow him to reap the benefit. That is to say, Mr. Morgan can not reap the benefit of the recom- mendation of the United States attorney. So, it has nothing to do with it, nor inures to his benefit. [Reading resumed:] The only means by which approximate justice may be reached when the illegal acts render the results doubtful, is to require the party, to whose benefit they inure to purge the poll of their effect, or suffer the penalty of having its majority excluded from the count of his vote. And will it result in his benefit ? Did it result in his benefit ? Read this record, and you will find in every precinct where the negroes voted in actual quantities, regardless of the grandfather law, Mr. Morgan carried the district. This record shows that over 1,400 negroes voted in these various districts, and I purpose to show you that they voted the Republican ticket, and that their votes ought to be excluded, considering the propositions hitherto advanced in this argument. You can not make a man divorce himself of that of which he has knowledge. You can not make a man who lives in my country or around it conceive of anything else but that when the negro votes he votes the Republican ticket. We know that. We can not divorce that knowledge from what we know; and in their decisions on the facts of this case the members of this committee have the right to direct the light of their general knowledge and information upon the subject. The next proposition showing that they voted the Republican ticket is evidenced from the fact, as shown in this record, that in several precincts, or at least one, when these negroes went to the polls out in Luther Township that they asked for ballets with Dick Morgan upon them; and they were told that they had no special Dick Morgan ballots, that they would give them the general ballots and let them vote the way they pleased. Then there is the testimony of these election officials referring to many of these men who testified that they knew the politics of each and every individual negro who voted there; that they knew his politics to be Republican. It seems to me that with all these facts and circumstances they at least are sufficient to make out a prima facie case that they did vote the ticket that we charge them with voting and their vote was so intermingled and intermixed with the good votes in those several precincts that the results have been tainted and ought not to be received in evidence here before this committee. If the committee please, upon those matters, which are purely defensive and as a matter upon the part of a contestee, I do not desire to take up the time of the committee in advance. I would not know how to anticipate, may it please the committee, the posi- tion that the contestee is going to take in this case. The Chairman. Have you not the opportunity to reply ? Mr. Giddings. Yes, sir. 42 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. If I could anticipate it I would finish this argument now. I was confronted in the answer of the contestee with the statement by Mr. Morgan that he denied that Mr. Boardman had written this letter and demanded strict proof of it, and I am here confronted with his admission or the statement rather that he does not deny- that it was so written by Mr. Boardman. I was confronted at one phase of this situation with the denial that the grandfather law was a valid, subsisting, and constitutional provision of my State; and I am confronted now with the brief of the contestee, in which, tacitly at least, he admits the validity of that law. It would be utterly impossible outside of this situation in Blaine County, where the election officials, acting under their oaths as officers of the county election board, rejected 10 or 11 returns, presumably upon the theory that those returns were not properly attested or certified to as required by law, bacause in that respect and that alone have they any jurisdiction to inquire into the conduct of elections in any given precinct in their county. I do not want to burden this committee with any further argu- ments. I have tried to make myself as plain as possible. Now, then, as to the statement of Mr. Stafford that he could not find such case Mr. Stafford. If you have not it at hand now you can refer to that later at any time at your leisure. Mr. Giddings. I know it is in here. The Chairman. Suppose you look for it later and in your reply bear it in mind and see that we get it in the record. Mr. Giddings. It is in here somewhere. I want to show you an admission in this brief, and I trust the members of this committee who are lawyers, as well as those of other professions and businesses, will bear this in mind- — and I have tried to hammer on it so repeatedly that it would not escape the atten- tion of the committee, that where matters have been admitted in the pleadings that we have considered that that obviated the neces- sity of proof, as if they were trying this contest just like they try a lawsuit in another tribunal, and that they were bound by the admis- sions in their pleadings, and I have called your attention to those admissions times without number. The Chairman. You have called attention in your brief to some of them ? Mr. Giddings. Yes, sir; I have. We have another admission upon the part of the contestee that there were sufficient negroes who voted there to virtually have changed the result, unless he added to his result the election returns in Blaine County, Okla. If those be deducted, we have his own admission in his own brief that he was not elected from the second congressional district of Oklahoma, and that instead of that he was defeated anywhere from 115 down to 59 votes in that precinct. I shall not attempt to anticipate in advance what position he shall take upon the election in Blaine County; how far he shall be permitted to go behind the conduct of those election officials in throwing out returns that may not have been properly certified or signed according to law. I am not going to take up any further time of this committee, except to make a few references, and then I am through. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 43 I do not want to go out of this record. As I told you in the begin- ning, this is a matter of serious consequence to the people of my State; it is a matter of serious consequence in the conduct of future elections. These two men, Beall and Guinn, who were convicted in the Federal court, were farmers living in Kingfisher County, Okla., out in a vast negro precinct. It may be inquired, and it may be the contention of some Republican members upon this com- mittee, that those men were lawfully convicted; that the presump- tion is they were lawfully convicted before a jury of their peers, but those of us who have practiced law in the Federal courts — and I do not desire to in any way impugn their integrity — know very well how those things are done, and everyone in Oklahoma knows that the jury which convicted them consisted of 11 Republicans and one Socialist. What opportunity Mr. Giddings. That is the truth, and you need not shake your head. We kept pretty good tab upon it, and there were at least 10 Republicans, and one who had leanings toward Republicanism, and one Socialist. It therefore remains an obvious fact that these men would not have much show before a jury of that nature. Those men were convicted, and yet they have stood by their guns; they have lived in a state of terror and of fear in Kingfisher County. They live out in a negro precinct where they have sought to educate their white children in separate schools; and in that precinct not once but 3 times since that election have the negroes burned down their white schoolhouses, necessitating them at last to go to the extremity of building a white schoolhouse right up against their own farmhouse, in which to educate their young children, and necessitating the keeping of an armed patrol there day and night to effectuate that godly purpose. So, I say to you it is a serious matter with my people. I do not desire to be sectional. I call your attention to these facts. You send us back empty handed, and give these people carte blanche to do the same thing in the future to intimidate — and when we try to enforce our white man's election laws down there it can be said to them on the stump and elsewhere, "You tried to enforce them once and you got sent to the penitentiary for it; and when you failed to enforce them again under threat of Federal prosecution if you did, a Democratic committee turned you down. You better forget such laws. You better take no chances on Federal prosecu- tion and humiliation." If in the light of this record this committee by a majority can say this was not intimidation; that it does not raise a presumption that there was fraud, that there was a taint in that election, then it seems to me that the language of this testimony and of that letter and that circular have not the force and effect, and will not have the force and effect upon this committee that they had upon those election officials. Gentlemen, there are numerous other matters that I would like to discuss, but I have already taken too much of your time. However, I do impress upon you, aud I know you know the importance of it, the necessity of careful investigation of these matters. Do not send us back there empty handed, when we call on you with clean hands. We did not do these things: there is not a su^pr-stion, an intimation 44 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. that we had anything to do with the issuance of this letter. It would not benefit us- to have these negroes vote. The benefit under this testimony was on the other side. We can not be blamed with it. There is not even the remotest suggestion that any Democratic committee, acting for any Democratic candidate, sent any such circular anywhere at any time for political effect, and if we had had an even break, if we had an honest, if we had an equal, if we had a fair, if we had an American election down there the result would have been different in that district; and if that be tru«, then this contestant is certainly entitled to his seat. Most of his time has expired. Even at that he is entitled to the balance of it. But, regardless of that, and if the committee should find that there was not sufficient evidence to show numerically, mathematically and arithmetically, as required by some that he was entitled to his seat, at least we ask, for the enthronement of the principal of right local self government in the State of Oklahoma, that you declare this election void, invalid, and say to those Federal officials, ''In the future, don't you dare to try to intimidate the election officials of that State; it is not your business to do it. The laws of your land do not require or demand it, and men in public office, such as Federal district attor- neys, or otherwise, have no business as partisans, sending circulars around threatening men with Federal prosecution: that is not their duty. They are to sit there, instead of being in league with some Republican organization, as in this instance, or some Republican campaign manager, as in this instance, they are to sit there as non partisans, regardless of their own personal political faith, and enforce the laws of their jurisdiction and let the laws of the State of Oklahoma and her precinct election and county election and State election officials alone. Therefore, in summing up, I desire to say merely this — and I am through, and in the concluding argument, as I stated in the opening, I will try to answer to the satisfaction of Mr. Oglesby the two ques- tions he propounded to me on yesterday. In conclusion, permit me to say this, seeking to sum up this entire situation, and that is all we ask; we do not care about that office, but we want to be let alone down there; we want to have the right to run our own elections. We ask this committee, in justice to free elections, in deference to an untrammeled ballot, to declare one of two things: First, that by the rejection of this illegal vote the contestant stands elected, or that, by reason of the intimidation used, and wantonly used at that, the seat in Congress from the second congressional district is vacant. We are not fighting so much for a seat in Congress as we are for the principles of local self government; of white supremacy \n our State. We will be satisfied with either one of these findings, to the end that the contestee may be unseated, in the interests of civilized and free elections, and that he may no longer hold a seat in Congress over the earnest protest and votes of the great majority of our intelligent and conscientious citizenship. That is our prayer, and we confidently expect that that prayer will be realized in this contest. Mr. Michener. Mr. Chairman and gentlemen of the committee, I have asked Mr. Morgan to make the opening statement for the contestee, and I trust that will be agreeable to the chairman and gentlemen of the committee. CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 45 The Chairman. I am going to say this, if it is agreeble to the committee — I am going to put it to the committee — if two counsel address the committee, I suppose it is only fair if Mr. Carney wants to address the committee that he have an opportunity. What does the committee say ? Mr. Michener. The contestee will assent to that. The Chairman. There is no objection to that. Mr. Michener. Very well. Mr. Giddings. I think the orderly plan of procedure would be for him to proceed and Judge Carney follow him. STATEMENT OF HON. DICK T. MOEGAN, CONTESTEE. Mr. Morgan. Mr. Chairman and gentlemen of the committee Mr. Carney. I did not understand. The Chairman. You will have an opportunity. Mr. Carney. I would like to have an opportunity after the attorney has addressed the committee. Mr. Morgan. Mr. Chairman and gentlemen of the committee, for some reasons I would prefer not to speak in my own behalf, but Gen. Michener, my counsel, thought I should speak. That was one reason why I speak. Another reason why I do so is because I want to submit to the chairman of this committee and to every member of it absolute freedom to cross-examine me and to put all kinds of questions to me that they think will throw any light, certainly upon my conduct or of anyone connected with my campaign, and I would really feel, if I did not voluntarily come before the com- mittee, that it might be a little like the man who had not testified in a case The Chairman. Afraid to take the stand ? Mr. Morgan. Yes. Especially, I want the committee to be free to question me concerning anything I have done or anyone connected with my campaign committee or the congressional com- mittee. Mr. Oglesby. You mean only in connection with the campaign ? [Laughter.] Mr. Morgan. Anywhere, because I try to live a life that I do not care if the world knows it. That is a fact. There is a third reason why I think it appropriate that I should speak, p.nd that is in behalf of my constituency; and by that I mean in behalf of the people of the second congressional district, because, Mr. Chairman, it is not myself and Mr. Carney who are on trial; we are not the only parties interested in this case. The people of the district, Democrats as well as Republicans, and Socialists, are entitled to be heard in this case. So that I claim that I speak for them as well as for myself, what personal interest I have in the result. Mr. Chairman, it is of course well recognized that the burden of the issue in this case rests upon the contestant. He must establish, as I understand it, by a preponderance of the evidence — in other words, he must establish by clear, sufficient, and competent evidence every single material fact that is necessary to enable him to prevail in this case. I think there is no question about that, because, Mr. Chair- man, I come here with a certificate of election, which ordinarily or always is at least prima facie evidence of my election; but I claim 46 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. that in this case my certificate means more than it ordinarily would, because this certificate was not given me by my political friends; it did not come to me signed by a Republican official, but it comes to me from a Democratic State election board, signed by the secretarj^ of that State election board, a Democrat, and he issued that certificate on authority, as we would say out there, from the "grass roots," from the lowest and the smallest election precinct in that district — every single officer, every single return, comes from Democratic authority. Not that Democratic authority is necessarily better than the Repub- lican or Socialist authority, but in this case it comes because it is authority that is adverse to me politically. So that if there should be any advantage it would certainly be given to the other side. In other words, my opponent failed to get the. certificate from his friends, I received that certificate from my political adversary. So that it is more than an ordinary certificate. I might say that I am glad that I can be elected in a district through an election con- ducted by Democrats. While the Republicans have generally, or may have a minority representation, yet Democrats have the majority in every single election precinct, and I guess I might refer to that right here. The Chairman. Yes, I would like to know something about that. Mr. Morgan. That under our State election law, the governor of our State, who has been a Democrat, and so far as I know will be a Democrat for a long time to come — I hope not always — is authorized to appoint a State election board composed of three persons, not more than two of which can be of the same political party. Mr. Broussard. Have the Republicans one of those ? Mr. Morgan. Yes, sir. Mr. Broussard. Two Democrats and one Republican. The Chairman. It is bipartisan, but these boards are constituted with a majority of their membership belonging to the prevailing political party ? Mr. Morgan. Yes, sir. Mr. Oglesby. That is not what we ordinarily understand in my State to be bipartisan members. We have several bipartisan boards consisting of four membeis, two Democrats and two Republicans. Mr. Morgan. The law provides that no more than two of those three shall be of one political party; and so on down to the precinct election board. Mr. Broussard. Are they all appointed by the governor? Mr. Morgan. The State election board are all appointed by the governor. I believe they are confirmed by the State senate, which, of course, is Democratic also. Mr. Broussard. I understand that. Now, then, how does this organization reach into the counties? Mr. Morgan. I will proceed to the next step. The State election board, under the law, is authorized to appoint an election board in each county, consisting of three persons, not more than two of whom shall be of the same political party. Mr. Broussard. Let me ask you right there, just for information, so we may get this right, and see how nonpartisan your elections are being held out there. Mr. Morgan. Yes, sir. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 47 Mr. Broussard. These county boards, as was stated, are all con- stituted by having two Democrats and one Republican? Mr. Morgan. Yes, sir. Mr. Broussard. The Republican is the opposing party to the Democratic Party in Oklahoma? Mr. Morgan. Yes, sir. I do not know whether we ever recognized the Socialist Party or not. Mr. Broussard. In your district, have they sometimes appointed a Socialist as a minority man on that board? Mr. Morgan. I do not know whether they ever did or not. We had last year 40,000 Socialist votes. Mr. Broussard. They constitute a very important vote in your State; I anr aware of that. Mr. Morgan. I do not think they have ever appointed a Socialist, but they may have. Mr. Michener. There are two Democrats in each county board? Mr. Broussard. There are two Democrats in each county board? Mr. Morgan. Yes. Mr. Broussard. How does the board handle the vote by township ? Mr. Morgan. We have precincts. Sometimes a precinct might consuuife an entire township, but a precinct might be divided; but the coumy election board, these three, are authorized to appoint a precinct e!ec;ion hoard, consisting of an inspector, a chairman, and a clerk. Mr. Broussard. What are the duties of these three officers ? Mr. Morgan. Their duty is to receive the vote, put it in the ballot Mr. Broussard. What is the ministerial duty of the clerk? He keeps a list, I presume, of the men who vote ? Mr. Morgan. Yes, sir; and they have the ordinary duties which apply to those offices. Mr. Broussard. What does the chairman do ? Mr. Morgan. The inspector ? Mr. Broussard. The inspector. Mr. Morgan. Is not that right, Mr. Carney? . Mr. Carney. I beg your pardon ? Mr. Morgan. The three precinct election officers — inspectors and clerks. Mr. Broussard. I would like to know what the respective duties are, so that we may get at this whole election machinery in force in the State of Oklahoma. Every State has different machinery with regard to the casting of ballots, the determining of the qualification of the citizen who presents himself, the returns thereof and all of that. I want to get at the machinery in force in your State, by which the result is promulgated and sent to the State board. I do not care about the law. I merely want the information. Mr. Morgan. I will ask Mr. McGuire. He may be able to tell it more fully. Mr. McGuire. There are three precinct officers. Mr. Broussard. Name them, and what are their respective ministerial duties or discretionary duties ? Mr. Morgan. The clerk who writes the name of the applicant to the vote — the elector. Mr. Broussard. He makes a list of voters ? 48 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. McGuire. He makes a list. The inspector, who is always a Democrat, passes upon the qualifica- tions of the voter, and the judge of the election, who is a Kepublican, is the third man He has not any duties except as a consultant. Mr. Broussard. Suppose there is a question as to whether I can go and vote or not. Yvno decides that —the three or the one ? Mr. Morgan. I will give that to you in just a second. The law specifically makes the inspector the sole judge of the qualification of the voter, if he should be challenged, and only two men can challenge him. Mr. Broussard. It requires two men to challenge him ? Mr. McGuire. The law specifically mentions two men who may challenge the 'voter. Mr. Broussard. Who are those two ? Mr. McGuire. The inspector, who passes on his qualifications, and then an official challenger named by the party who stands outside. The inspector is always there. Now, then, in the case of the enforcement of the grandfather clause, this inspector is specifically mentioned as the only person who can pass upon the qualifications of the applicant, and from his decision there is no appeal; he applies the test. It is a little different where someone else is voting. For instance, if a white man applies and makes application for a ballot, he can be challenged in the same way; that is, this inspector can challenge him, and the official challenger named by the party outside. Mr. Oglesby. You mean named by the minority ? Mr. McGuire. Named by either party. Mr. Oglesby. You mean there are two officials and two challengers ? Mr. McGuire. One representing each party. There may be more. They stand out 50 feet from the polls. They can challenge; they can follow in, I think, under the law and challenge. If he is a white man or an Indian, the inspector then is not the sole judge. He says, "No, you can not vote," but if some elector on the outside who knows this applicant comes in and says, "Here, I will make an affidavit that he has lived so long in the State, so long in the county, and so long in the precinct and township ; I will bring him by my affidavit within the purview of the law," then, he can vote, in spite of the inspector, who is the sole judge of the qualification, with the exception that they must take the vote, if offered, in case of a white man or Indian voting, if it is backed by these affidavits, bringing the applicant within the purview of the law. Mr. Broussard. I want to ask you this further question; by virtue of that section, which is known as the "grandfather clause" of the constitution of Oklahoma, to- wit [reading]: Precinct election inspectors, having charge of registration of electors, shall enforce the provisions of this section, at the time of registration, provided registration is required. Should registration be dispensed with, the precinct election officers, when electors apply at the polls to vote — Is it under this clause of the constitution that the inspection at each precinct is made, that the inspector at each precinct is made the sole judge, where the question arises as to whether the man who offers to vote was a son or a grandson of someone who could vote in 1866, at the date fixed in your constitution ? CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 49 Mr. McGuire. That is enforced now, except this, I think that which you read is the law passed by the legislature Mr. Broussard. No; this is a part of your constitution as I read it. Mr. McGuire. You are reading from the constitution? Mr. Broussard. Yes. I just wanted to make it appear that the sole right of the inspector to pass upon the qualification of the elector applies solely to those who present themselves and may be amenable to this grandfather's clause of your constitution. Mr. McGuire. You are right; that is absolutely true. Mr. Broussard. Every challenge made, as to the right of the party to vote when he presents himself, must be decided by the three men who ai e appointed ? Mr. McGuire. No. The inspector is still the man who passes by practice down there, and also under a different statute regulating that. There is an appeal from the final decision of the inspector. Mr. Broussard. To whom does this appeal go ? Mr. McGuire. Well, if his application is backed by an affidavit, of two men, I thick it is — possibly one — who will swear that he is a legal voter, who has been in the State so long, and in the county so long, and township and piecinct, that he is a man of mature years, and all that sort of thing, that they will bring this applicant within the purview of the law; then the inspector must let him vote. Mr. Broussard. This is discretionary, is it ? Mr. McGuire. That is marked in the usual way. Mr. Broussard. Marked for identification ? Mr. McGuire. Marked for identification. Mr. Broussard. Do they pin these affidavits onto the ballot, in order that in the event of a controversy it may all be decided by the board, whatever board it may be ? I presume the county — if they decide the affidavits do not bring him within the purview of the right to vote, that they can take this ballot out and deduct it from the column of the party he may have voted ? Mr. McGuire. That is right, Mr. Broussard. And from the candidate for whom he may have voted ? Mr. McGuire. I do not know just how they treat the ballot, except I do know there is a note made of that. Mr. Stafford. Are the ballots numbered as they are in my own State « Mr. McGuire. Every ballot is numbered, and you can see exactly and clearly how that party voted. Mr. Taylor. Is the challenged ballot numbered ? Mr. McGuire. It is numbered, so you can take every step and see what is done. Mr. Broussard. The stubs have been filed here. Mr. Stafford. As I understand, Mr. McGuire, that practice only applies to white men and Indians. Mr. McGuire. Other than those who come within the purview of what is known as the '-grandfather clause." In that case the inspector is the sole judge. Mr. Broussard. Are the Indians entitled to vote under the ''grand- father clause ?" You have a lot of Indians out there, I know. 46996—14 4 ; 50 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. McGuire. All Indian tribes in my State are permitted to vote. There is a provision in our constitution with respect to In- dians that I will call your attention to later, and I do not think that there is any doubt but what any Indian in the State can vote, par- ticularly where they have had any kind of government in the past. Mr. Morgan. You see the "grandfather clause" says, "or persons who have voted in any form of government." That was put in, as I understand it, to let the Indians in. So, I know in some Supreme Court decisions Mr. Broussard. I notice it is changed from the original "grand- father clause." Mr. Morgan. That is in the "grandfather — — Mr. Broussard (interposing). I noticed that change, and I imag- ined it was meant to apply to the Indian. Let me ask this question: As a matter of practice, do they apply the "grandfather clause" to Indians ? Mr. Morgan. No, sir. Mr. Broussard. To any of the tribes of Indians ? Mr. Morgan. As I understand it — of course, on the west side, in my district, there are two or three thousand Indian population. Mr. Broussard. How many ? Mr. Morgan. Two or three thousand in population. Mr. Broussard. You mean male Indians ? Mr. Morgan. Of all classes of Indians — of all ages; but they won't vote for either side, with rare exceptions, and I do not think the question has ever been raised, although I understand in some decisions of our Supreme Court, which I have recently read, there is intima- tion that those Indians, not having had a form of government by which they voted, could not vote; that the "grandfather clause" would apply to them. Mr. Bowdle. Mr. Morgan, before you proceed to another point, allow me to say that I am impressed with the statement you made that this certificate which ran to you ought to carry weight and high presumption in your favor, because it seems from your political "enemies," so to speak. Now, may I ask whether or not that certi- ficate came to you after these alleged facts here before us had been in any way canvassed before those persons ? Mr. Morgan. No; the record shows here that these amended returns — so-called "amended returns"- were all filed a week or two before the election certificate was issued, which would be evidence in the records. Of course, as a matter of notoriety, it was three or four weeks before the election certificate was issued, and in, Okla- homa County returns were not made up for two weeks anyway, although they ought to have been made, we thought, within two days. Mr. Bowdle. There was no trial of this particular issue? Mr. Morgan. Oh, no; but I mean the facts were a matter of public notriety. Mr. Broussard. Along that line, let me ask what powers under your law this State board has to review any controversy of the character we are hearing before this committee. Mr. Morgan. I understand they have not power. If the returns are regular, they are ministerial officers. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 51 Mr. Taylor. And the issuance of the returns was merely a clerical duty ? Mr. Morgan. Ministerial. Mr. Broussard. Compiled those votes as they came in, and issued the certificate to the man who had the highest vote ? Mr. Morgan. I understand that is so. Mr. Rogers. Do you recall the date on which those amended returns were filed ? Mr. Michener. They were filed on the 16th. Mr. Morgan. The amended returns were filed the 16th. Mr. Rogers. And it appears in your answer, on page 11 of the record, that your certificate of election is dated November 22. Mr. Morgan. Yes, sir. Mr. Rogers. So six days had intervened after the amended returns, which disclosed the charges made by the contestant, and which are now being canvassed before us in this contest ? Mr. Morgan. Yes, sir. Mr. Oglesby. As a matter of fact, Mr. Morgan, the State board gave no effect to these amended certificates at all ? Mr. Morgan. I think not. I do not think they considered them. These amended returns went to the county election board, of course. Whether they certified them up to the State election board — I pre- sume they did not. Mr. Broussard. Is not the controversy in this case concerning two counties or more ? Mr. Morgan. Oklahoma, Blaine, and two precincts in Canadian. Mr. Broussard. Three counties; there would be three county boards to whom these amended returns have gone ? Mr. Morgan. Yes, sir. Mr. Broussard. I merely want to get these facts, because it per- mits me to follow the argument. Mr. Morgan. I might say, further, there has been something said here several times about the Supreme Court decision — the question involved in the Supreme Court over the prosecution and conviction of two election officials, under elections held in 1910. I want to say here, and I want the committee to get that clearly in their minds, that while it is true that if the Supreme Court of the United States should hold that the so-called "grandfather clause" or law in our State is in conflict with the Constitution of the United States, and therefore that all of these negroes who were qualified voters were not subject to this State law, of course, then the bottom would en- tirely drop out of contestant's case; but the Supreme Court of the United States may hold every letter in that "grandfather clause" good law, and not in conflict with the Constitution, and yet I am elected, while my contestant's case wholly depends — the only thing they could hang on would be the idea that that matter of that law is void; that my election does not depend upon the "grandfather clause." We maintain, and the record shows, that whether we would have that law enforced or not, it is enforced; that whether Republicans desire to submit to it or not, they are compelled to submit to it. We have no choice; we are absolutely compelled to do it. Mr. Oglesby. But, Mr. Morgan, what ;do you say to this propo- sition: They contend that it was not submitted, because by reason 52 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. of this intimidation no test of qualification was put to anybody — to any negroes ? Mr. Morgan. I was going on to say, not only that we have to submit to it, but in that State that law is enforced, and that would be the second proposition I want to enter into, because I consider that the main proposition in the case. Mr. Oglesby. Then you deny, as they assert, that these contests or these qualifications were applied. They say these tests were not applied. Mr. Morgan. We say they were, and that the record absolutely proves it. Mr. Stafford. Before Mr. Oglesby came in this morning, in the argument of Mr. Giddings, in which he claims he was citing testimony on direct examination of some of the elections, that the grandfather test was not applied, I called his attention to testimony on cross- examination of that same witness which would show that all of these persons had the certificates of registration in their possession, and the test had been applied to them at the time of the registration of July previous. Mr. Oglesby. Whether or not there was a contest Mr. Broussard. In that one precinct ? Mr. Morgan. In that one precinct, and in fact the brief discloses that is the fact. Mr. Oglesby. What I wanted to get at is, whether or not there was any conflict between the two sides over that question of fact. Mr. Stafford. Mr. Giddings contends if the man is registered, had been submitted to the test of registration, that that does not qualify him to vote; whereas the reading of the brief of contestee claims that is presumptive evidence, and he is qualified, if he has registered he has submitted to the test upon registration. Mr. Morgan. Just on that point, of course the United States cen- sus reports are not in evidence, but I presume in election cases that would be. taken notice of. The United States census reports show that in the second congressional district of Oklahoma that there are 4,228 male negroes of voting age. The contestant alleges in his brief and only claims that there were 1,740 negroes voted. That would leave 2,488 negroes of voting age who did not vote, and that is prob- ably correct, but probably not one-half of the negroes vote. That is the census report, and there is their claim, and only 1,740 voted. Mr. Russell. How many negro voters were there ? Mr. Morgan. Four thousand two hundred and twenty-eight, leav- ing 2,488 after taking out the 1,740 votes alleged to have been voted in the entire district. Mr. Stafford. Leaving over 2,400 ? Mr. Morgan. Yes, sir. The same census report shows there is only slightly in the excess of 500 illiterate negro voters in that dis- trict — just a few in excess of 500. Mr. Broussard. That is a mighty small proportion. Mr. Morgan. And the same thing, right in that connection Mr. Broussard (interposing). I am not questioning it, but it is awfully small. Mr. Morgan. It shows there were only 1,100 illiterate white voters in that district; but the illiterate white voters in that district are double the number of illiterate negroes. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 53 Mr. Lewis. Can you give us reference to this statement ? Mr. Morgan. Yes, sir. Mr. Lewis. Are they compiled in the form in which you state, or do they have to be dug out % Mr. Morgan. Here it gives them in counties. Mr. Stafford. Identify the bulletin, if you please. Mr. Morgan. This is Bulletin 13, Census United States, 1910 — Bureau of Census, issued by Dana, population of Oklahoma. Mr. Lewis. Is there not some distinctive number to it ? Mr. Oglesby. How many white voters in the district are there, Mr. Morgan? Mr. Morgan. There are in the neighborhood of 60,000. Of course, there is nothing like the proportion of the illiterate in the whites that there is in the blacks, but it is a fact that that census report shows — I will have it tabulated and put in my remarks, and make reference to the bound volume. I had that bound volume in my office, but did not bring it over here. You take Oklahoma — we had 1,657,155 popu- lation, and only 137,489 negroes; in other words, the most of our counties are white. The negroes are concentrated in a few counties. We have no race question in Oklahoma such as you have heard of in other Southern States, because our negro population is so small compared with the white population, and in all the State of Okla- homa, according to that census, there are only 36,841 negro voters. One-ninth of these are in the district. I had two main propositions that I wanted to discuss. One was, what we set up in our cross petition as to the loss of our vote in Blaine County; second, I want to take up the question of whether or not the election officers were intimidated, as shown by the record. Mr. Oglesby. Before you get away from that, let me ask you this question, if it will not interrupt }~ou. Mr. Morgan. That is all right. I am perfectly willing to submit. Mr. Oglesby. As I understand, your contention is there are only 1,740 negroes who voted. There are 4,828 negroes in the whole dis- trict, and that there are about 12 per cent of the negroes in the whole district who are illiterate ? Mr. Morgan. Yes, sir; that would show that. Mr. Oglesby. Therefore you argue from that that the proportion of those who voted who are illiterate would not be greater than the proportion in the entire district who are illiterate, and, arguing from that premise, there would be not to exceed 208 of those negroes who voted who were illiterate ? Mr. Morgan. Yes, sir. Mr. Oglesby. And that, even if that proportion held true, it would not reduce your majority more than 208 ? Mr. Morgan. Yes; or, to put it this way: There are only a little over 500 illiterate negroes, according to that census, in the district. If they all voted, that would not overcome the 663 majority which I got on the face of the returns, or my 891 majority which I really had — if you count 3 Blaine County votes. I introduced that — answering your question, Mr. Oglesby — because counsel for the contestant here, I thought, tried to convey the impres- sion that the negroes down there are ignorant, unable to read, wholly unqualified under the "grandfather clause," rushed in there by the hundreds and voted, overpowered the Democratic election officials, 54 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. and were allowed to vote. Absolutely such is not the case. For instance, take Oklahoma City, where he introduces the poll book of registration and seemed to convey the idea that those 900 represented all the negro votes in Oklahoma County, whereas the districts show that there are 9,100 negroes in Oklahoma County, and the probabili- ties are there are not one-half of the negroes in Oklahoma County voted. That is why I wanted to call the attention of the committee to it — so they could see in an intelligent way how many negroes there were down there — and according to their own contention, not ours, they allege there were only 1,740 negroes voted. Mr. Stafford. Then all of Oklahoma County is not in the second congressional district ? Mr. Morgan. Oh, yes, sir. Mr. Stafford. Then I did not follow you. You say there are 9,100 negro voters ? Mr. Morgan. No; 9,100 negro population. Mr. Stafford. I beg your pardon. Mr. Morgan. And in Oklahoma County I have got the exact number according to the census, which is 3,068 votes, and he only alleges a vote of 1,700. The Chairman. How many are there in Oklahoma County ? Mr. Morgan. In Oklahoma County — and he only alleges 1,740 in the whole district. The negro voters in Oklahoma County are 3,016; so the negro vote is 4,228. I would like for the committee, for the balance of the time I use this forenoon, to take up the question of the Blaine County vote. Mr. Michener. Have you time to do that? It is now 10 minutes to 12 o'clock. The Chairman. It is about 6 minutes of 12, and we will adjourn until 10 o'clock to-morrow morning. Mr. Lewis. May I make a suggestion at this point? The Chairman. Yes. Mr. Lewis. It seems to me it would be of very great value for the use of the committee if we could get a tabulation of the various coun- ties or precincts wherein there is a contest, or wherein it is claimed that there are certain illiterate negroes who voted, so that we can see ourselves, in tabular form, just what the situation is. Mr. Morgan. We have that. But, let me say right there, to put in a point, if you will observe in reading this record — the contestant of course made his case, and my attorney regarded it as being so insuf- ficient that we did not introduce any rebuttal testimony at all, so far as his case in chief is concerned ; the only testimony we introduced was testimony to make out this Blaine County case, where we lost 228 votes. The evidence in this case showing that the law was inforced is their own evidence, and yet with all that in this record, the contestant has not introduced at all the number of votes cast in the district. There is not a word in that record to show how many votes I received, or how many votes Judge Carney received. The Chairman. Suppose you take that up to-morrow and argue it before us. I think that is better. Mr. Morgan. All right. (Thereupon, at 12 o'clock, noon, the committee stood adjourned to meet to-morrow, May 1, 1914, at 10 o'clock a. m.) contested election case of carney vs. morgan. 55 Committee on Elections, No. 2, House of Representatives, Friday, May 1, 191 4. The committee this day met, Hon. James A. Hamill (chairman), presiding. The Chairman. When we adjourned yesterday Mr. Morgan was addressing the committee. You may proceed with your argument at this time, Mr. Morgan. ARGUMENT OF HON. DICK T. MORGAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA— Continued. Mr. Morgan. Mr. Chairman and gentlemen of the committee, I have here some tables which I desire to insert in the record. The first one, Table No. 1, is a reproduction in the main of the statistics which I gave you yesterday. (The table referred to is as follows:) Table 1. — Population, voters, and illiteracy, etc., in Oklahoma. [Census Report, vol. 1, p. 141.] Total population -. 1, 657, 155 Total negro population 137, 489 [Census Report, vol. 1, p. 1045.] Total population of voting age 447, 266 Total negro population of voting age 36, 841 [Census Report, vol. 1, p. 1205.] Total illiterate population of persons over 10 years of age, including all classes 67, 567 Per cent of illiteracy 5. 6 Total illiterates of native white 33, 569 Total illiterates of foreign-born whites 3, 828 Making a total illiterates of white population over 10 years of age of 37, 397 Total illiterate negroes over 10 years of age 17, 858 Percentage of illiteracy of negro population 17. 7 Percentage of illiteracy of negro population at voting age in Oklahoma City . 6. 2 This is known as Table No. 1. It will be observed that in this table the total population of the State of Oklahoma was 1,657,155, and the total negro population of the State was 137,489. The total population in the State of voting age was 447,266, and the total negro population of voting age was 36,841 . Mr. Taylor. This table does not show the voting population in } 7 our district ? Mr. Morgan. I have another table which shows that. This table also shows that the total illiterate population of persons over 10 years of age, including all classes, was 67,567, and that the percentage of illiteracy was 5.66. The total number of white illiterates in the State as shown by this table is 33,569, and the total number of foreign-born illiterate whites is 3,828. That makes a total of illiterates of white population over 10 years of age of 37,397. As shown by this table the total illiterate negroes over 10 years of age was 17,858, giving the percentage of illiteracy in the negro population as 17.7. The percentage of illiteracy among the negro population of voting age in Oklahoma City, as shown by this table was 6.2 per cent. 56 CONTESTED ELECTION CASE OF CAKNEY VS. MOEGAN. Later on I will introduce a table showing the percentage of illiteracy of the colored people in the couthern States in general. I do this to show you that it is a matter of fact that the colored population of Oklahoma, many of them are illiterate and unlearned, but yet 'on an average that population is far more intelligent than the colored population of the average southern State. And that is apparent and natural from the conditions which have existed in Oklahoma for 25 years, and the very fact that in the immigration no doubt more intelligent negroes immigrated from the Southern States rather than the less intelligent, and it seems to me rather remarkable that, taking the total population of the State of Oklahoma of persons over 10 years of age, the percentage of illiteracy is 5.6 per cent, while the percentage of illiteracy in Oklahoma City, of the negroes of voting age is higher than that of the population above 10 years of age, is only 6.2 per cent. In other words, the negroes of Oklahoma City of voting age, in point of literacy, as compared with the total population of the State over 10 years of age, is only 0.6 of 1 per cent below the average of the population of the State of Oklahoma. I would not have believed that myself if I had not found that in the Census reports. Now, I have prepared some other tables here, and I will give one copy of each of these tables to each member of the committee. (The tables referred to are as follows :) Table 2.- — Illiteracy of whites and negroes in counties comprising second congressional district. [Abstract Thirteenth Census of the United States, 1910, with the Supplement for Oklahoma, pp. 601, 603, 605, 609, 611, 613.] ' Negro. White. Negro. White. Alfalfa 82 89 34 13 3 1 53 50 54 186 65 36 124 75 52 1 4 286 25 57 126 Caddo . . (71) 33 74 156 Total Ellis.. 513 1,166 Table No. 3. — Shoiving majorities received by Democratic candidates for State offices in Oklahoma County. [Taken from printed report of secretary of State election board.] Candidates for United States Senate : Owen, Democrat 7, 552 Dickinson, Republican 4, 920 Owens's majority 2, 632 Corporation Commission: Love, Democrat 7, 172 Lowen, Republican 5, 208 Love's majority - L 964 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 57 Presidential electors: Elector, Democrat 6, 900 Elector, Republican 5, 763 Democratic majority 1, 137 Congressmen at large : Murray, Democrat 6, 692 Allen, Republican 5, 503 Murray's majority 1, 189 Thompson, Democrat 7, 005 Brown, Republican 5, 506 Thompson's majority 1, 499 Weaver, Democrat — 7, 098 Brownlee, Republican 5, 171 Weaver's majority 1, 927 Congressional, second district: Carney, Democrat 6, 837 Morgan, Republican 5, 936 Carney's majority. 901 Table No. 4. — Showing pluralities received by Democratic candidates on the State ticket in the second congressional district. [Taken from printed report of secretary of State election board.] Democratic United States Senator, plurality 3, 515 Democratic presidential electors, plurality 818 Democratic Congressmen at large: Weaver's plurality 565 Murray's plurality 475 Democratic justice of the supreme court, plurality 480 Table No. 5. — Negro population and negro males of voting age. [Abstract, Thirteenth Census, 1910, with supplement for Oklahoma, pp. 600, 602, 604, 608, 612, and 601, 603, 605, 609, 613.] Counties. Population. Negro males of voting age. Counties. Population. Negro males of voting age. Alfalfa 5 12 1,434 1,178 823 2 291 52 2 1 4 376 358 290 1 80 17 1 4 90 9,227 1 3 9 2 22 3,068 1 1 6 13,133 4,228 Ellis This does not include Grady and Roger Mills Counties, small parts of which counties are in the second •district. Census shows no negro voters in Roger Mills County, and there are only two country precincts of Grady County in second district. 58 CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. Table 6.— Illiteracy of negroes of voting age in Southern States. [Thirteenth Census of the United States, population, vol. 1, pp. 1258, 1259.] Below is a table showing the percentage of illiteracy of negroes of voting age in the States named: Mississippi 41 Arkansas 28 Louisiana 48 Texas 29 Oklahoma , 20 Virginia 36. 3 North Carolina 38. 6 South Carolina 43. 1 Georgia 41. 6 Kentucky 34. 3 Alabama 43. 4 Percentage of illiterate negroes of voting age in Oklahoma City (Census report, p. 1264), 6.2. Mr. Giddings. What census were those figures taken from, Mr, Morgan ? Mr. Morgan. The Thirteenth Decennial Census, and the page from which they are taken is noted. Now, Mr. Chairman, at first I want to discuss Mr. Taylor (interposing). What does this marginal matter mean on Table No. 2 ? Mr. Morgan. That is the counties, including the counties in the second congressional district of Oklahoma. There is a small part of Caddo County and a small part of Roger Mills County in the country districts — two townships in Caddo County and three or four in Roger Mills County; and I could not find the statistics for those parts of counties; but that will be inconsiderable, because it shows that there is not a negro living in Roger Mills County. Now, Mr. Chairman, I want to discuss the evidence as to whether or not the grandfather clause was fairly enforced. We say it was fairly enforced. I first call your attention to the fact that the so- called grandfather statute The Chairman (interposing). You will prove, or you claim that that clause was fairly enforced ? Mr. Morgan. I insist it was fairly enforced, and notwithstanding that fact that I was elected. I want to call your attention to the language of this amendment, which gives the only direction in the constitution or in the statutes as to how this grandfather clause should be enforced. The constitutional amendment says : Precinct election inspectors having in charge the registration of electors shall enforce the provisions of this section at the time of registration, provided registration, be required. Should registration be dispensed with, the precinct election officers, when electors, apply for ballots to vote. Under that section the election officers, where registration is required, is the supreme authority, and the only authority for enforc- ing that provision. And where registration is not required the elec- tion officer is given this authority. It does not say how the election officers shall enforce it; it does not say what tests shall be given, or anything of that kind. It is simply a broad, general statute giving, you might say, unlimited powers, but yet giving them no instructions as to how to enforce that law. As I understand it, there is no statute doing that. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 59 The supreme court has passed on another case, and I want to call your attention to that case, which is the case of Ex parte Show, and reported in the Criminal Reports at page 416, and in 113 Pacific Reporter at page 1062. It is printed in the record, beginning at page 200. Speaking of the manner and method of how election officials may test voters, and under what conditions they may allow them to vote, I want to get this particularly in your mind. It says on page 209 : If the election officers know that such person possesses the requisite qualifications, they need not apply any test. That is what the Supreme Court of the State of Oklahoma says, the highest authority which we have, and it is a Democratic authority, too; and I am glad to say that as a whole the people of the State of Oklahoma, regardless of politics, have respect for the judges of our supreme court, although it is entirely and exclusively Democratic. The court goes on to say: If they are satisfied from the person's affidavit that he can read and write any sec- tion of the Constitution they may act upon that and permit him to vote. First, if they know he possesses the qualifications they ma j let him vote; and, second, if they are satisfied from any affidavit he files that he is qualified to vote, they may permit him to vote. Then the court goes on to say: If they are not satisfied therefrom, they may lawfully apply the ultimate test of requiring such person in their presence to write a section of the Constitution of not unreasonable length. Eeyond this we can not go. And if they apply this test it is their duty in good faith to give the person an opportunity of fulfilling it, and when he has reasonably fulfilled the requirement to permit him. to vote. There is something in that. Our supreme court, Democratic as it is, construing a law that was more or less political, as we all will admit, yet that supreme court, representing the people of the State, and being Democratic, says: And when he has reasonably fulfilled the requirement to permit him to vote. Such a test is not unreasonable. It affords the highest, best, and ultimate proof of the pos- session or want of the qualification involved. The elector can not prescribe his own method of proving his possession of this qualification so as to preclude the election officers from denying, disputing, or rejecting his proffered affidavit and applying to him the ultimate test contemplated by the amendment. If he could, it would be easy to practically nullify the amendment. Mr. Oglesby. Let me get your contention along that line. As I understand it, in cities of the first class — and how large a population do they have to be cities of the first class % Mr. Morgan. As I understand it, they have to have a population of 2,500. Mr. Oglesby. In such cities you have personal registration ? Mr. Morgan. Yes, sir. Mr. Oglesby. And the registration officers have discretion in the matter of permitting a man to register; that is, before he can register he must show that he is qualified ? Mr. Morgan. Yes, sir. Mr. Oglesby. Then, in the same way, if a man comes there to regis- ter, and if the registration official knows that he can read and write this test is unnecessary; it is unnecessar3 T for the official to ask him 60 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. that; it is like trying" to test a man who asks for a license to marry by asking him whether he is white or black ? Mr. Morgan. Yes, sir. Mr. Oglesby. Then they give him a certificate when he registers ? Mr. Morgan. Yes, sir. Mr. Oglesby. Having that certificate, when he comes to vote, it is not necessary for him to go through a second test, if he has that certificate ? Mr. Morgan. Yes, sir. The Chairman. Unless they want to put him through it. Mr. Morgan. Right there let me answer that, and read you what the Democratic State supreme court said. Mr. Oglesby. All I was trying to do was to get in my mind what your contention is. Mr. Morgan. I will quote to you again from the same case from which I have just quoted, the case of Ex parte Show, in which they indicted a man Mr. Giddings. Did they convict him? Mr. Morgan. No, they did not. If he was registered that estab- lished his qualifications as far as the educational test was concerned, and if he was registered in October, then under the amendment, the grandfather clause, in the absence of fraud in the registration, that established his qualification, so far as the educational tests were con- cerned. That is what the supreme court of Oklahoma said, that in the absence of fraud that the registration certificate gives a man authority to go there and vote. Of course, if it is fraudulently ob- tained upon false information, or if there is evidence before the men who are conducting the election that they had been deceived in some way, of course fraud vitiates everything in elections as in other things, but the Supreme Court says, in the absence of that, that he was en- titled to vote, and these gentlemen all know that in Oklahoma City the storm center of the negro population is in my district, that is the rarest thing that any election officer attempts to question the election certificates. I can see they would have a right to do it in case of fraud, because that is what the Supreme Court said. Mr. Russell. Oklahoma County was the only county in your dis- trict where they registered ? Mr. Morgan. No, sir. Mr. Russell. What other counties ? Mr. Morgan. El Reno, I think, and I think in Caddo County and several other cities. Mr. Russell. What is the negro population there ? Mr. Morgan. Seven or eight hundred negro population in Caddo County, but there is not a line of evidence as to how those negroes voted or how the election was conducted. Mr. Oglesby. In those cities where they had personal registration, your understanding of the law is that the discretion vested in the registration officials in the other towns where they did not have regis- tration, that that discretion was vested in the election officials ? Mr. Morgan. Un questionably, by the constitution and by the deci- sions in the supreme court of the State. I want to read you another paragraph in regard to the force of a certificate of election in this same case: CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 61 On the other hand, if he had registered in October and duly presented his certificate of registration to the election officials when he applied to vote, in the absence of fraud in his registration, of which there is no legal presumption, he would have been entitled to vote, and if under those circumstances the petitioner had insisteo. upon applying to him the test alleged, and refused to permit him to vote until he should fulfill that test, intending under color and pretense of such test to defraud Blakemore of his right to vote, a right, which, so far as the educational test was concerned, had already been determined at the time and by the person designated by the amendment to determine it, such act would have constituted an offense. In passing upon Blakemore's case, where he is charged with crime, it appeared that when the voter had presented a certificate, in the absence of fraud, if the election officer, Blakemore, had persisted in requiring some other test and had refused to allow him to vote, he would have been guilty. Mr. Giddings. Do you agree with Mr. Boardman's contention that the precinct election officials are quasi- judicial officers 1 Mr. Morgan. I have not studied that question. Mr. Oglesby. Since that has been brought up, may I ask Mr. Gid- dings this question in connection with it ? I notice in your brief, Mr. Giddings, and I think it must have gotten in there by inadvertence, at the bottom of page 38, you say: "We call your attention to the elementary proposition of law that neither the county election board nor the State election board had judicial powers, that each had to take the returns as sent to them by the precinct election officials; that both the county and State election boards were composed of ministerial officers, and that they did not have even quasi judicial powers, as the letter of the United States district attorney stated they possess. All lawyers know that election officials merely act in a ministerial capacity in the count and canvass of the returns." Mr. Giddings. That is an inadvertence. Mr. Oglesby. That letter Mr. Giddings (interposing). Refers to precinct elections; that is an inadvertence. Mr. Oglesby. That is what I thought, and that is what I wanted to find out. Mr. Giddings. Unless there is something else in the letter Mr. Oglesby. No; I went over it very carefully. Mi*. Morgan. Ordinarily I do not think the election officers have quasi judicial authority, but it appears, and we have many unusual things in our constitution, and some of them are very excellent, but yet, on the face of it, it appears that we have given the election officers who enforce the law quasi judicial authority. Is not the power to question a man and make him read and make him write and passing upon his reading and writing arbitrarily, is not that a quasi judicial power and authority ? Most of the gentlemen on this committee are lawyers, and I ask them if that is not quasi judicial authority. Now, more than this, I will point out this right here: If a man is challenged for some cause, for nonresidence, for instance, as I under- stand the law, and I think it will not be disputed, and if he makes an affidavit covering that point, the election official is compelled to receive his vote. 62 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. McGuire. May I correct you right there, with the permission of the chairman of the committee ? I think you will find the law is this: He makes his affidavit and then if the inspector of elections also makes a statement or affidavit then the applicant is not permitted to vote unless some one living in the county for one year, knowing this applicant, makes an additional affidavit in support of the claim of the applicant to vote. In that event they must take his ballot and mark it. Mr. Morgan. That is the general principle. In regard to all other questions, so far as the qualifications by proper affidavit are con- cerned, a man's vote must be received, and the enforcement of the grandfather clause the inspector is there, absolute in his power to receive or refuse the vote. Mr. Oglesby. He passes on the qualification; there is no appeal from his judgment, except it is claimed he acted fraudulently or so disregarded his duties that it amounted to fraud. Mr. Morgan. You can not get the vote in except by contest; you might have it counted in the end, but you do not get it deposited in the ballot box. Mr. Giddings. But he could mandamus the election officials ? Mr. Morgan. He would have a great time on election day, would he not? They have held that you could not, before the election. Somebody tried to contest that. Mr. Giddings. That was by injunction. Mr. Morgan. By attempting to enjoin them. Mr. Oglesby. In our State, in order not to permit a man to be divested of his right to vote, whenever there is a contest of that character, they swear his vote in and his ballot is marked for iden- tification, and it is counted. That gives you an opportunity to detect any fraud, whereas, if it had not been cast at all, there is no way in which the vote would be counted if it is not deposited in the box. Mr. Giddings. That would apply in Oklahoma. Mr. McGuire. Not in the case of the grandfather clause. The inspector is the supreme judge in the case of the grandfather clause. Mr. Giddings. Suppose there was a fraudulent act; would he be the supreme judge ? Mr. Morgan. Now, then, I think I have given you a clear idea of what the Supreme Court says as to how this law should be enforced, and what would be a reasonable fulfilling of the requirements. Now, then, we contend that so far as the record shows, in every precinct where there has been any evidence introduced that it shows in regard to the negroes who voted, first, that they were all tested on the election, and, second, that they presented a registration certifi- cate, which in itself is prima lacie proof that the negro was qualified, or, third, he had been tested at the primary held in August, preceeding the election, by the inspector, in the general election of 1910, and was passed by the inspector on the day of the election by reason of his having passed the test satisfactorily at such prior elections, or, fourth, the fact that his being able to read and write was a matter of such common knowledge in the precinct in which he offered to vote, or of personal knowledge by the inspector, that the inspector passed him without the test. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 63 And we also claim that if the evidence submitted by the contestant proves this to be the case, then the letter and the spirit of the grand- father clause was observed, the election was fairly held, and the contestant has failed to overcome the plurality of 891 votes given the contestee, and the election of the contestee should stand. In other words, the contestee claims that even with the strict enforce- ment of the grandfather law, as shown by the evidence, he was elected by a plurality of 891 votes, and the contestant, not having shown how the 15 negroes in Luther Township voted, there has been no evidence whatever offered by the contestant to overcome this plurality. I want to ask if the members of the committee will take the record and go over some of this testimony with me, because this is a sort of a school which we have to conduct in a case of this kind. I will ask you to take the record, and I will point out the pages to you and quote the testimony which I want to particularly call to your attention. Mr. Taylor. The- record does not disclose how many negro votes 3'ou received, does it ? Mr. Morgan. No, sir. It does not show how many negro votes I received; only in an indefinite way shows how many negro votes were polled. Mr. Oglesby. There is nothing to show how many negro votes either of the nominees received, unless we could take judicial notice of the fact that they voted the Kepublican ticket. The Chairman. I think that is stretching the doctrine of judicial notice pretty far. Mr. Morgan. Now then, I want to take up the first witness. The first township in regard to which testimony is shown in the record was Dewey Township. The first witness introduced, Mr. W. I. Davis, in testimony which begins on page 28. Now then, I would like the members of the committee to notice what Mr. Davis testified to in regard to the effect of this circular upon him, in his direct examination, and then I want to call attention to what he testified to in his cross-examination upon the same point. All these witnesses which I will quote to you are witnesses of the con- testant, they are not my witnesses, but the witnesses of the con- testant. On page 31, near the bottom of the page, Mr. Davis testified as follows : Q. You may state what effect, if any, the receipt of those notices had upon you in the enforcing the election laws of the State. Then there was some objection made, and the witness gave this answer : A. They made me afraid to enforce the grandfather clause. Then at the top of page 32, he is asked this question: Mr. Giddings. Now, I want you to go ahead in detail and state what occurred in your precinct in the last general election with reference to negro voting; just say how many negroes came there and the effect it had. A. There was about— there was 48 negroes voted in the general election, I believe. There was quite a number, but I am not able to say just how many voted by filing with me what they called qualification. And there was some admitted they could not qualify, and I told them I would not prevent them from voting; that is, I mean to say that there was a few that didn 't pretend to try to qualify; there was two that tried to 64 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. qualify and failed, then I told them — they asked then for permission to vote, I said I would tell you you shan't vote, hut I will tell you what I will do. If you vote I will protest your vote and that will be carried to the county attorney, and it will be with you and him whether you voted illegally or not, and then I read them the law on illegal voting. Those two after quite a while they got up and went out. They didn't ask for ballots, but others came in and filed with me what purported to be, as they would consider it, I suppose, a qualification, called for ballots and voted. I did not consider them qualifications, but still they claimed — they claimed that they were and that would be up to the court as to whether it was a qualification or not, and therefore I was afraid to interfere with them voting. Then he was asked: Q. Are you a married man? — A. I am. Q. Were you at this time? — A. Yes, sir. Q. I hand you Exhibit C and D; mark them. (Marked Exhibit "C," and "D.") Q. If it had not been for the receipt of Exhibit A and Exhibit B would you have permitted those negroes to have voted? And his answer was, "I would not." Mr. Taylor. What are the exhibits ? Mr. Morgan. Those exhibits are the affidavits^I am going to read them to you — or rather, they are the warning circular and the Board- man letter. Mr. Rogers. I think there is probably some mistake in the ques- tion, because Exhibit A is the amendment to the constitution of the State of Oklahoma as set out on page 8 of the record, Exhibit B is the Boardman letter, and Exhibit C is a warning circular. Evi- dently there is a little confusion in the questioning. Mr. Morgan. That may be. Now, turning to page 33, we will see what this same witness answered on cross-examination. These are the questions which I want to refer you to, on page 33: Q. How many negroes besides Alek Morgan and Joe Ashford wrote out such quali- fications before you? — A. I can't tell you exactly as to the number, but between 45 and 50. Q. Now, this 45 or 50; they all wrote out their qualifications and took the test? — A. In writing; yes, sir. Q. Did you require them to read any part of the constitution? — A. Those that wrote, I did. Q. Now, you say there were several who came to your voting precinct there — came into the voting place and admitted that they could not vote? — A. That they could not qualify under the grandfather clause. Q. That they could not qualify under the grandfather clause? — A. Yes, sir. Q. Now, they didn't vote, did they? — A. There was two that presented them- selves that attempted to qualify. Q. And could not make it? — A. And admitted then that they could not make it. • Q. Now, were there any negroes in that precinct who voted who did not qualify by writing some part of the constitution of the State of Oklahoma? — A. Yes. Q. How many were there? — A. I believe four. Q. Four; what were their names? — A. Y. A. Watson was one. Q. Y. A. Watson; who were the others? — A. And a school-teacher by the name of Anderson was another. Q. Do you know his initials? — A. No; I don't remember his initials. And a school- teacher—I forget his name — that teaches in Dewey Township; I think it is Brite, it seems to me, but I would not be positive. Q. Who is the other one? — A. A man by the name of Smith; I forget his initials— and the two that attempted, oh. Q. Who were the two that attempted and could not make it and who did not vote? — A. One was named Morgan and the other McLain. Q. What are their initials? — A. Those two, and then there was Jones — McLain; I am mixed on that. McLain and Jones did not try to qualify; they didn't try to read or write. CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 65 Now, then, go down a little further on page 34, and this occurs : Q. Now there is four who voted without qualifying? Y. A. Watson — can he read and write? — A. Yes; he was a justice of the peace. Q. Answer the question, — A. Yes. Q. Now, W. H. Anderson, the school-teacher — can he read and write? — A. He was vouched for, and a school-teacher, and he was allowed to vote by being vouched for by one of the Q. You didn't require him to take the tests? — A. No. Q. You didn't require Y. A. Watson to take the tests? — A. Didn't ask them to. Q. Now, as regards Brite, what do you say he does? — A. He was a school-teacher. Q. You didn't ask him to qualify? — A. No; I didn't. Q. J. B. Smith — did you ask him to qualify? — A. Yes; and the clerk of the election board vouched for him. I didn't know the man and didn't know whether he can read or write; so he vouched for him being able to read and write, and he voted. Now, I submit to you gentlemen, as honest, candid men Mr. Rogers. This was not the place where there had been previous registration ? Mr. Morgan. No, sir; that is his own witness's cross-examination, going into detail, and showing absolutely that there were only four who were not tested, and they were the school-teachers and justice of the peace and he knew they could read and write, and they were vouched for. What do you think about a man coming and seriously contending that the law was not reasonably enforced, as the Supreme Court says ? Now, there is another witness as to Dewey Township on page 36, Mr. T. J. Clark, who is a good, honest farmer. I would like you to turn to page 37, about one-third of the way down the page, where Mr. Giddings puts this question to him: Q. What effect, if any, did they have upon you in the enforcement of what is called, or commonly termed, the grandfather clause of the State? Mr. Morgan. Is this gentleman the Clark that was counter or clerk? A. Clerk. No; I didn't have anything to do with the enforcement, but I was afraid that we would have trouble. We didn't only get them notices, but we got other — I got other notices that there would be trouble there. Q. What were those other notices? — A. The night before election one of the counters came to me and told me — he said, " I wish I could get off of this board; there is going to be trouble there to-morrow." Q. Did you fear trouble there the next day? — A. Yes. That is what he testified to on his direct examination. Now, then, turn to the testimony of this same man on page 38, his cross-examination near the bottom of the page: Q. You saw Mr. Davis testing these negroes, did you? — A. Some of them. Q. You were in the same room? — A. Yes, sir. Q. And he was testifying correctly when he said he tested about 40 negroes there? — A. I think Mr. Davis did not just understand that question, or else I have got it wrong. I don't think Mr. Davis tested any of the negroes that day that he tested at the primary election; that is that he passed on at the primary election, except a few. That was my judgment; now I would not say positively, but that was my judgment of the way the thing was done. Mr. Broussard. Did these inspectors of election hold the office for any given period of time, or were they selected for each election ? Mr. Morgan. They held office for four years. Mr. Broussard. They were permanent election officers ? Mr, Morgan. Yes. Mr. Broussard. So that if one is tested in one election the recollec- tion of that test in the mind of the inspector would be sufficient for him not to repeat the test again ? 46996—14—5 66 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Morgan. Yes; they are appointed as their own successors. Now, I want to call your attention to the testimony of Mr. Clark at the top of page 39: Q. In other words, your remembrance of it is that Mr. Davis passed these without testing whom he had tested in the last primary?— A. That is my judgment; I vouched for some myself, and he didn't test them, I know. Q. Do you know Mr. Y. A. Watson?— A. Yes, sir. Q. Was he tested?— A. No, sir; I vouched for him. Q. You vouched for him; you know that he can read and write? — A. I do Q. And W. H. Anderson?— A. I didn't for him. Q. Do you know Mr. Anderson? — A. I know him when I see him. Q. He is a school-teacher out there?— A. I have heard he was, but I don't know it. Q. This Mr. Brite — what are his initials?— A. I don't know him at all. Q. Do you know J. B. Smith? — A. Yes, sir. Q. Can J. B. Smith read and write? — A. Yes, sir. Q. You vouched for him? A. Ye3, sir; if you will let me explain this, I can do it so you will understand what I mean. Davis told me anybody that we knew was all right — there was no use in putting them to the test — and he says anybody that you know is all right and you let me know, they will go. It will hurry things; we want everybody to vote. Now, I will ask you to consider the testimony further down, toward the bottom of the same page: Q. I am asking you — were there any negroes there who voted on that day who can't read and write that you know of, and if so, give their names. — A. I know lota of them who can't read their own writing after they write it. Q. I am asking you; read the question. (Question read.) A. I would not; I don't know as I could give their names. Q. Do you know of any? — A. No, I didn't know Q. You don't know of any? — A. I know there was lots that I would not pass; when I was inspector I didn't pass them. Q. But all you voted there you either know they could read and write or they passed some sort of a test? — A. I guess so. Q. That is right, is it?— A. I think they did. There are two of his own witnesses. If those negroes were not given a test fully up to the standard, as laid down by the State supreme court, then I certainly have not got my right mind. Now, I can not feel that there is a single gentleman here, a single one, who could for a minute throw out that precinct on the ground that the grandfather clause was not properly enforced. I think it is creditable to the Democratic election officials there, even if there are some men, as there are in all political parties, that are such extreme partisans, or perhaps take an unwarranted view of the things men may do to sustain its policy, that would want them to enforce the law as they did in another case here, and I want to read you now a case to show how the law was enforced, and how it might be enforced. I want to show howl this law might be enforced. The case of Snyder v. Blake, in the 35 Oklahoma Reports, at page 294, the opinion was filed October 22, 1912. This comes under the grand- father clause where one county officer brought suit for the office that he claimed he had been defeated from by reason of the fact that the negroes who were qualified were not allowed to vote, and in its opinion the supreme court of the State said: A large number of persons, variously estimated from 250 to 400, mostly negroes, congregated at the polling place at Vans Lake on election day. Many of them came for the purpose of voting. Some of them offered to qualify as voters, but were refused permission to do so, because the election officers were engaged at the time in exam- CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 67 ining other persons as to their qualifications. One person, who had been a teacher in the public schools and had taught 30 years, was admitted to the booth and ques- tioned concerning his qualifications to vote; and, upon being required to read and write a portion of the constitution, he read seven or eight pages of the constitution and was then given a tablet and pencil to write. One of the officers read slowly to him from the constitution, and the proposed voter wrote as he was dictated to until he had written some 21 pages. After he had been detained in the booth for 2 hours and 15 minutes, he was held by the election officers not qualified, and was denied the privilege of voting. Another person who had been the principal of a school for five years made applica- tion to vote; and, upon its being determined that he would be required to read and write a section of the constitution, he read a section of the constitution, and thereupon proceeded to write dictations in the booth for an hour and 30 minutes, during most of which time he was employed in writing, and at the end thereof was pronounced dis- qualified to vote. Practically the entire day at this precinct was consumed by the election officers in the examining of eight persons, and the other persons at the polls who desired to offer to vote and be examined touching their qualifications therefor were denied the opportunity to do so. At another precinct no negro was permitted to vote unless he could immediately memorize a section of the constitution selected and read to him by the election inspector and write the same from memory. At this pre- cinct there were 40 persons present for the purpose of qualifying themselves to vote under the foregoing provision of the constitution. Of this number 37 could read and write; but under the rule adopted by the board requiring such proposed voters to memorize immediately any section of the constitution read to them and to write the same, none was able to qualify, and all were denied the privilege of voting. The con- duct of the election officers at these precincts can find no justification in the law, and their protest that they acted in good faith was refuted by their conduct. Mr. Taylor. Is that a Democratic court ? Mr. McGuire. That is a Democratic court. Now, gentlemen, that was the way they enforced the law in 1910 in that case. The citizens of Oklahoma, regardless of poliitcs, do not approve any such action as that. Mr. Michener. And neither do the courts. Mr. Morgan. The people of Oklahoma are not just like any north- ern State or any southern State. It is true we have a Democratic majority, but a somewhat militant Republican vote, and a strong progressive society there, and you can not make it like any other State, and a great majority of them adopted the grandfather clause, it is true, and when they voted for it they wanted the law enforced in a reasonable, fair, just, and honest way. Now, then, take Oklahoma County. I do not know of anybody complaining of the way the election was carried on there by the Democrats. Republicans might complain, but Democrats do not. There were five Republican officials elected in Oklahoma County, county officials, at that election, three on the general county ticket. Two were county commissioners in a county that went Democratic as high as 2,600 majority for Senator Owen, and yet there were five Republican candidates elected in that county. No Democratic can- didate has ever questioned the right and authority of that election, and no contest was prosecuted by anyone of the five defeated Demo- cratic candidates in Oklanoma County because the election officers did not enforce the grandfather clause, not one; because tney know that the general opinion is in that country among the people that the election officers did enforce that in a fair and reasonable way. But I promised to keep to my text. Mr. Bowdle. Is that testimony whicn you recited a few moments ago all the testimony covering that particular precinct? Mr. Morgan. Every line and word of it. 68 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Bowdle. Is there other testimony on that? Kr. Morgan. I read from the witnesses — I did not read all the testimony of the witnesses. Mr. Bowdle. I understand that. Mr. Morgan. Mr. Davis filed an affidavit which was known, I think, as Exhibit K5, I think, as a protest against issuing me the cer- tificate. That is not in tne testimony, but it is there as one of the exhibits. Mr. Bowdle. How does it come about that tne witnesses say that the warning circular which has been referred to inspired fear in them, and yet they seem to have gone ahead and to have applied some sort of a test under the grandfather law ? Mr. Morgan. Tnat is what I have been wondering. Mr. Bowdle. It is simply an inconsistency in the testimony. Mr. Morgan. Yes, sir. I might say a good deal worse, but I would not, because these men were men, I think, honest, and you have to take the whole testimony, and there it is. Now, I come to Luther Township, as the testimony is given on page 40. There you will find the testimony of Lewis Vorel, of Luther Township. On page 41, on direct examination, Mr. Vorel testified: Q. Approximately state how many negroes there are in your precinct, male, over the age of 21 years, if you know.- — A. Well, the way T have of knowing is from the way they turn out at elections, and there is about two-thirds negroes in our township; of voters we have right near 120 negroes and 60 odd whites. Q. How many of these negroes presented themselves, in November, 1912, at the election to vote, if you know? — A. Why, I think right near the number I have stated, 120, as near as I remember it. Now, passing over to page 42 we find this testimony: Q. I will rehand you contestant's Exhibit B and ask you have you ever seen a similar circular? — A. Why, I didn't receive this — it was after the election — in the mail. Q. When McNeill handed you the circular marked, headed, "Talk it over with your wife," did you read this circular? — A. Yes, sir. Q. What effect, if any, did it have xipon you? I mean, in the performance of your official duties? — A. Well, I didn't like to take the responsibility on the face of that and we handled the election in a different way from what we would have if that hadn't come up. Mr. Morgan. I hope he didn't mean he would handle it like they did in the case I read about in the decision of the Supreme Court, Mr. Taylor. He tells how he handled it. Mr. Morgan. Yes. Mr. Chairman. He goes on to say how he handled ? Mr. Morgan. Yes. This is the testimony: Q. In what way did you handle it different? — A. We let 14 to 15 negro voters cast their ballots on their own responsibility that we would have denied, they claiming and not being able to read and write . Q. How many negroes, if you remember, did you give the test to that day? — A. Well, not very many; not over 10 or 15, outside of these. We had been acquainted with those parties and they had been refused ballots at previous elections, two years before. Q. You knew then from previous acquaintance that they could not take the tests? — A. Yes, sir. Q. They had been tested, had they, at a previous election? — A. Yes, sir; and also at this one . Q. What was the results of the previous tests? — A. Well, on the question whether they could read and write, some of them said they couldn't, and them that claimed they could we tested and the others found out they couldn't by actual test. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 69 Q. These 14 or 15 that you speak of, did they cast ballots in November, 1912, elec- tion? — A. Yes, sir. That is on his direct examination. Now, if you will turn to page 43, on the cross-examination — of course we concede that the evidence shows that there were 14 negroes who voted who could not read and write, but of course there is no evidence to show for whom they voted. If they voted and could not read and write, the election officers probably had to help them. There is no evidence of how they voted, or for whom they voted and the evidence shows that these 14 ballots were put on a string and kept separate and sent to the county election board, and they could have been procured. We concede that there were 14 voters who could not read and write. Now, on page 43, under cross-examination, this testimony was given : Q. You tested and gave the test prescribed by the grandfather clause to 10 or 15 negroes; is that right? — A. Outside of these I already mentioned; yes. Q. Now, how did these 10 or 15 come out on their tests? — A. Very near all quali- fied. Q. How many did qualify? — A. Well, sir, I don't know. I am ready to say that all of them. They tested the 10 or 15. Q. Now, there were 10 to whom you gave the tests there, and they qualified, or 15 was it? — A. Yes, sir. Q. And then there were, you say, 120 negroes voted? — A. About that many, yes, sir. Q. So there were 90 who voted without tests and who were qualified? — A. I think so; yes; as nearly as I can remember, people that had been recommended in previous elections and voted, and some that we knew personally. You see that at that time they did for some reason let the 14 vote, they say, but all the others absolutely have testified that they had been tested at some previous election, and were allowed to vote. Now, at the bottom of the same page, page 43, we find this testi- mony: Q. Now, Mr. Vorel, notwithstanding the fact that a paper similar to that heretofore in evidence as Contestant's Exhibit A, you went ahead and tested these 10 or 15 negroes in accordance with the grandfather clause; is that right? — A. Yes, sir. Q. And these 90 negroes, whom you didn't test, you didn't test them because you say you knew from previous experience or from your information of them that they could pass the test? — A. They had been voters before. Q. That is right, is it?— A. Yes. Why, here was a man who said that this so-called circular prevented him from enforcing the law, who, on cross-examination, swears that outside of these 14 men, and he even tested those 14, that he was intimidated and afraid to enforce the law, when every man there was put to the test, unless they knew that he had been previously tested and qualified. Mr. Russell. Are these the only votes which you admit were improperly cast ? Mr. Morgan. The only 14 votes we admit the record shows. Mr. Russell. The only votes of any kind that you admit were improperly cast ? Mr. Morgan. We do not admit they were improperly cast; we admit the evidence shows that they were not qualified to vote under the grandfather clause. Mr. Russell. Throughout the whole district? 70 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Morgan. Throughout the whole district, and I will pause here to say if the attorney for the opposite side will point out to the committee in the record where it shows that outside of these 14 votes, where there is any specific and definite evidence that there was a single vote cast besides those 14 votes, except what were qualified or tested in some way. Mr. Stafford. You referred a moment ago to the fact that in Oklahoma County five Republicans were elected on the county ticket, and Senator Owen had received a plurality of 2,600 votes in" that county. Did Senator Owen in that campaign have any contests on ? Mr. Morgan. Certainly he did. Mr. Taylor. Is that in the record anywhere ? Mr. Morgan. No, sir; that is, I guess, on a par with some of the statements which counsel for the contestants presented here. I will say if you will look at Table No. 3, which I have already intro- duced, and which has gone into, the record, you will find there figures taken from the printed report of the secretary of state which shows that in Oklahoma County Senator Owen carried it by a majority of 2,632; that Mr. Love, county corporation commissioner, carried it by 1,964; that the presidential electors carried it by a majority of 1,137; that Congressman Murray carried it by a majority of 1,189; that Congressman Thompson had a majority of 1,499 ; that my genial, eloquent, and able friend, Claude Weaver, who is present here, carried his county by a majority of 1,927, and that Mr. Carney's majority in that county was 901, running a thousand votes behind my friend Weaver and about 500 votes behind Thompson, and nearly 300 votes behind Murray, and 1,700 votes behind Senator Owen. Right in that connection I want to call your attention to Table No. 4, a table compiled from the same authority. For the whole of the second congressional district, the Democratic United States Senator carried the second congressional district by a plurality of 3,515; the Democratic presidential electors carried the district by a plurality of 818; and of the Democratic Congressmen at large, Mr. Weaver's plurality was 565, and Mr. Murray's plurality was 475. I am glad Mr. Weaver carried the district. The Democratic candidate for justice of the supreme court had a plurality of 480. Mr. Rogers. What did you carry it by ? . Mr. Morgan. Eight hundred and ninety-one honest votes, every one of them legal votes, except possibly the 14 which have been referred to. Mr. Oglesby. I understand your contention to be that in view of the fact that you had nothing to do with the sending out of that circular — that you did not do it; it was sent out without your knowl- edge and consent — that therefore the election, so far as you are con- cerned, could not be vitiated unless it was shown you received the benefit of this alleged intimidation; that you did not receive the benefit of it unless enough votes were permitted to be cast to change the result ? Mr. Morgan. Yes, sir. Mr. Oglesby. That is, that the definition of the term "benefit" could not include a situation where the number of votes you obtained through it did not change the result ? CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 71 Mr. Morgan. Certainly not. I want to discuss that particular feature later on. What I was going to say was that there is the second district. I have shown — not by absolute evidence, but I think it will not be questioned — that the Democrats on the State ticket carried that dis- trict. At the first State election in 1907 the Democratic candidate for Congress carried that district by 974 votes. At the next, a State election, I was the Republican candidate, and I carried it by 924 votes. Now, then, before the 1910 election the grandfather clause was put in force. These were stormy times for Republicans, even hi 1910; but I carried it that year by 1,070 plurality — more than in 1910. Now, then, this election comes on in 1912, when Republican con- ditions were still more disturbed; when, as it were, we were fighting against each other; and I went out as the Republican nominee in that district, with Democrats, political friends of my opponent, in full and complete charge of the election from the ground up to the top; and we Republicans who were candidates there at that time recog- nized that men in the excitement of politics, even good men, will go to extremes, sometimes, and do things they ought not to do; and then we have a suspicion that all the Democrats of Oklahoma are not just what they ought to be, as probably all the Republican politicians in the Republican campaign are not what they ought to be; and some of them might go to extremes to rob a man of the votes he is justly entitled to and countenance such a thing. And so in this hotly con- tested campaign I often wondered, not whether I would get the votes, but whether they would be counted honestly and I should get my just dues, knowing that all we get is from our political adversaries. I think I can say there was scarcely a night, as I would lie down to sleep, that I would not wonder about that; and yet through it all — - through all that heated election campaign and after it all — I had an abiding faith that the majority of those Democratic election officials, from top to bottom, wanted to do the right thing; and I would go to sleep with faith in the good purposes and honesty and patriotism of American citizenship; and they have never failed me yet, and so I come here with the same spirit. But I want to go ahead with the facts. Now, the next testimony I want to take up is in regard to Luther Township, on page 46. The witness there is Mr. B. B. Moore. In his direct examination, as set forth on page 47, he says: Q. What was the mood and conduct of these negroes at the polls that day? Sullen or was it the same as usual? — A. It was about the same as usual. Q. Was there sullenness exhibited there that day upon their part or any A. Only in one case. Q. What was that case? — A. A fellow who would not take the tests and who would not say he could neither read nor write, and we would not let him vote until he did. Intimidate him in holy fear of the Federal election laws, and yet they would not let that man vote until he took the test. He said he would give us trouble about it. Q. Did the negroes at the polls that day seem to know about this circular? — A. I could not say whether they did or not. That is his direct testimony. Now, let us turn to page 48 and see what he said on cross-examination: Q. Now, leaving out of consideration these 15 — 14 or 15 — the remainder of the negroes who voted there that day were qualified to vote under the grandfather tests 72 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. by reason of common knowledge, knowing that they eonld read and write or they were tested, were they not? — A. Yes, sir. Is it worth while to read any more testimony, when it is as clear as that ? So Dewey Township has a clear record, and Luther Township has a clear record with the exception of the 14 or 15 votes mentioned. Mr. Oglesby. You think they could not bluff those fellows down there ? Mr. Morgan. Not very much. I might say, of course, my theory is that it was the decision of the courts, whatever effect that had, which had any effect; I do not know; it is only an opinion, but what the decision of the Supreme Court in convicting two election officials did have some effect, and in the light of that case which I read to you it was not improper that a little sobering-up process should go on. I refer to the case of Snyder v. Blake. I do not think the circular had very much effect. It was the decision. That was a matter of considerable notorietj^. It was discussed freely and often in the newspapers. They all knew down there that two men had been convicted and it was a serious matter. Who was to blame? Cer- tainly I am not to blame for it. I am not to blame for any of the election laws. I think if I had been making the grandfather clause, if I had wanted to make it, I would have made it more specific in its wording; I would have put in there some specific and definite pro- vision to show the process you should go thiough. I sometimes wonder — at least I have heard people suggest that it was left indefi- nite and uncertain in order to leave the absolute power in the hands of one side. I do not believe that, but I do think it ought to have been made more certain. Mr. Broussard. The original grandfather clause in the State of Louisiana requires that within 12 months everyone who desires to avail himself of the provisions of that clause shall register himself under it, and that that roll, so made up, shall become a permanent roll, and thereafter no one should qualify under it again. So that while people do vote in Louisiana, recently they reopened it for six months for the registration of those who failed to do so during the first 12 months, because a great many of them refused to qualify under it, and yet that roll is a permanent roll; a record of it is filed with the secretary of state and is available to anyone who wants to see it. Mr. Stafford. How large a roll is that ? Mr. Broussard. Not so very large. Mr. Morgan. He is talking about registration; we were talking about the force a registration certificate should have. In the precinct election board, among the precinct election officers, all parties are represented, but in the registration there is no such representation. There, there is only one man. The Democratic election officer or the Republican officer, as the case may be, con- ducts that complete registration. He is clothed with absolute power, you might say, as to who should be registered, and in the secrecy — I do not know whether they do it in secret, although they sometimes claim they do; at least he has the absolute power, one man has the absolute power over the registration, which, of course, adds value to it, and shows that the fact is not necessary that they should be tested again at the polls. Now, then, I want to go through all the precincts, the testimony in regard to all the precincts, and I CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 73 turn now to page 51 and take the testimony of Mr. T. H. Ray, of Luther Town. There is a precinct called Luther Town. There is a precinct called Town, and a precinct called Luther City. There are only 5 negro votes in Luther City. At the bottom of page 51 there is this testimony: Q. Those that voted could all read and write? — A. Yes, sir. Q. You knew of your own knowledge that they could read and write without testing? — A. There was one of them tested, Jule Thomas. Q. Jule Thomas was tested? — A. Yes, sir. Q. The balance you know can read and write? — A. Yes. Are you going to call any of the votes in Luther City in question when his own witness testified that they were all tested ? Mr. Rogers. Mr. Moore, whose testimony appears on page 46 — was he from Luther Township or Luther City ? Mr. Morgan. Luther Township. Mr. Rogers. On this typewritten memorandum which you have given us you have stated that the testimony in regard to Luther City started at page 46. That appears to be a mistake. Mr. Morgan. Yes; that is a mistake. Now, on page 52, in the testimony of Mr. H. E. Norman, from Luther Town, and at the bottom of page 52, on cross-examination, this testimony appears : Q. These five or six negroes out there were all qualified to vote, were they not, under the grandfather clause; that is, they can read and write? — A. Yes, sir; they can read and write. Q. How many were tested that day? — A. I don't think they tested but the one on the grandfather clause. They possibly tested another one as to his residence. I think there was a question Q. The balance of the negroes who voted there, the five or six besides the one who was tested and who passed the test, were all known by everyone — common knowledge there in the town that they were all able to read and write? — A. Generally known to the election officers; yes, sir. Do you want anything better than that ? Now, turning to page 53, to the testimony of Mr. Ed. E. Need- ham, of Greeley Township. In Greeley Township there were only five negroes who voted, and there is no evidence that they were tested, and there is no evidence that they were illiterate. The testimony of Mr. Needham covers only about half a page. In the middle of page 53 there is this testimony : Q. Did you receive any threats or structs to be intimidated out there that day in the enforcement of the grandfather clause? — A. Nothing more than we were threatened to be prosecuted by the central committeeman — one of the Republican central committeemen came up there — he came and told me he would prosecute me if I enforced the grandfather clause. I call your attention to the fact that there is one Republican central committeeman in a precinct where there are only five negro voters that did so far forget himself, I think, to go to an election officer and threaten to prosecute him if he enforced the law. But, gentlemen, I have searched this record from beginning to end, and I think that this is the only single solitary case out of 497 Republi- can precinct committeemen and Republican county committeemen, chairman and secretaries, Republican managers, State Republican organization men — there is not a line or a word to show — as far as I have been able to find that there is but this one Republican com- mitteeman who opened his mouth or uttered a word or did any act 74 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. that indicated he was trying to interfere with those men in con- ducting that election according to the law of the State. Mr. Stafford. Mr. Chairman, I do not wish to curtail the argument of our colleague, but I would suggest that, as it is so extensive, he would confine himself just to pointing out the pertinent facts, because the attorneys for the contestant just pointed out the facts, and I do not think it necessary to comment at length upon each case or instance. Mr. Morgan. I do not intend or mean to unnecessarily occupy the time of the committee. The next witness to whose testimony I desire to call the attention of the committee is Mr. Frank L. Kenyon, of Choctaw Township, whose testimony begins at the bottom of page 53. At the top of page 54 there is this testimony: Q. Did you receive similar circulars to Exhibits A and B handed you? — A. No, sir. Then, on cross-examination, just below that, about the middle of page 54, there was this testimony: Q. Mr. Kenyon, you were clerk there in Choctaw Township? — A. Yes, sir. Q. You say five or six negroes voted? — A. I said six or seven; there possibly might have been only five, but the best of my knowledge was there was seven negroes voted out there. Q. What was the names of those negroes who voted? — A. Oh, I could not attempt to remember them. I kept no record of it only on the stubs of the ballots. Q. These negroes were allowed to vote by the inspector — passed by him, were they? — A. Those of them that qualified to readily read the Constitution and that could legibly write their names. Mr. Morgan. They were allowed to vote? A. Yes, sir. Q. And none were allowed to vote except those who did pass the test? — A. No, sir. Mr. Morgan. That is all. Now, Mr. Chairman, notice that those negroes were allowed to vote — those of them who qualified to readily read the Constitution. Q. They were allowed to vote? — A. Yes, sir. That was in Choctaw Township; the testimony of his own witness. Now, I want to go to page 55, and show you some of the testimony of Mr. Morris S. Baker, of Oklahoma Township. This was Mr. Baker's testimony on direct examination : Q. Did any negroes vote in that township? — A. Yes, sir. Q. How many? — A. What was the question? Q. How many negroes voted there at the last general election in November, 1912? — ■ A. I could not give that; somewhere from five to seven negroes voted there; I don't think as many as voted in the primary on the 6th of August. Q. Did you apply to them the test known as the grandfather test? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial as to the Oklahoma Township, no allegations being made in the contestant's notice of contest regarding the conduct of the said election. Q. Answer the question. — A. I presented them with the Constitution; also that they could read and write. Q. Did you receive previous to the last general election — he is going to answer " No, " so you need not make any objection to it — similar circulars to the ones I handed you, marked A and B, respectively? — A. I didn't get one of those, Mr. Giddings; I don't think I ever saw it until I saw it here in your office. Q. Did you know at the time you acted as inspector of Oklahoma A precinct at the last election, of the conviction of Beall and Guinn in Enid for enforcement of the grandfather law? Mr. Morgan. We object to that as incompetent, irreleA^ant, and immaterial. A. No, sir; I don't remember of it. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 75 Q. Do you remember about Beall and Guinn, election officials in Kingfisher County, who have been convicted? — A. No, sir. Q. In the Federal court for enforcement of this law? — A. No, sir. Q. Never heard of that — do you know anything about any threats having been made about the enforcement of that law? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, A. I may have. Well— — Q. Unless you know. — A. Not that I know. I may have seen something in the papers. Now, on cross-examination, at the top of page 56 there was this testimony : Q. These negroes who did vote were tested, were they not? — A. Yes, sir. Q. By having them read or write the Constitution? — A. Yes, sir. Mr. Morgan. That is all. Is there any question, can there be any question about Oklahoma A precinct? There can not be. Now, I want to cite you the testimony of Mr. Frank Redding, of Crutcho Township. In his direct examination on page 57 he gave the following testimony: Q. Do you know how many negroes voted in Crutcho Township at the last elec- tion?- — A. No; I don't know the exact number. Q. Do you know about how many? — A. Well, there must have been something like eighteen or twenty, I suppose. Q. Do you know generally what their politics was? Mr. Morgan. Objected to as incompetent, irrelevant, and immaterial, and. not being shown that the parties in question had refused to testify regarding their politics, or that they voted for the contestee herein. A. I didn't have any evidence. I could not say that I know how they voted. I never heard any of them say how they would vote. Q. I asked you what their politics was generally represented to be in that neighbor- hood — Republican, Democratic, Socialist, or what? Mr. Morgan. Same objection as last above stated. A. Generally represented to be Republican. Now, at the bottom of the- same page on cross-examination Mr. Redding gave this testimony: Q. You say there were fifteen or twenty negroes who voted? — A. I think there was possibly something like that. I would not make a positive statement, because I didn't count them at the time. Mr. Giddings. I object to that question as a misstatement. He said eighteen or twenty. Q. Eighteen — I got it down as fifteen. These fifteen or eighteen negroes were tested under the terms as to what is known as the grandfather clause, were they? — A. Well, part of them were — that I had seen tested at the primary and knew by doing business with them — knew they were capable of reading and writing — were not tested. Q. Speak louder, please.- — A. The one I didn't know, I did, and the others that I have known for a number of years and had business with them and knew they could read and write, I voted them without the tests. Q. You didn't test them and let them vote without test, because you knew they could read and write? — A. Yes, sir. Q. No negroes voted there who were not able to read and write a section of the constitution? — A. I don't think so. That would seem to be enough for Crutcho Township, but I want to quote to you one question of the next witness, Mr. E. A. Wagner, also of Crutcho Township. This is on page 58: Q. These negroes who did vote were all tested under the terms of the grandfather law by the inspector? — -A. Yes, sir. The next witness was Mr. C. B. Jack, who resided in Hartdell Township, and his testimony is set out on page 59. In his cross- examination this appears. 76 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Q. Do you know whether or not these negroes who voted were qualified under the grandfather clause — that is, were they tested by the inspector, if you know? — A . Those that voted? Q. Yes. — A. Every one of them was qualified, so far as we understood, under the grandfather clause. That is the testimony as to Hartdell Township. Now, the next witness was Mr. E. A. Ringold, which begins — whose testimony, begins on page 59. Mr. Ringold testified that he was secretary of the Oklahoma County Election Board, but he does not testify as to the precincts. Now, turning to page 62, we have the testimony of Mr. J. W. Sorrells. He was an inspector in Oklahoma City, not in a country precinct. They did not apply the test because they came there with certificates. Then turning again to page 64 there is testimony of Mr. J. E. Lucas, who is in the same precinct in Oklahoma City. There were just two precincts in Oklahoma City on which there was any evidence introduced, or in which there was any charge of fraud or intimidation for illegal votes — just two in Oklahoma City. Mr. B. B. Moore testified as to Luther Township, his testimony beginning on page 66. That testimony brings out the same fact, that there were 146 there, and only 14 of them were protested. Mr. Rogers. Had not Mr. Moore been called to the stand before? Mr. Morgan. Yes, sir. Mr. Rogers. He testified also on page 46 ? Mr. Morgan. Yes, sir. If you will turn to page 69, you will find the testimony of Mr. William H. Seiler, of Spring Creek precinct. There is no charge of any illegal voting there, and nothing shown. It don't show that any negro voter voted there. The evidence is introduced to show he received one of the circulars. On page 70 there is further testimony of Mr. Ringold, introduced not for the purpose of showing the condition of the votes in any pre- cinct, but simply to show what votes I received in certain precincts and what votes Mr. Carney received, and for the purpose of introduc- ing certain stubs of these votes. His testimony does not relate in any way to illegal voters in any specific cases. Now, turning to page 74 we have the testimony of Mr. W. W. Barker, of Springer Township, Jones City. In his direct examination, on page 75, there is this testimony: Q. Do you know what effect that had in the enforcement of — strike that — do you know what effect those circulars had in the enforcement of what was commonly called the grandfather clause; that is to say, what effect it had on the election officers of that precinct? Mr. Morgan. Objected to, as incompetent, irrelevant, and immaterial, and calling for the conclusion of the witness. A. Yes, sir. Q. What? Mr. Morgan. Objected to, as incompetent, irrelevant, and immaterial, and calling for the conclusion and opinion of the witness. A. We permitted them all to vote. That sounds a little dangerous. This testimony continued: Q. Why were you afraid to enforce the grandfather clause down there? Mr. Morgan. We object to that as incompetent, irrelevant, and immaterial, and assuming a state of facts not proven. A. Well, most of all of them were familiar with the condition out here, of the con- viction of two or three fellows on the election board at Enid. I think they all had the same fear of the same thing. CONTESTED ELECTION CASE OF CARNEY VS. MOEGAN. 77 It was the conviction of these men and not the circular that was in their minds. Now, take the cross-examination of Mr. Barker as set out at the bottom of page 76: Q. Who was it tested the negroes, Mr. Lowp, or yourself? — A. Mr. Lowp would test them when they asked for a ticket. Q. What sort of test would he apply to these negroes who presented themselves? — A. He would ask them if they could read and write. Q. If they would say they could, would he pass them? — A. No; he generally put them under test. Q. Put all of them under test? — A. And then he would pass them out Q. You say all the negroes who voted there were tested by Mr. Lowp according to the best of your knowledge? — A. Yes; I think they was. Q. Did you turn any of them down? — A. No. Q. But he did test them all? — A. Yes, sir. Q. And had them write some part of the constitution of the State of Oklahoma? — A. No; I think he had them to read, mostly. There could not be any question about Springer Township. Now, I want to call your attention to some of the testimony of Mr. F. H. Morris, of Deep Fork Township, which begins on page 78. I want to call your attention to the testimony he gave upon cross- examination, as set out on page 79. Mr. Rogers. On page 76 there is a question and answer beyond that which you last read, to which I want to call your attention: Q. Now, do you know of any negro who was allowed to vote who can not read and write? — A. Oh, sure. That seems to be in conflict with the earlier testimony ? Mr. Morgan. And the next question is Mr. Rogers (interposing). I suppose the effect left by that last pair of questions and answers is that Mr. Lowp's testing was inade- quate or unfair; either one of the two. Was Mr. Lowp a Democrat or Republican ? Mr. Morgan. He was a Democrat. Mr. Rogers. Was he the inspector ? Mr. Morgan. I think he was the inspector. Mr. Giddings. The testimony of Mr. Barker at the top of page 75 shows that Mr. Lowp at the time this testimony was taken was sick in bed. Mr. Rogers. He was sick in bed at the time the testimony was taken, but he was an inspector. Mr. Morgan. Yes, sir. Mr. Rogers. You would say then, that even though Mr. Lowp's examination was inadequate, nevertheless his decision as a result of that examination was conclusive, under the law. Is that the fact ? Mr. Morgan. Unquestionably. In the cross-examination of Mr. Morris, as set out just below the middle of page 79, there is this: Q. And if they said they could read and write you gave them the ballot, did you? — A. Yes, sir. Q. And neither Mr. Burnsworth or yourself applied any further test to them? — A. No, sir. Q. Now, were there any negroes who were tested that day by Mr. Burnsworth or by yourself? — A. Yes, sir; I think we put the test to about two or three, beginning in the morning. Q. Did they pass the test all right? — A. No, sir; we turned them down— until late in the afternoon. Q. Until late in the afternoon, then you let them vote? — A. Yes; they got boisterous and we thought we would pass them in. 78 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. Q. Who got boisterous? — A. The negroes and the white people together. We had a little trouble. Q. What were the names of these two or three you tested and turned down. — A. I don't remember; yes, I can give you one of them. Maybe I can give you two. Fred Trent and Anderson Harrison; and I don't know whether there was another one or not, but I think — I don't remember his name. Q. Those were the only two that were tested that day? — A. We quit applying the test from that time on. Now, then, the next witness is Mr. C. E. Burnsworth, of Deep Fork Township, and his testimony begins on page 80. Now, in the direct examination of Mr. Burnsworth as set out on page 81 there is this testimony: Q. Did you compel any of those negroes to read and write a section of the Constitu- tion? — 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 didn't know about did you test them by making them read a section of the Constitution and write it? — A. Well, no. In Mr. Burnsworth's cross examination, at the bottom of page 81 Mr. Rogers (interposing). Who was Mr. Morris? Mr. Morgan. He was clerk of the election board. Mr. Broussard. How does it come about that you test in a pri- mary — that these negroes, being Republicans were tested by a Demo- cratic inspector ? Mr. Morgan. When the State primary is held, under our law, it is just the same as the regular election; that is, the same election board passes on both, and conducts both. Mr. Broussard. Do they hold the primaries on the same day for all parties ? Mr. Morgan. All parties. Mr. Broussard. Vote in the same booth ? Mr. Morgan. Vote in same booths and have distinct and separate tickets. Mr. Broussard. But they vote for their own candidates — the Re- publicans, the Democrats, and Socialists ? Mr. Morgan. The voter calls for the tickets of his party, and he votes his own ticket. Mr. Broussard. I could not understand how a Democratic inspec- tor happened to pass on the qualifications of a Republican elector. Mr. Oglesby. That seems to be the modern theory. Mr. Morgan. On cross-examination this same witness, Mr. Bums- worth, at the bottom of page 81, testified as follows: Q. Now, you say, Mr. Burnsworth, you didn't compel all the negroes to read and write the constitution at the last general election as a test? — A. No, sir. Q. Because of the fact you had tested most of them at the primary and knew whether or not they could read and write? — A. Yes, sir. Q. That is right. How many of this seventy that you say voted had been tested by you in the primary? — A. I could not say exactly. Q. About how many? — A. Well, I put all — most all — of them to the test at the primary. Q. And those that you had tested at the primary you didn't require the test of them at the general election in November, 1912? — A. Nothing; only I would just ask them the question, from the simple fact I remembered whether or not the test at the primary. Q. Now, then, about how many negroes did you test at the general election? — A. I think it was five. Q. What was the result of that test? — A. They could not read and write, and I refused them a ballot. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 79 Then you tell me the election was not enforced ? Then Mr. Burns- worth gave this further testimony on page 82 : Q. Now, who did this testing out there, Mr. Burnsworth? — A. I did it myself, most of it. Q. So you tested five? — A. I think it was five. Q. And turned those down? — A. Yes, sir. Q. And the balance of the negroes who voted, you knew them, and had tested them at the primary election? — A. Yes, sir. Q. And let them vote? That is all. Mr. Giddings. That is all. Mr. Morgan. Mr. Burnsworth, you are a Democrat, are you not? A. Yes, sir. Mr. Morgan. That is all. Mr. Gidbings. That is all. Mr. Bowdle. Did this terrorizing circular go out before or after the election ? Mi". Morgan. I do not know when it went out. So far as this evidence shows, it says it went out before the general election. Mr. Rogers. It was dated October 31, 1912, and the general election was held on November 5, 1912, was it not? Mr. Morgan. I think so. Mr. Rogers. Then it went out about five days before the general election. Mr. Stafford. Does this gentleman, Mr. Fred A. Wagoner, to whom the letter of the Federal district attorney, as shown by Ex- hibit B, was sent, reside in your district? Mr. Morgan. No, sir. Mr. Stafford. He is not a support of either you or the contestant? Mr. Morgan. No, sir; now, in order to complete these outside townships, I would like to have you turn to page 212 of the record, where you will find additional testimony for the contestant. This is the testimony of Mr. Sherman NefT, who testified that he resides in El Reno, in Canadian County. There is only evidence intro- duced in one precinct in Canadian County. In his direct examina- tion, on page 212, he testified as follows: Q. I will ask you, Mr. Neff, if, on that date, before negroes were permitted to vote, if they were tested as to their ability to read and write sections of the constitution, as provided by the laws of Oklahoma? — A. I have given all the negro voters, with a very few exceptions, that test, but not on this date; but the negroes who can't make it, as a rule, are shy of coming to the polls. We turned, I think, two down that day that we didn't think could vote intelligently. That's the best of my recollection. Q. Then, as I understand you, Mr. Neff, the laws of Oklahoma, as they existed at that time, applicable to negro voters, were not enforced in that precinct at the general election of 1912? — A. Well, we think that we enforced the law. Then, on cross examination, as set out on page 213, he gave the following testimony: Q. Do you know of any negro having voted at that election who was not qualified under the law to vote at that time? — A. To the best of my knowledge there was not. Q. To what extent were you informed as to the qualifications of the negroes that were allowed to vote? State fully. — A. Well, I personally did not think it was neces- sary to put the test every time that these fellows wanted to vote, as I was acquainted with them, and had given it to them once prior to that time — to most of them. Q. Do you know how a negro voted that day for Congressman? — A. No, sir; I don't. Now, then, in regard to the city of El Reno, the next witness, Mr. H. D. Fortner, on the same point, in his direct examination, on page 214, said. 80 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Q. Do you recall at this time whether or not, prior to the general election of 1912 r you received from any Federal official any card or instructions or advice against the enforcement of the test required of the negro voters by the laws of Oklahoma? — A. No, sir; I didn't receive any. Q. As I understand it, Mr. Fortner, the negroes that voted in precinct A of the second ward of the city of El Reno, at the general election of 1912, did so without submitting to the test required of negro voters by the laws of the State of Oklahoma? — A. Yes, sir. On cross-examination Mr. Fortner, on page 215, testified as follows: Q. Now, what test was required, as you understand it? — A. To be able to read and write a clause of the constitution of the State of Oklahoma. Q. Do you know that there was a negro voted at that election who could not do this? — A /No, sir. Gentlemen, I think I have read testimony from every single pre- cinct in Oklahoma and Canadian Counties. There were two or three precincts in Blaine County concerning which the contestant put no evidence in, but cross examined our witnesses, but in every precinct in Oklahoma County and in one or two precincts in Canadian County I think I have read what the witnesses said showing that without a single exception that the men were tested or had been registered in July, three months before the so-called circular was alleged to have been circulated, and certainly that circular could not have had the effect to reach back three months. It shows that first they had been tested or registered, that the election officer had such knowledge that they had been tested at the primary, or they had some personal knowledge, with the exception of those 14 votes. I call upon the opposition to point to a single case, a single vote, or one single township where it was not enforced. I have been unable to find it. I do not want to mislead this committee about these facts, but I have searched the record, have gone over all the testimony, and I have taken every one of the townships, and certainly the gentleman will not claim that he can take any advantage of what occurred in other precincts in the district, but must be confined to the precincts in which there is some evidence introduced. Mr. Rogers. How many voting precincts are there in the entire district ? Mr. Morgan. There are 497. Mr. Rogers. As to how many of those precincts was affirmative evidence offered by the contestant that there was fraud ? There are 17 on your list, but 'some of them you said there was no evi- dence offered by the contestant. Mr. Morgan. All those in Blaine County, then in Oklahoma City and in El Reno, and in the Canadian precincts evidence in the case was taken after the time Mr. Rogers (interposing). Of course we don't know, we are not familiar with the names of the counties. Mr. Morgan. The vote in Blaine County, where there are 228 votes involved — I don't need them at all. I would like to have Mr. Michener go into that. (Thereupon, at 12.05 o'clock p. m., the committee adjourned to meet at 10 o'clock a. m., tomorrow/Saturday, May 2, 1914.) contested election case of caeney vs. morgan. 81 Committee on Elections No. 2, House of Representatives, Saturday, May 2, 1914- The committee this clay met, Hon. James A. Hamill (chairman) , presiding. The Chairman. The committee will come to order. A quorum is present and the contestee may proceed. If, during the argument, the quorum is broken for a period, both parties to the contest agree to continue the argument before the remaining members until a sum- cient number of members arrive to consitute a quorum. Mr. Broussard. Before going further with your argument, in the list which you submitted yesterday you went over about 11 or 12 precincts. Now, there are 4 or 5 of them that you did not mention and I would like to know whether these precincts are not in con- troversy in this matter. Mr. Morgan. I think, Mr. Broussard, that I went through every precinct that the contestant had introduced in evidence or where there was any evidence that negroes voted. That is what I aimed to do. I certainly think I went over more than 12 of the precincts. Mr. Broussard. On the list which I have here I find Flynn Town- ship, East Dixon No. 9, Carlton Township, East Lincoln No. 30, Wa- tonga Township and precinct A, second ward. I do not recall that you quoted any testimony with regard to these and I wanted to know whether they were in controversy. Mr. Morgan. I think not in controversy. Mr. Broussard. And I wondered why they were on this list. Mr. Morgan. There are a number of precincts introduced here that are not in controversy on the question of intimidation. Mr. Broussard. I see. That is what I wanted to understand. Mr. Morgan. That was largely a list of those where there was any controversy about enforcing the grandfather clause. Mr. Broussard. I wanted to get that clear in my mind. Mr. Morgan. I turned from page to page; I had each one marked, and I aimed not to omit any. STATEMENT OF HON. DICK T. MORGAN— Continued. Mr. Morgan. Now, Mr. Chairman and gentlemen, for fear that it might be crowded out in my remarks as I go along and take up too much time on other matters, I want first to take up the question of the alleged letter supposed to have been written by Mr. Boardman, and the circular headed, "Talk it over with your wife, Mr. Election Officer," and first make a few remarks on the matter, and then I want to submit to any questions that the chairman or other mem- bers of the committee may wish to put to me concerning that propo- sition. Now, Mr. Chairman, my attorneys gave due notice and took my deposition. The opposition did not appear to cross-examine me in any way. My deposition appears in the record on page 168, con- tinuing over to page 171. I first want to read my sworn testimony and then, of course, I am ready to submit to any questions. On page 169 this question is put: Q. State whether or not you in any way, directly or indirectly, in person or through your friends, supporters, managers, or assistants, or through any political committee 46996—14 6 82 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. or any committeeman, or any other person, made any effort to induce negroes to vote at the November election, or encouraged negroes to vote at the November election, or advised negroes to vote at the said election who were not qualified to vote under the constitution and the laws of the State of Oklahoma? — A. I did not. In the cam- paign previous to the election on the 5th of November, 1912, I did not personally advise a single negro to vote or attempt to vote at said election unless he was qualified to vote under the constitution and the laws of the State of Oklahoma; I did not, directly or indirectly, through any of my friends, supporters, managers, or assistants, or through any political committee or committeeman or any other person whatsoever, make any effort to secure or induce negroes to vote at said election who were not qualified to vote under the constitution and laws of the State, as I understood the law, the responsibility of determining who were qualified electors at said election and who were entitled to vote at said election rested entirely with the election officers, who had been appointed under tne laws of the State, and I made no effort whatever with any election officers or officer to induce them to permit any person to vote who was not qualified under the constitution and laws of the State of Oklahoma. I did not advise any person or persons to encourage, aid, or assist any person in voting or to vote who was not qualified to vote under the State law. In fact, in that campaign I paid no attention whatever to the matter of aiding or assisting or encouraging in any way any person or persons to vote on election day except what I might have said in a general way in public speaking, advising all qualified electors to go to the polls and vote; but in no way, shape, or form did I participate in any effort or in any attempt to have any person, white or black, vote at said election who was not qualified to vote under the State laws . Now, on page 170, this question was put: Q. In the notice of contest served on you by the contestant, John J. Carney, refer- ence is made to an alleged letter that was written by one Homer N. Boardman, United States attorney , together with a certain alleged printed circular, which was entitled "Talk it over with your wife, Mr. Election Official." Please state what knowledge you have, if any, of such alleged letter and circular and state any and all things you know about the printing and circulation of said alleged circular and what, If anything, you had to do with the same. — A. I had no knowledge whatever of said alleged letter purported to have been written by Homer N. Boardman, United States attorney, or the alleged circular, until sometime after the election held on the 5th of November, 1912. All I know about it now is through some reports that I have read in newspapers with reference thereto and from knowledge I have received from the papers in this case. I do not know personally that any such letter was ever written by the said Homer N. Boardman. I did not consult with Boardman about any such letter. He did not write any such letter with my knowledge, counsel, or advice, and if he wrote any such letter it was not written with my approval, advice, or consent. I had no knowledge whatever of the printing of the alleged circular referred to. The same was not printed with my knowledge, consent, or approval, and neither the said alleged letter or the said alleged circular were printed or circulated or published in any manner or form with my consent, knowledge, approval, or connivance. If sucn a letter was written, published, and circulated, or sent through the mails, or in any other way transmitted or delivered to any election officer or to election officers in my district, the said printing, circulation, and transmission through the mails was entirely and absolutely without my knowledge, consent, or approval. Such letter and cir- cular I am sure was not printed or circulated by the committee that had my campaign in charge, and so far as I have been able to ascertain no person connected in any way with the management, control, and direction of my campaign had anything whatever to do with the printing, the circulation, and distribution of anj such letter or circular. Now, Mr. Barritt Galloway was the secretary of the congressional committee of the second district and he testified on page 171. On page 172 this question was put to him: Q. I will ask you if you have read the allegation in the notice of the contest that was served in this case by John J. Carney upon Dick T. Morgan and that portion of said notice in which it is alleged that a certain letter was written by Homer N. Board- man, United States attorney, and that a certain alleged circular was printed which was entitled, "Talk it over with your wife, Mr. Election Official," and a charge that said alleged letter and said alleged circular was sent to the election officers of the said congressional district with the view and purpose of intimidating said election officers and thus preventing them from enforcing what is known as the "grandfather clause" of the State constitution as against negro voters? — A. I have read the same. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 83 Q. You may state whether or not said alleged letter or any similar letter was printed or circulated or mailed by the Republican congressional committee of the second dis- trict of Oklahcma at any time during said campaign prior to November 6, 19i2. And in a previous question he testified that he had charge of the distribution of literature. A. No such letter was printed, circulated, or mailed from the headquarters under my direction or with my consent or knowledge. Q. Do you know whether or not such letter was printed, circulated, or mailed by said committee from said headquarters? — A. I know that no such letter was printed there or circulated from said headquarters. Q. I will ask you to state if the alleged circular entitled "Talk it over with your wife, Mr. Election Officer," was printed, mailed, or distributed by the Republican congressional committee from said headquarters? — A. No such circular was printed, circulated, or mailed from the headquarters of the Republican congressional committee of the second district. Q. State whether or not the Republican congressional committee had anything to do whatever, either with the writing, printing, circulation, or mailing of either the said alleged letter referred to or said alleged circular? — A. The committee had nothing to do whatever with said letter or circular, to my knowledge. Now Mr. Porter H. Morgan, who is my son, testifies on page 177. He testifies that he was acting campaign manager and acting chair- man of the congressional committee by reason of the fact that the chairman was called away from the office for about six or seven weeks of the campaign, practically all the campaign, and that he was compelled to take charge, and he testifies that he had charge, On page 178 he testifies: Q. Are you acquainted with Homer N. Boardman, United States district attorney for the western district of Oklahoma? — A. Yes, sir. Q. Did you talk with Mr. Boardman prior to the 5th day of November, 1912, or on said day, relative to any letter of the sort shown in Exhibit B of contestant 's notice of contest? — A. I did not. Mr. Boardman was in Lawton in Federal court most of the time during the three weeks preceding the 5th day of November, 1912, and I did not talk with him prior to the day of the election relative to this letter or any other letter of that sort. Q. Did you or any other members of the committee have anything to do with the printing or circulation of this or any other letters or circulars similar in character to Exhibit B, contestant's notice of contest? — A. No, sir. Q. Was the letter, as shown in contestant's Exhibit B to his notice of contest, written with your consent, your knowledge or with your approbation, or did you enter into any conspiracy with any one to write, have printed and circulated any such letter? — A. No, sir. Q. Did you know before the 5th day of November that the letter, a copy of which is attached to contestant's notice of contest and marked ' 'Exhibit B, " was being cir- culated among or sent to the precinct election officers or circulated among them? — A. No, sir; I did not. Q. Handing you a carbon copy of the contestant's notice of contest, I will ask you to examine Exhibit C thereof, and will ask you if you did, prior to the 5th day of November, 1912, see the original or any copy of said circular? — A. No,_sir. Q. Did you see, prior to the 5th day of November, 1912, or on said day, copies thereof which were printed and which have heretofore been introduced in evidence by the contestant? — A. No, sir. Q. Did you at any time prior to or on the 5th day of November, 1912, see any copies of Exhibit C, which is attached to contestant's notice of contest? — A. I saw no copy of or original of the circular as shown as Exhibit C until a day or two are the election on the 5th day of November, 1912. Q. Did you talk with Mr. Homer N. Boardman prior to the 5th day of November, 1912, or on said day relative to a circular of the sort shown as Exhibit of the con- testant's notice of contest? — A. I did not. Q. Did you or any other member or members of the congressional committee have anything to do with the printing or circulation of this or of any other circular similar in character to this Exhibit C? — A. No, sir, Q. Was this circular as shown as contestant's Exhibit C to his notice of contest written or composed with your consent, knowledge, or approbation, or did you enter 84 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. into any plan or conspiracy with any one to write, compose, have printed, or circulated any such circular ? — A. I did not. Q. Did you know before the 5th day of November, 1912, or on said date, that such a circular had been composed, written, printed, or circulated among or sent to the precinct election officers in the second congressional district of the State of Okla- homa? — A. No, sir. Q. Are you one of the attorneys for the contestee, Dick T. Morgan, in this cause? — A. Yes; the firm of Morgan & Deupree, of which I am a member, are attorneys for the contestee Dick T. Morgan. Now, contestant was given clue notice and did not appear to cross- examine either myself, my acting chairman, or the secretary of the committee. I tried in that testimony to make it so broad and com- prehensive, thorough, and far-reaching to cover every possible way that I might have any connection with that circular. Mr. Boardman, as is well known, lives in Oklahoma City, and was not asked to be brought forward to testify by the contestant. I will state that my election certificate was issued on the 22d day of November, and from the election up until the 22d day of November, under the circum- stances that existed, you might know that I had plenty to look after until I got my certificate, especially if you know just the conditions that existed there. Mr. Bowdle. In the three active working days that elapsed between, let us say, the receipt of that letter and the election, did you hear in any way any talk about such a letter having been received by anybody ? Mr. Morgan. Not a word. Mr. Bowdle. I ask that because I had thought to ask you earlier whether you had taken any attitude at the time in regard to it, but I see that is sufficiently answered by the fact that you had very little time. Mr. Morgan. Well, Mr. Bowdle, I will right here cease, and say what I was going to say a little further along the line, and that is that I want the committee to be absolutely free to put to me, without any embarrassment on your part, any question that you may have to put concerning that alleged letter or that alleged circular. Mr. Bowdle. Do you not think it extremely curious, not to say significant, that this letter should go out at this critical time ? I say critical time because it afforded nobody any opportunity to counter it in any way. I say, did you not regard that as an exceedingly significant and curious thing ? Mr. Morgan. Now or since it was issued ? Mr. Bowdle. Well, when you first heard about it. Mr. Morgan. Well, I suppose whoever did it put it out at the latter part of the election possibly with that in view. I do not know that I ever thought about that particular line. Mr. Bowdle. The only reason I speak of it is that it is such an extraordinary thing for people to rise up spontaneously in campaigns and rush into print for candidates unless those who do rise up have some motive. Mr. Morgan. I have no doubt that whoever circulated it was trying to help or injure somebody in the election. The Chairman. You have no doubt now as to the character of that letter ? Mr. Morgan. In what way ? CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 85 The Chairman. You say you had no connection with it in any way. Was there any mention of it made in the newspapers ? Mr. Morgan. Before election ? The Chairman. Yes. Mr. Morgan. Not that I saw. Mr. Giddings. It was in the newspapers all over the district. The Chairman. I do not think the committee has any doubt that it was a most unjust thing and most contemptible thing, whoever sent it out. It was sent out to a class of men who do not have the opportunity to study the law and who reverence the law. It was sent out with the threat that if they did not do what the district attorney said was in compliance with the law that they would go to the penitentiary. Speaking for myself, and I think I reflect the views of the committee, it was a most despicable thing, the sending out of that letter in the campaign. However, that is not connected with you; you say you knew nothing about it. Mr. Morgan. No. If there are any other questions, I hope you will feel free to ask me about it. Mr. Oglesby. Did Mr. Wagoner have any connection with the Republican campaign committee in that district ? Mr. Morgan. Not in my district. Mr. Wagoner lives in Chandler. Mr. Oglesby. He does not live in your district ? Mr. Morgan. No; and had no connection whatever, in the slightest degree, with my campaign. Mr. Giddings. Mr. Wagoner is attorney of record in one of the other contests. Mr. Morgan. For fear there might be some misunderstanding about the remark made about his connection with another contest, I want to say that Mr. Wagoner had no connection with my contest. Mr. McGuire. Since my case has been mentioned I would like to make this statement: Mr. Wagoner lives probably 75 miles from me and I know him very well. After this case was begun, leading counsel for Mr. Davi^, a gentlemen of integrity, was a ked who would be a good lawyer in that town for me to get to take the evidence down there. Now, I speak of that at this time so that if any member of the committee wants to make any inquiry of leading counsel for Mr. Davi-, as to whether he recommended Mr. Wagoner, he may do so. Mr. Giddings. You know that Mr. Wagoner knew about this letter? Mr. McGuire. Absolutely not. The Chairman. Mr. Morgan, you have the floor. Mr. McGuire. I beg your pardon for the interruption. Mr. Morgan. My time is somewhat limited; I feel that way about it and I do not want this thing prolonged. The Chairman. Unless these admissions are by consent they are outside of the record. You know we can not con-ider anything except what is in the record, unless it is admitted by both parties at the hearing. Mr. Oglesby. Mr. Morgan, I would like to know whether you have taken any steps to ascertain who is responsible for this anonymous circular or letter Mr. Boardman sent out, and if so what you have found out. Mr. Morgan. The election occurred, of course, on the 5th of No- vember and my certificate was issued on the 22d. There was some 86 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN, controversy going on all the time between the election and the time of the issuance of the certificate about who was elected, and all that, both sides claiming it. So that I was putting in every minute and hour. I had to try to protect what I thought were my rights After securing my certificate I left immediately for Washington. Of course, Congress was to meet in December and, as you know, we stayed here until the next December. I was not home, if I remember correctly, until October of last year for two or three weeks. Well, I did not do much. I did not see or talk to Mr. Boardman. I do not think I saw him in all that time until I went home. My attorneys, of course, tried my case down there. I was not down there at all during the trial of the case, possibly. Now, there were two days that I visited the State legislature. Several boys went down there when they had up the redisricting bill; I went down there two days. But I had no time to give to any matter except with the legislature, to meet some of the members of the legislature. My attorneys, of course, tried the case. They did not introduce any testimony, so far as rebuttal was concerned of anything that the contestant had presented in making his case, because they thought that the contest- ant's own evidence absolutely made a clear case for us. The Chairman. Do you know now ? Mr. Morgan. Yes, sir. This summer, or sometime this fall, I talked with Mr. Boardman about this matter. Mr. Boardman told me that he was at Lawton as United States attorney during several weeks previous to the election, which is probably 100 miles or more from Oklahoma City or Guthrie; that he was very busy, because only a few months before he had been appointed United States attorney; that he was a new man, had much to learn and was anxious to acquit himself well; that he was called up over the phone by the assistants in his office saying that a letter had been received from Mr. Wagoner asking these questions; that they had prepared or would prepare the letter which they read to him over the phone and asked his approval of the letter. I suppose they had that custom. He heard it read over the phone, approved it and authorized them to sign his name to it. He said that he had no connection with the circular and had no idea that this was to be used in the campaign. The Chairman. That is what I meant particularly. Do you know who sent out the circular ? Mr. Morgan. Absolutely I have not been able in any way to find out who sent out the circular. I do not know any more than you gentlemen know. Mr. Oglesby. Mr. Boardman disclaimed having given it out? Mr. Morgan. Mr. Boardman, of course, disclaimed having given it out; not only, that he did not give it out but that he had no con- nection with this circular and had no idea that it would be used in the way it was. Now, are there any other questions along that line? Mr. Oglesby. Do you hold Mr. Wagoner somewhat responsible in your own mind ? Mr. Morgan. I would not want to convict anybody. Mr. Oglesby. That is the reason why I wanted to ask my question off the record ; I would like to find out. I do not know of how much importance it is. Mr. Giddings. May I ask him a question? Do you not know that orders for Mr. Boardman to take this course came from the Attorney CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 87 General, Mr. Wickersham ? That the law was unconstitutional and that that originally came from Washington ? Mr. Morgan. To write this letter? Mr. Giddings. To take up the proposition of the Federal prose- cution of these men if the} 7 enforced what was held to be an uncon- stitutional law ? Mr. Morgan. No, sir; I have heard no such thing. Mr. Oglesby. I do not think the enforcement of that law has anything to do with this; it is purely the question of the circulation of that anonymous circular in connection with this letter. Mr. Morgan. I want to say this, and then you can ask further questions. Mr. Boardman" was my campaign manager in 1910; we called him the chairman of the congressional committee. He was elected to that position by members of the committee in 1910. He served in that position efficiently, and subsequently was an applicant for United States attorney. I indorsed him for that position, there being quite a good many Republicans who waited the place, and after a long fight President Taft appointed him. Now, Mr. Chairman, Mi\ Boardman absolutely had no connection with my campaign in 1912. I do not think I saw Mr. Boardman or spoke to him for two months previous to the election. We have a large district. I put in eight weeks and more, going every day, making from two to five speeches a day, just barely running into my headquarters and out again. It was a strenuous campaign. Mr. Boardman had been .appointed United States attorney; he had his hands full to fulfill the duties of his office. Mr. Boardman was a man of the very highest character and discretion, for that matter; he is not an extreme partisan in any sense or anything of that kind; a man who would do his duty as he saw it regardless of how it might affect him. It is not possible that Mr. Boardman, when he authorized the sending of that letter, had the least idea or concep- tion that it was going to be used as a campaign document, and much less did he think that such a circular as this was to be attached to it and sent out there to be used as it was. Mr. Bowdle. Do you think he had any adequate ground for such a thought as you now announce when we consider that within so short a time before the election he issued a letter couched in such fervid and vigorous language ? Mr. Morgan. Well, you call it fervid and vigorous language. Of course, there is the letter; it is for you gentlemen to decide whether that is a fair letter or how unfair it was. It is not for me. Mr. Bowdle. Allow me to say right there that had that letter been written a month or two months before the election the language would hardly have been of any significance; it would have been purely judicial language, such as an opinion should be couched in, but coming so short a time before the election does it not strike you that that language is just a little bit fervid ? Mr. Morgan. Well, it probably was, but there is this view of it: Here is a State law; here is the decision of the Supreme Court of the State on that law holding it constitutional; here is the United States law; here is the decision of the United States court, and so far as I am concerned I gave to the Democratic supreme court of the State credit for the same good faith in construing the question according to their honest belief as I do to the United States judges. Three men, or two men, have been tried and, as far as I know, tried honestly; they have 88 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. been convicted and sentenced to three years in the penitentiary. Now, there is a conflict and is it surprising that there should be a con- flict of views ? The man who was to reap a benefit from the strict enforcement of that State law naturally would be partisan on that side; on the other hand the man who would reap a benefit in the elec- tion from its nor enforcement would very naturally, from his view- point, have the same partisan view that the other side would, and he would do things that the other side would not approve and the other side would do things he would not approve. Mr. Chairman, you heard the decision I read about how the grand- father clause was enforced in at least one county in the election before. That was no doubt an extreme case, but when such a thing as that took place it was natural for those on the other side to feel that the same thing might be perpetrated. But I do not know what prompted these men. So far as I am concerned I do not approve the sending out of that circular. I do not approve that kind of politics. Every man in politics has his way and his ideas of how to run a campaign and how to win, but the use of such methods as that would not appeal to me at all. I am ready to have my record and my method of con- ducting campaigns absolutely investigated from beginning to end, and it is generally well known, I think, that I would not resort to that kind of a method. Mr. Oglesby. I am glad to hear you say you do not approve of that circular. I got the impression yesterday from something you said that you thought perhaps there was something that called for its issuance, and I am glad to have that impression changed. Mr. Morgan. No. Some men think that the way to win an election is to go out with some unusual thing or use some underhand methods, but I do not approve of those things; they do not appeal to me. I have never used them and I never will use them. If I can stay in public life as long as I am inclined to be a candidate, by using the right kind of methods, all right. Mr. Oglesby. Do you not think this circular goes a good deal farther than what might ordinarily be termed sharp practices or sharp methods of political trickery ? Mr. Morgan. Well, to my mind I think it does, yes, and I can not think of any worse term than that. Now, Mr. Chairman, I want to spend some time on what you might call the cross petition of the contestee. I would like you to look at the record on page 106, where our testimony begins. The evidence clearly shows that in Blaine County the county election board met on the evening of the 5th of November and proceeded to take up the canvassing and counting of the votes. Mr. Oglesby. Do you think we are competent to pass on the question as to whether or not you are entitled to have certain votes added? Mr. Morgan. Unquestionably so, yes, the same as a court would. You could not have contested elections if you did not do that. Sup- pose they had thrown out a thousand votes or 1,500 votes, enough to give Mr. Carney a certificate ? Mr. Oglesby. But you got the certificate. Mr. Morgan. Yes, sir; I do not claim that I need these votes, but I want the committee to take into consideration the fact that certain votes were thrown out. I do not claim that it is necessary to add CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 89 these votes to my vote to elect me or to hold the certificate, but I want the committee to get in their minds the fact that I was really, on the face of the returns, elected by 891 instead of 663, as the returns of the State election board show. Mr. Oglesby. That is, you would like a committee finding to that effect ? Mr. Morgan. I will be satisfied if the committee holds that I retain my seat. Mr. Oglesby. Well, that is what I say. I was trying to find out whether you insisted that the committee should make any such findings. Mr. Morgan. I do not mean a written finding in your report. 1 do not know how you make that up, but my understanding is that it goes one way or the other, that in making their recommendation they recommend one way or the other. Mr. Oglesby. From any aspect of the case, how would these additional 228 votes make any difference in your election ? Mr. Morgan. I do not think it would make any difference. Mr. Oglesby. Then that is the point. Mr. Morgan. Because I am elected without those votes. But I can not tell just exactly what is in the mind of every member of the committee. I suppose the committee will go over these votes, and if certain votes were illegal they would throw them out and not count them, just as a court would. Hence I want my majority to appear before the committee just what it is and what it was, and that 1 consider it took a crime to take those 228 votes away. I want the committee to know that I got 891 votes just as honestly as any member of this committee got the votes that were certified to them. It was not only a wrongful act, but I will show you that it was an act that was contrary to a statute of the State. Mr. Oglesby. It only occurred to me that no matter how you figured, those votes would not make any difference either way. Mr. Morgan. It would not affect the election. Mr. Oglesby. And if you had any such idea we might save some time. Mr. Morgan. It would not affect the election; I was elected with- out those, as the State board determined. Mr. Oglesby. And if the contention of the other side is correct, you will be defeated, even if you got those ? Mr. Morgan. No, sir; I do not know what contention they make. Mr. Oglesby. What I had in mind was this Mr. Morgan. What do you mean by their contention ? Mr. Oglesby. These votes would not make any difference if their contention is sustained. Mr. Morgan. What is their contention? I do not know what their contention is. Has the gentleman said how many illegal votes were cast, specified to the committee just how many and pointed them out ? Mr. Oglesby. I had intended to ask Mr. Giddings to make a state- ment as to what his contention was. Mr. Morgan. I can not conceive what their contention is. Mr. Oglesby. I understand his contention to be that your election is illegal because of the fact that this circular was sent out which intimated the voters and that, therefore, whether you had anything 90 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. to do with it or not, you are not entitled to the benefit of the votes that were cast for you which should not have been cast and, there- fore, it would hinge upon the legal interpretation of the benefit Mr. Morgan (interposing). Yes; but would it not hinge on how many illegal votes were cast ? Mr. Oglesby. I say, it hinges on the legal interpretation of what benefit means; could you be said, in legal terms, to have had the benefit of ttese votes if you did not get enough to elect you or to change the result. Mr. Rogers. And then Mr. Giddings makes the further point that not being able to determine accurately which votes were tainted the whole thing is inextricably mixed up and, therefore, it is to be regarded that the election was void. That is his position. Mr. Morgan. Well, I do not think, as I said before, that these votes affect my election or that my election depends on whether these votes are counted for me, but I want to say that they were not counted. In order to show the real vote in Blaine County the contes- tee introduced the tabulation that was made in the county by the county election board of Blaine County on the 5th and 6th of Novem- ber. You will find that on page 161 of the record there is a tabula- tion that was made by the county election board showing the vote that each person received, Federal, State, and county. It is Exhibit A on page 181. It runs over to page 182 and says, "For Represen- tative in Congress, second district, J. J. Carney, 1,171; Dick T. Morgan, 1,351," giving Morgan 180 majority in the county. Now, then, if you will turn to page 186 you will find a certificate by the- secretary of the State election board as to the vote that was certi- fied to the State election board, which leaves out 11 precints. In other words, the State election board's report, which they got from the county election board, is just like theirs only these 11 precincts are not included. On page 185 you will find, for Representative in Congress, second district, Carney, 814, and Morgan, 772, giving Car- ney a majority of 42 votes, whereas according to the first tabulation, counting all the votes, I had a majority of 180, but according to the second tabulation, as certified to the State election board, Mr. Carney had a majority of 42. Mr. Brotjssard. Were these precincts rejected as a whole or cer- tain votes cast out ? Mr. Morgan. If you will notice they are precinct No. 6, Cedar Valley; precinct No. 9, East Dixon; precinct No. 10, West Lincoln; precinct No. 12, Logan; precinct No. 13, Flynn; precinct No. 20, Watonga township; precinct No. 23, Canton; precinct No. 28, West Dixon; precinct No. 29, Carlton; precinct No. 30, East Lincoln, and precinct No. 8, Arapahoe. Mr. Broussard. Those were the precincts about which I asked some questions ? Mr. Morgan. Yes. Mr. Rogers. They are represented there by blank lines. Mr. Morgan. In the first tabulation that was made those pre- cincts were included and the returns gave me a majority of 180. Now then, my attorneys, in order to make it stronger and prove the same f cts by another method, subpoenaed the officers of every one of these precinct election boards, brought them into court, and required CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. 91 them to testify as to the returns. I have prepared a table of the returns as shown by the testimony of the election officers. That class of testimony begins on page 109. The first witness introduced was Mr. Taylor, clerk of the district court — whose testimony begins on page 107 — and he first identified, on page 108, the actual returns, the papers themselves, made in each one of those 11 precincts. There they are, all actually identified and marked as exhibits. Now then, on page 109, the precinct officer of Flynn township was intro- duced, and he identified those returns as the ones that were sent in, and those returns are printed as Exhibit 10 on page 111. That kind of testimony extends from page 111 over to page 147, precinct by precinct. Now, in this table 8, which I have handed to you, I have made a tabulation of votes in the 11 precincts which were thrown out by the Blaine County election board, showing a loss to Morgan of 228 votes. I have shown in this table the page in the record containing the returns as made. Flynn Township, on page 112, East Dixon, page 115, West Dixon, page 119, Arapahoe, page 121, Canton, page 124, Carlton, page 128, East Lincoln, page 132, Cedar Valley, page 135, Logan, page 138, Lincoln, page 141, and Watonga, page 146. That tabulation shows that according to the returns of the precinct election officers of those precincts Mr. Carney received 351 votes and that Morgan received 579 votes, giving Morgan a majority in those 11 precincts of 228 votes, so that Morgan, by throwing out these 11 precincts, lost 228 votes, and if these 228 votes be added to the 663 votes, as admitted by the contestant in his contest notice as my plurality according to the State election board, my plurality in the district would be 891 votes. Table No. 8. — Tabulation of votes in the 11 precincts which were thrown out by the Blaine County election board, showing a loss to Morgan of 228 votes. Township. Precinct No. Page. Carney. Morgan. Flynn 13 9 28 8 23 29 30 6 12 10 20 112 115 119 121 124 128 132 135 138 141 146 13 33 25 27 55 13 10 30 52 45 48 22 39 39 47 104 51 30 Cedar Valley 39 80 39 89 351 579 Total vote for Morgan in 11 precincts 579 Total vote for Carney in 11 precincts 351 Morgan's majority in 11 precincts 228 Net loss to Morgan, 228. Two hundred and twenty-eight votes added to 663 votes conceded to have been Morgan's plurality on the face of the returns to the State election board makes Morgan's plurality in the district 891. Mr. Taylor. Perhaps you have stated it, but I was not present. Why were these votes thrown out ? Mr. Morgan. That is just the point I am coming to. I want the committee to see that we had clear, absolute, and unquestionable proof that those 11 precincts were thrown out. Now the question is 92 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. why they were thrown out. I have here volume 38 of the Supreme Court Reports of the State of Oklahoma, and on page 652 Mr. Taylor (interposing) . I want to ask whether the record any- where shows why they were thrown out ? Mr. Morgan. Yes, sir; the record shows. Mr. Broady was the Republican member of that county election board. He was put on the witness stand and he testified — well, you asked me why they were thrown out. Mr. Taylor. Whether the record shows, and then you can show in your own way. Mr. Morgan. Mr. Broady testified that the county election board met and was in session two days; that they counted the votes, made a tabulation, and that the secretary of the county election board signed those returns and the county election board adjourned and he supposed the thing was complete. The testimony shows that after the board adjourned they went to Oklahoma City — that is, the Democratic chairman of the board and the Democratic secretary, Mr. Hogan and Mr. Mosley. The record shows that he conferred there with Mr. Gould, who was Mr. Carney's manager in this cam- paign. The record shows that he said he went there and consulted with Mr. Gould, who was Mr. Carney's campaign manager, or one of them. The time when they did the work is not known, but on the 13th, 14th, or 15th of November, Mr. Hogan, the Democratic chair- man, and Mr. Mosley, the Democratic secretary of that county elec- tion board, met somewhere — nobody knows where they met — and set aside the finding they had made before ; they made a record that after throwing out 1 1 precincts Morgan received so much and Carney received so much, and that they did this work without the knowledge, without the consent, and without notice to the other member of the board, and that they told the Republican member that the reason they did not notify him was that they wanted to head him off so that the Republicans could not get a mandate, writ, or something to pre- vent them from doing it. Mr. Taylor. They were pretty frank about that ? Mr. Morgan. Yes. Now, then, I have this case which I am going to read to you from the supreme court. But I have here the Watonga Republican, which is a Republican paper, as I understand it. Mr. Taylor. Do you know whether they were thrown out as to other candidates besides those for Congress ? Mr. Morgan. Oh, yes; it elected four Democratic county officials, three or four at least in the county. Mr. Giddings. And the Federal court, before which these men were tried, found that these election officials had not committed any offense. Mr. Morgan. If it did that would be the only case where a Federal court was fair in the estimation of Mr. Giddings. But I will say this, that I understand these two men were indicted in the Federal court. Mr. Giddings. By Mr. Boardman, the United States attorney? Mr. Morgan. Yes; he was the United States attorney. I under- stand that the United States attorney believed an offense was com- mitted. The indictment was demurred to. Mr. Giddings was coun- sel, as I understand it, for the defendants and the demurrer was argued before Judge Cotteral, United States judge, and the United CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 93 States judge held — I am not very familiar with it — that the national law that was in controversy, under which these men were indicted, applied solely to where a man was debarred from voting; that it did not have reference to where a man had made a false certificate or had thrown votes out. In other words, the judge held that if the votes got in the ballot box that then this statute could not apply. These votes were all in the ballot box; they were all brought up to the county election board, and if they committed any offense at all under the United States statute it was another offense. I understand that that case has been certified to the Supreme Court of the United States and is pending there. It is pending there, is it not, Mr. Giddings ? Mr. Giddings. Yes. Mr. Oglesby. What did the county election board do ? Mr. Stafford. I do not believe these briefs give the name or cita- tion of that case. Mr. Giddings. It is the case of the United States v. Hogan and Moseley. Mr. Morgan. Now, I have here the Watonga Republican, printed at Watonga, Blaine County, Okla., Thursday, January 9, 1913. It gives the complete decision of Judge Tolbert, who is the district judge of the district in which Blaine County is situated. Here is his decision, and I have his findings of fact and the supreme court decision, which I will read after I read this. But this will give you some idea of Judge Tolbert's decision. Judge Tolbert is a Demo- cratic judge and is now one of the prominent candidates for Congress in the new district created down there, and I understand that he will probably be here and be your colleague in the next Congress, if not mine; I hope he will be mine. This case is entitled: In the District Court of Blaine County, State of Oklahoma. Jacob Wildman, plain- tiff, v. S. M. Allen and the County Election Board of Blaine County, State of Okla- homa, composed of Dan Hogan, Tom Moseley, and W. C. Broady, defendants. Gentlemen: I have listened with considerable interest to the evidence in this case and the stipulations in the other two cases, and have given good attention to the argu- ment of counsel, which has been comparatively brief on the law, and ordinarily would be inclined to be more fully advised as to the law of the case; but as we desire to bring this matter to a close I shall render such judgment on the record as I think proper. The facts are undisputed. The material facts are that the defendants composed the two Democratic members of the election board of this county and together with the other members, the Republican member'. Immediately after the election they met as the law requires to receive the returns from the various voting precincts through- out the county and did receive the returns which in their face were apparently regu- lar, showing that the plaintiff received a plurality of the votes cast; that certificates of election for the various county officers were written out by the secretary of the board at the time and all signed by the Republican member, W. C. Broady, except Wild- man's, and under the facts the court is of the opinion and finds that he signed that certificate; but after the board had formally adjourned and the defendants in this case some days afterward, about the 13th or 14th of the same month, after being advised from some one in Oklahoma City concerning their legal rights, met in the absence and without notice to the Republican member, threw out the precincts referred to, which reduced the vote of the plaintiff, and gave another person, S. M. Allen, the plurality vote to which they issued the certificate. I understand that the law is well settled in this State. Their duties are ministerial; they have no discretion to go beyond the election returns. It is their duty to cast up and declare results and not pass on the legality of the election had or any votes cast at the election. That being so, the plaintiff was entitled to a certificate of election on November 7, when they first met according to the record prepared. The only ques- tion now involved is whether or not the defendants, the two defendants in this case, could defeat Ms right to the certificate by their subsequent conduct in throwing out these precincts, which reduced his plurality to a minority, by issuing a certificate to 94 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Allen. To say that the defendants would have that right — saying the election board would have that right, would say that any two members of the election board in this State could arbitrarily change the complete results of the election in any county or any subdivision thereof. I fully appreciate the law, that the certificate of election is the simple prima facie title to office, and ordinarily the adverse party would have to institute quo warranto proceeding to test the right of office. I don't believe it would be good in a case like this case, where the defendants, without a reasonable excuse or legal cause or even pretended legal cause, simply threw out these votes, precincts, to change the result and thereby throw the burden in a contest of quo warranto proceedings. It is therefore ordered that the writ be granted and, the defendants being parties to this action, the board convene and issue certificates of election to the plaintiffs in this action as per journal entry, and that, the board are ordered to convene and issue this certificate and deliver it to the plaintiff on or before January 2, 1913, or give a good and sufficient supersedeas bond staying the judgment in the value of $1,000, as per journal entry. That case was taken to the supreme court of the State. The title of the case is Allen v. Wilclman (38 Okla. Repts., p. 652). The opinion was rendered July 29, 1913. The court below made certain findings of fact. There is a large number of findings of fact, but I will only read those which I think especially apply to the issue in this case. Findings of fact No. 5: Blaine County is divided into 31 voting precincts, of which the following are in commissioners' districts No. 1, to wit, 9, 10, 11, 12, 15, 18, 19, 21, 25, 26, 27, 28, and 30. Mr. Giddings. Will you give me that citation ? Mr. Morgan. 38 Oklahoma, page 652, Allen v. Wildman. That is a commissioners' district; this case was between two county com- missioners. Finding No. 7 : Plaintiff admits that said election was regularly and duly held in said various voting precincts in said commissioners' district except in voting precincts Nos. 12 and 30, and the election in these two voting precincts, the defendant claims and charges, was null and void, and by reason thereof, not counting the votes therein, he received a majority of the legal votes cast in said commissioners' district. Finding No. 9 : That the election inspectors in voting precincts 12 and 30, prior to the election, received through the mail Exhibits 8 and 9, which are as follows. In that case they call them Exhibits 8 and 9, while in this case they are called letter and circular. But in that case they quote the same circular and letter which we have here word for word. Finding No. 10: The evidence failed to connect the plaintiff in any way with the printing and mailing of said exhibits, and the court is unable to determine from the evidence who caused the said exhibits to be printed and mailed to the said election officers. Mr. Taylor. Who was the plaintiff in this case ? Mr. Morgan. Mr. Allen was the plaintiff in the supreme court. Mr. Rogers. It is the same case on appeal which you read a news- paper extract from ? Mr. Morgan. Yes, sir; on appeal. These are Judge Tolbert's find- ings of fact; the other was his opinion. Mr. Ogeesby. Allen was a candidate for a county office ? Mr. Morgan. Yes; and these same precincts were involved. Mr. Rogers. His name does not appear on this tabulation in the record ? Mr. Morgan. No; because this is the national ticket. I think it does on the county ticket. Mr. Rogers. I do not find it. Mr. Morgan. Look at contestee's Exhibit A. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 95 Mr. Rogers. I have been looking at that, but I do not find it. On page 181, is that the thing? Mr. Morgan. That is true; it does not appear there. Mr. Rogers. It is merely the Federal ticket ? Mr. Morgan. Yes, sir; that is the Federal ticket. Now, finding 18: In voting precinct No. 12 there were 17 votes cast by negroes, and of these 13 can read and write the English language, and 4 can- not and could not. Finding No. 22: One white man who was not a regular voter under the laws of this State by reason of not having been in the State for a period of 12 months prior to the election was permitted to vote for the State ticket. Finding No. 23: One negro voter who could not read or write the English language was furnished a ballot, and permitted to vote for State officers, and not permitted to vote for the county ticket. Finding No. 25: The county election board duly met in session and remained in session November 6 and 7 for the purpose of tabulating the returns from the various voting precincts. Finding No. 26: That from the returns thus made from the voting precincts in this commissioners' district the tabulation showed that the plaintiff herein had received 467 votes, and the defendant 424 votes, and the socialist candidate 190 votes. Finding No. 27: Pursuant to such returns and tabulation a certificate of election was made out by the secretary of the election board to the plaintiff, and on November 7 was signed by Tom Mosely, secretary of the election board, and W. C. Broady, another member, but was never delivered to the plaintiff. Finding No. 28: That subsequent thereto, and on or about November 11, the chairman of the county election board and the secretary thereof met in their office in the courthouse at Watonga, and, after considering the returns and tabulation further, threw out 11 voting precincts of the county, which included precincts Nos. 9, 10, 12, 28, 30, after which they tabulated the remaining voting precincts in this commissioners' district No. l,and the aggregate showed. that the defendant received a plurality of 26 votes, and pursuant thereto the said two members of the county election board issued and delivered to the defendant a certificate of election as commissioner from district No. 1 aforesaid. Finding No. 29: The other member of the county election board, Mr. W. C. Broady, had no notice or knowledge of the action of the chairman and secretary of the county election board in subsequently tabulating the returns and throwing out the election precincts afore- said until after the same had been done and the certificate of election had been issued, as herein stated. Finding No. '32: In voting precinct No. 30 the court finds that 25 votes were cast by negroes. Finding No. 33: Of these 25 voters the court finds that five of them could not read and write the English language; that six were tested, and, after testing them as to their ability to read and write the English language, four were refused the privilege of voting, and two were permitted to vote; that there were three on the outside who could not read and write, and who, by reason of the action of the election officials, did not vote or offer to vote. Finding No. 34: At this voting precinct the court finds that the inspector, upon asking those negroes if they could read and write and upon receiving from them an affirmative answer, permitted them to vote without further test. 96 CONTESTED ELECTION CASE OE CARNEY VS. MORGAN. Finding No. 37: In regard to Exhibits 8 and 9 the court finds that in this box the effect of these circulars (above referred to as Exhibits 8 and 9) was to make the election board cau- tious and to rather intimidate them; but the inspector stated that they did not cause him to swerve fiom his official duty in enforcing the law in regard to the qualifications of voters, and the court can not say that they had that effect. Finding No. 38: In regard to the effect that the circular Exhibit 8 and the circular marked Exhibit 9 had upon the election officials in voting precinct No. 12 the court is unable to find as a fact the result of the distribution of said circulars, but states that J. A. Dunn, the inspector for that voting precinct, testified that, having received these, he was deterred from strenuously enforcing the law in regard to the test to be applied to negro voters for the purpose of determining their ability to read and write the Emglish language, or any section of the constitution, and especially as to national matters, as he was in awe of the Federal courts, and when a negro presented himself with the statement that he was able to read and write he ordinarily permitted him to vote. Then follows the conclusion of law. The court is of the opinion that the plaintiff is entitled to recover, and it is so ordered ; and counsel will prepare a formal journal entry, accordingly to which defendant excepts. Here is what the supreme court says so far as the election of the plaintiff in this case was concerned: 3. Was the plaintiff elected under the facts found? The burden in the trial court was upon the plaintiff. Rampendahl v. Crump, 24 Okla. 873, 105 Pac. 201. Under the face of the returns, as found by the court, plaintiff was elected. Under the court's findings was the prima facie case established by these returns destroyed to such extent as it was rendered incumbent to purge the boxes in order to prevail against the certifi- cate of election held by the defendant. It is admitted in the pleadings that the vote, as tabulated and shown by the records, is correct, except as to precincts 12 and 30. Under said admissions the plaintiff received in the uncontested precincts 362 votes to the defendant 346. In precinct 12 plaintiff received 90 votes and defendant 50, accord- ing to the face of the returns. The court found as to said precinct that 17 votes were cast by negroes, 13 of whom could read and write arid 4 could not. The finding neither discloses as to whether they or their ancestors had lived under an organized form of gov- ernment prior to January 1, 1866, and were entitled to vote thereunder, nor as to whether they or either of them on January 1, 1866, resided in a foreign country and have since then become naturalized citizens of the United States or were the descendants of such persons. But charge these four votes to the plaintiff as invalid. The court also found that one white man voted who was not a legal voter. Charge this also to the plaintiff. That makes only five illegal votes in said precinct, which, being charged to the plaintiff, reduces his majority in said precinct to 35. In precinct 30 plaintiff received 31 and the defendant 12, according to the face of the returns. The court found that 25 of these votes were cast by negroes, and of said number five could not read and write. No finding was made as to whether they or their ancestors, prior to January 1, 1866, lived under any organized form of government and were entitled to vote, nor as to whether they or either of them on January 1, 1866, resided in a foreign country, and since then have become naturalized citizens of the United States, or were descendants of such persons. But consider them as illegal and charge these five 'votes to plaintiff. That would reduce his majority to 14 in said precinct. Then add the majority of the plaintiff in said precincts 12 and 30 together, to wit, 35 and 14. That makes 49 majority. Deduct from the 49 majority 16 votes, the majority on the returns in favor of the defendant as to the other precincts. Then the plaintiff was elected by 33 votes. This calculation is based on the theory that all the illegal votes were cast for the plain- tiff, and on the assumption that the verity of the returns from precincts 12 and 30 was destroyed. Now, notice what the court says : It is not contended that the election officers acted corruptly or dishonestly, but merely through intimidation illegal votes were received. This intimidation under the finding of facts was not traced to plaintiff or his agents. Now, I want to read section 2735, General Statutes of Oklahoma, 1908. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 97 Mr. Taylor. This is a statute ? Mr. Morgan. Yes. [Reading:] Any member of a precinct, county, or State election board who refuses to execute a correct and proper certificate of nomination or of election, or who issues or executes or aids or abets in issuing a false or fraudulent certificate, or who alters or changes any certificate in his possession or care, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than $25 nor more than $500 and impris- oned in the county jail not less than one nor more than three months. I am not a criminal lawyer — not much of a lawyer of any kind, although that is my profession— but here is what occurred, as shown in the records. I "have shown you by reading from the newspaper report of the district judge's opinion, the local decision, and I have shown 3'ou hi 3 findings. I have read those that were most unfavor- able to me, if there is anything unfavorable to me. I have shown you that the whole finding is from this Democratic court up to the Supreme Court, that the" throwing out of these 11 precincts was absolutely unjustifiable and that it was, as the judge finds in his decision, without any pretended legal cause. The whole case in the court did not reveal that they made any excuse why they threw these out. The only thing was to elect three Democratic officials in that county and' to take away 228 votes from the Republican candidate for Congress. Mr. Oglesby. Is it not your theory that they threw them out on the ground, after they went to Oklahoma City, that the permit ion to let these men vote who were not entitled to vote, under the influ- ence of this circular which intimidated them, tainted the vote in those election districts and therefore made it impossible to separate the good from the bad, and they threw them all out ? Mr. Morgan. I suppose so. I suppose they thought that if they had a suspicion that there were any illegal votes they could throw out the whole precinct. They certainly must have had some excuse for it, but there is no excuse given in the record. Mr. Hogan was put on the stand, but he refused to testify. His attorney advised him that as there was a case pending in the courts against him, or something of that kind, that he had a right to take his privilege and refuse to testify as to what he did and why he did it. Mr. Oglesby. Did they not present some argument to the court to justify their action in throwing out these precincts? Mr. Morgan. It seems not, from that decision. The court in his decision says without any pretended legal excuse. Mr. Oglesby. You have no information about that then, except what is in the record. Mr. Morgan. No. Mr. Oglesby. You were not present and did not hear the argu- ment ? Mr. Morgan. No. Now, then, as to the real situation in this case. They have come here, gentlemen of the committee, and have talked about what Mr. Boardman did and have gone back two or three degrees and shown that he was once connected with my campaign as my campaign mana- ger, my former campaign manager, which I admit, of course, and they think that is sufficient, in some way, that this committee will, through imagination, in that way connect me with what Mr. Boardman did or 46996—14 7 98 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. what somebody else did. But I say that that would be unfair and be unjust; it would not, from any legal standpoint, certainly be justifi- able in any way, manner, or form, because there is not the slightest testimony in this record to show that I entered into a conspiracy with any person about this thing, that I had any knowledge about it or any connection with it. But, gentlemen, it seems to me that the contest- ant in this case knowing, as he must have known, that 11 precincts in Blaine County were thrown out without any legal excuse of any kind, as has been decided by the district judge of his own party and supreme court judges of his own party, robbing me of 228 votes, •endangering, perhaps, the issuance of my certificate of election, a crime those men committed as I conceive it under that statute, where they made a false return of the real vote as certified to them — and yet throughout all this case they have not said or even admitted that I was entitled to those 228 votes. If they Wanted to come here with absolutely clean hands it seems to me they ought to have admitted that there were 228 votes to which I was entitled that I did not get. It seems to me they ought to have conceded that I lost those 228 votes by the wrongful act of those Democratic election officials. But they did not do that; they compelled me to introduce witnesses and to go to great expense to come here and present an argument to establish a fact that appears to me should have been conceded. I have here a tabulation of the votes in these various precincts of the second congressional district, where any evidence was introduced, and I would like the members of the committee to notice that table. Table No. 7. — Number of negroes who voted in the precincts in which there is any evi- dence in the record of negroes voting as shown by estimates of witnesses. Where two witnesses made estimates, the table shows the highest estimate. Township. Name of officer testifying. Page of record. _ Esti- mate. Vote. Carney. Morgan Oklahoma County: Dewey Luther Luther City Choctaw Crutcho Sixth precinct of ward 2, Oklahoma City. Ninth precinct of ward 2, Oklahoma City. Springer Deep Fork Blaine County: Flynn Wa tonga Oklahoma County: Greeley Oklahoma A Hartzel Blaine County, East Dixon 9 . . . Canadian County, El Reno "A" of ward 2. Davis, inspector Vorel, inspector Ray, inspector Kenyon, clerk , Redding, inspector. Sorrels, inspector . . . Lucas, inspector. . . , Baker, clerk Morris, clerk Howell, judge Temple, inspector . . Needham, inspector Baker, inspector. . . Jack, clerk Beals, judge Fortner, inspector . . 74 78-79 110 143 53 55 59 113 214 48 120 6 7 25 90 774 909 80 152 48 57 105 109 151 129 103 22 1,332 Note.— If all these negro votes were thrown out and all the white votes counted, it would not overcome Morgan's proven plurality of 891 votes. Morgan's plurality in the above precincts is 423 votes. If the entire vote of these precincts were thrown out it would still leave Morgan a plurality in the district of 240, as shown by the face of the returns and as admitted by contestant, and a plurality of 468 votes, according to the proven plurality of 891 votes for Morgan. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 99 I have undertaken to give to this committee some conception of what I think you can get out of the record. The table to which I have just referred shows the number of negroes who voted in the precincts. Now, gentlemen, there is nothing in this record to show how many- votes were cast for Mr. Carney in that district; there is nothing to show how many votes were cast for me in the precincts in Oklahoma County where this controversy arises. There is nothing in the record. How does the contestant expect you gentlemen to make an intelli- gent deduction from whatever contentions there might be in his case ? But I have collected from the record the evidence which shows * how certain witnesses were asked about how many negroes voted in the various precincts, and I have given the highest estimate that any witness gives in a certain precinct. Here is what the record shows: In all these precincts it shows that according to the estimates there were 774 negro votes cast in those precincts where there had been any evidence introduced; 774 negroes voted, so far as this record shows. Mr. Rogers. This table to which you have just referred is prac- tically a recapitulation of the two tables on pages 82 and 83 of your brief? Mr. Morgan. Yes. But I have arranged those figures in one table because I thought that would be a more easy way for the committee to understand it. Laying aside the technicalities, I simply collected it all in one table in order to show that so far as the record goes there are only 774 negro votes as shown in this record, and this committee can not go outside of the record. Now, if I were elected by 891 votes, if you would throw out every negro voter in those precincts and count the white votes I would still be elected. So far as my title to this seat in Congress is con- cerned, it does not depend on a single negro vote that has been shown by this record to have been voted. Throw them all out, school- teachers, preachers, and every man of the highest intelligence of that race; throw every one of them out, so far as there is any evidence in this record of negroes voting on that day shows, and my title is still clear. There is only one of two ways by which you can reach any intelli- gent conclusion on this .case. You have got to consider these pre- cincts in which there were alleged illegal votes, or else you must throw out the entire precinct. One method or the other must be used by you in order to reach an intelligent conclusion. Now, then, here is the Blaine County case, involving the same kind of evidence. What did the court do there ? What did the Democratic court do ? In a way it found there were two or three negro votes voted in those two precincts that could not read and write and were not entitled to vote. That is, that the precinct election officials had erred. But taking those off, the Republican was still elected as county commissioner. I claim, Mr. Chairman, that if the contestant in this case had shown proper diligence he would have gone into those 17 precincts and determined absolutely and accurately how many illiterate colored votes were voted. What was to hinder him ? 100 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. That is a well-settled community. The precincts are small; they have their political organizations; those election officers are men who live there; the negroes are known; they have the names of the voters. Why was it not capable of determination, and why could not the contestant have come here to this committee with facts that will absolutely prove what they claim, without any great expense ? But they did not do it, and I say it to you that no committee can take this record and determine anything about how many votes were cast there or anything of that kind. You can not do it, gentle- men, and it is not fair. You have to take one method or the other; either throw out the illegal votes or the entire precinct. As I have shown, if as the counsel for contestant says, you can not separate the good from the bad, the ignorant from the illiterate, which I think you can - I do not think that, but even if you throw out every negro vote that was cast in these precincts, and give me what I am entitled to in Blaine County,, I was still elected by 240. But suppose you take the other side of it. Suppose you do as Mr. Giddings says; suppose you throw out all these precincts where any evidence was introduced of any negroes voting there; throw them all out, throw out the black man and throw out the white man, and yet I am still elected by 468 votes. Throw out those 17 precincts, and, if you will, disfranchise those men who voted honestly and were entitled to vote, because, perchance, two or three men did vote illegally; disfranchise those people and throw them all out, and still I would be have 450 plurality. Even if you throw out all those precincts, everything there, upon what theory, upon what possible theory that the contestant in this case can expect a favorable decision is more than I can understand. I say to you frankly that I do not believe the contestant in this case has behind him in prosecuting this case against me any great portion of the Democratic sentiment of the second congressional district of Oklahoma. I do not think he had behind him a majority of his own party in prosecuting this case. I will admit that I may be prejudiced, that I am personally deeply interested, but I maintain that so far as I am concerned, and so far as this case is concerned, this case is absolutley without merit. A man who becomes a candidate for an important office like a Representative in Congress, ought not to institute a contest to cloud the title of the man who holds the certificate 1 and embarrass him in his work for the people in the Congress of the United States ; he ought not to do it unless he can come with clean hands and with a case that has real merit in it, and unless he can come with a case that would appeal strongly to your sense of right and justice, he ought not to bring such a case here. I will confess that I have not been uneasy, that I have not felt there was any danger that I would lose my seat in the Sixty-third Congress as a Representative from the second district in Oklahoma, and yet it has been a weight on me. The mere fact that a contest is pending against a man is an em- barrassment to him in his work, and so, to some extent, it has been an embarrassment to me. So, as I stocd first before this committee, I will admit that I was somewhat affected. Why ? Because it seemed to me, in a way, that CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 101 it was unjust, and that I ought not to have been placed in a position where I would have to stand up here and defend my title to this seat. I do not question Mr. Carney's motives. He and I have known each other for a gocd many years, have lived in the same town for three or four years, and we have never had a unkind word between us. During the campaign, I think it was generally conceded that the campaign was conducted without any animosity; so far as I know I never heard of him. saying anything improper about me, and I never said anything improper about him. We both made the campaign upon what we supposed to be cur own merits, and I hardly men- tioned his name in the campaign. I do not question his motives, and I have no ill will against him, but I do think he has been misled into embarrassing me in this case, and I do not believe he had back of him a majority of his own party, and I think his case is absolutely without merit. Now, gentlemen, I have said that I would be willing to leave my case and let it be tried before Democratic members of Congress from the State of Oklahoma. I have said that believing that these men are honest, that they are men who would not deprive me of my certifi- cate unless I could be rightfully and lawfully deprived of it. And I have said too that I had every confidence that the Democrats com- prising this Congress, and that the Democrats who would be put on this committee and who have been put on this committee, would not, under any circumstances, be guilty of rendering a partisan decision. So I have come before you, and although in politics I do not agree with the majority of the membership of this committee, I come to you with full confidence that you will do me justice, and feeling that you will do so, and hoping that you will promptly make a report that I am entitled to my seat, and I hope that, gentlemen, as far as I am con- cerned, that that will be done at the earliest date possible. I want my hands free; I want to go out from under this cloud, this shadow that has been brought upon the title to my seat, and I ask you to do that at the earliest date possible. Mr. Bowdle. This morning, under the impulse of your kind invi- tation, I asked you three or four questions that might seem to carry the implication that I was personally hostile to your claims in this case. I do not wish those questions to bear upon that implication. Mr. Morgan. I never thought anything about that; I did not take it in that way. I am very thankful to the committee for the time I have been given. The Chairman. Your counsel will begin his argument on Monday morning ? Mr. Michener. Mr. Chairman, in his brief Mr. Giddings has spoken at considerable length in regard to the fourteenth and fifteenth amendments. I do not wish to discuss that question, and I shall not say anything at all on the subject on Monday morning unless he says now that he expects to discuss the question in his closing argument. Mr. Giddings. I think I can answer that in this way, Mr. Chairman, and gentlemen: I must be home in Oklahoma by the 6th of May. I have some very important matters pending in the courts there, and unless I can get away from here some time on Monday I can not possibly get home by Wednesday. I was wondering if it will suit counsel on the other side if I were to speak, following Mr. Morgan, on Monday, and let Mr. Michener follow me? 102 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Michener. That will be entirely satisfactory to me. Mr. Giddings. I am going to make this proposition to the commit- tee when it convenes on Monday morning: First to let counsel for the contestee digest in the record those points which counsel desire answered, and I will do my level best to answer them. I also suggest that the members of this committee who find in the record any ques- tion that any member may desire me to answer, that I will try to answer that. That will shorten the argument somewhat. If counsel for contestee has any questions he desires me to answer, if we can get at it in that way it will shorten this argument, and the same will apply to members of the committee, and I can perhaps get through in an hour. Mr. Oglesby. You mean if you can avoid interruptions you can get through sooner. Mr. Giddings. Yes; it would shorten the argument. Mr. Stafford. You desire to try to conclude by 12 o'clock noon? Mr. Giddings. I do not intend to consume as much time as that, if possible. Now, speaking of the proposition made by Mr. Michener, I do not intend in any manner to convey the meaning that I have waived the proposition you suggested, Mr. Michener, and I think I suggested the other day I did not waive that proposition; I do not intend to waive it. Mr. Michener. There is one other question I would like to put in the record at this time. I would like a citation to the Oklahoma statute, if there be one, which authorized the inspector of elections to make a return to the county election board. If I read the statutes right I think the pre- cinct returns are made by the official counters, and not by the inspectors. The Chairman. We will adjourn until 10 o'clock Monday morning. (Thereupon, at 12 o'clock noon the committee adjourned to meet on Monday, May 4, 1914, at 10 o'clock a. m.) Committee on Elections No. 2, House of Representatives, Monday, May 4, 1914. The committee this day met, Hon. James A. Hamill (chairman) presiding. The Chairman. The committee will hear Mr. Giddings this morn- ing. You may proceed, Mr. Giddings. ARGUMENT OF E. J. GIDDINGS, ESQ., COUNSEL FOE CONTEST- ANT — Continued. Mr. Giddings. If it please the committee, I am quite satisfied that the minds of the members of this committee are still open to the reception of arguments on both sides of this contest. In my opening statement before this committee I tried to be cour- teous to each questioner, and particularly courteous and considerate of the contestee and his official position. I do not want that which I am about to say to be considered, even remotely, as a personal reflection upon Mr. Morgan. I am going to argue this case as a CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 103 lawyer and seek, to the limit of my ability, seriatim, to take up each and every point advanced by him so far as the limit of my time will allow. In closing this case for the contestant I want to state that no statement made in the opening of this argument as to what was the law of Oklahoma, and that no fact presented to this committee which is in this record, either directly or incidentally, is now sought to be withdrawn, but reaffirmation is given now of every statement made upon behalf of this contestant, and when you gentlemen get the argument in this case, those of you who have been unable through the stress of other important matters to attend all the meetings of this committee during the hearing of this case, I want to charge your memories here and now with this statement and this prophecy — that you will find that no statement that we have made as to the law of the State of Oklahoma, that no fact we have called your attention- to even remotely, has been contradicted by anything so far said upon behalf of this contestee. And I want to charge your memories, when this argument is concluded, that the same will not apply to the remarks of Mr. Morgan. Some matters have been suggested here by Mr. Morgan that are outside of this record, not for the purpose of seeking to influence the minds of the Democratic members of this committee or anybody else, but that this statement may not go unchallenged in this record as to the position of the Democrats of my State with regard to Mr. Morgan's district, the second congressional district of Oklahoma, and as to the position of the Democratic Members in Congress in regard to that, they themselves quite emphatically deny that you were correct, Mr. Morgan, in your statement of opinion as to the position of the Democracy of Oklahoma or the Democratic Members in Con- gress from the State of Oklahoma, and I say to you that from the Senators down and the Senators up of the Oklahoma Democratic delegation they have personally wished both to Judge Carney and to me godspeed in this contest. I do not want any statement to go home to my people to the effect that any statement of record here by Mr. Morgan went unchallenged that the Democratic Members in Congress orthe Democrats in the Oklahoma delegation were behind him even remotely in this contest. I call your attention to this fact, that Senator Owen personally told me he sincerely trusted that Judge Carney would prevail in this contest. I also call your atten- tion to the fact that the other Senator from Oklahoma has made the same statement, and that every Democratic Congressman from Okla- homa likewise has made the same statement, and that Mr. Morgan is therefore evidently mistaken, honestly mistaken, in his statement made before this committee in regard to that matter. Another suggestion made by this gentleman was — and I am getting at the last part of his argument first, in order to answer the most important statements he made early in my final presentation — that he would be willing to trust the decision of this contest to the mem- bers of the Oklahoma delegation. While these things are out of the record, and to a certain extent rather childish, I want this record written as it ought to be written. I wish to God this case could be submitted to the Democratic Members of Congress from Oklahoma, and if you want to, Mr. Morgan, we will make an agreement with you right now to that effect. That is out of the record, but I want those 104 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. things in the minds of the members of this committee, and I want the minds of the members of this committee disabused thereon, and I want to say that the argument or statement is only made, and never would have been made except for the statement of Mr. Morgan in his closing of this contest for the contestee before this committee. I said that no statement of law made at the outset of this case do I now desire to withdraw. In reference to the matter of registration which some may think an insurmountable barrier to the problems of this contest, upon the part of the consestant, I here reiterate that at the general election in 1912, it was the duty, regardless of registra- tration, of the precinct election inspector to qualify at the polls. I made that statement in my opening, not citing authorities nor stat- utes in regard thereto, relying upon the statement with full knowl- edge that it was the law of Oklahoma, and passing it up to Mr. Morgan to say what he would either in denial or affirmation of it before this committee. Now, then, I come to this decision, and then I will show you by the laws of Oklahoma, passed subsequent to that decision, that that was the law within the jurisdiction of Oklahoma at the time of the holding of the general election of 1912. This Show case, cited by Mr. Morgan, is under this state of facts: Previous to the adoption of the amendment in question, known as the grandfather clause, a negro registered in October preceding the election, if I remember correctly — at least preceding the adoption of the amendment; that he sought to vote subsequent to the adop- tion of the amendment; that that which he submitted to the elec- tion inspector was an affidavit — these facts are in the record, set out copiously in the brief of the contestee, Mr. Stafford. I here charge your memory that I would show you that case, and set out in full in the record that upon an affidavit that he was competent to read and write a section of the Constitution, and that a specimen of his handwriting was upon the affidavit; that he requested, under his certificate of election, the right to vote, and the election inspector required him to make a test then and there in the presence of the election inspector. He refused to do this; he complained to the county attorney about it, and that information was filed charging the election inspector with a violation of the laws of the State. Two questions were presented for the determination of the court in that case. The first is of no moment in this case; it only went to the question as to whether or not a writ of habeas corpus would lie where one was charged with a crime in any degree or whether the remedy of one so charged was not by an appeal in the event of a con- viction, the court holding that where the information charged no offense, and where none could be charged, by an amendment of the information, that the prisoner was entitled to his release under a writ of habeas corpus. The second question was as to the effect of the registration certifi- cate; and as to whether or not under an affidavit, and under those things alone, the inspector could refuse the negro the right to vote at that election. The court held, releasing the petitioner, that the inspector then had the right to qualify him at the polls, but specifically called attention to the fact of the registration antedating the adoption of the grand- father law. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 105 In that decision the court held that the certificate of registration then entitled the registered voter to vote, in the absence of fraud, but they qualified that by saying that if the election inspector, in fraud, or under the pretense of depriving some one unlawfully of the right "to vote, should require an additional test, he would be guilty of a crime. Even the affirmation of that proposition that under the pretense of depriving an elector of the right to vote, that in doing that the inspector would be guilty of a crime, is contained in the negative, that in the event he did not do it under pretense of unlaw- fully depriving the elector of a right to vote, he had not committed a crime. But so cloudy was that decision and so susceptible of different con- structions, that the legislature, having it in mind when that body convened in 1911, a year after the rendition of that decision, passed a law which required each and every inspector a challenger at the polls, to qualify and compel an elector, when challenged, to read and writ? any section of the constitution of the State. Mr. Stafford. Will you kindly give us that citation ? Mr. Giddings. I am going to do so. Now, then, evidently Mr. Morgan was misled by somebody when he stood before this committee and told the members of it, not once, but many times, that no power was vested in the election inspector to require the educational qualification test in the election held in November, 1912; and through the medium of being misled himself, he evidently misled the members of this committee. I wanted to take that question up first, because I know that the members of this committee who are lawyers evidently were thinking that there was something wrong with the situation where the courts of the State had held that, prima facie, a certificate of registration gave the negro a right to vote. I will, in a few moments, quote to you from the Session Laws of the State of Oklahoma. I do not think that Mr. Morgan intentionally intended to mislead the members of this committee, but if he is wrong on this proposi- tion — and I call it to your attention at the outset — he may be wrong on others with regard to the evidence and the law in this case. Now, listen to this a moment, and let me show you who is right in regard to the laws of Oklahoma. Let me suggest to you further that the man who presents a case to this committee ought to investi- gate the laws of his State before he tells the committee that certain provisions are the laws of the State. Section 4 of the Session Laws of Oklahoma of 1911, a year after the rendition of the decision in the Show case, a year after Judge Richardson decided that case and rendered that opinion, a year after the general election of 1910, says: Sec. 4. Any elector shall, upon presenting himself to vote, announce to the clerk of the election, town, or, if a city of the first class, give his street number. Any election inspector or challenger may challenge the right of any person to vote, and if a person be challenged on the ground that he is not able to read and write any section of the Constitution, and was not a legal voter under any other form of government on January 1, 1866, or one whose ancestor was not a legal voter on said date, before being permitted to make the affidavit required by law, he shall be required to read and write any section of the Constitution. No person challenged shall be permitted to vote unless he make affidavit in writing that he is a qualified legal voter of the precinct, also his name, residence, occupation, place or places of residence during the six months prior to the election, with the date of any removal within that time and the names of two persons who have personal knowl- 106 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. edge of his residence in that precinct 30 days, in the county six months, and in the State one year. He shall then be allowed to vote, unless the election inspector or challenger make affidavit in writing that he knows or is informed and verily believes that the person offering to vote is not a legal voter of the precinct, and the person offer- ing to vote shall not be thereafter allowed to vote unless one qualified elector of the precinct who has been a freeholder or householder in the precinct for at least one year next preceding such election shall make affidavit in writing that he has personal knowledge of such person offering to vote being a legal voter in the precinct. That is the law of 1911, and yet Mr. Morgan stood before this committee and told the members of this committee, not once, but many times, that the certificate of registration in cities of the first class gave the one having the certificate the right to vote, in the absence of fraud. Listen to the reading of this law. It does not merely refer to country precincts; it does not exclude city precincts; it does not exclude cities of the first class; the words used are "any election inspector/' meaning all election inspectors at the polls on election day. In view of that decision he read to this committee, is it not fair to assume that Mr. Boardman, when he wrote that letter, knew that that was the law of the State, because in the letter itself, at the close of it, he states that under the then existing laws of the State of Okla- homa the precinct election officials are quasi-judicial officers. Cer- tainly that must dispose of one of the main contentions of Mr. Morgan. I come next to the question of this Boardman letter, and with all due deference to you, Mr. Morgan, I say that your position in this case, under your pleadings and under your testimony, is neither envi- able nor satisfactory. I hold in my hand the printed record in this case, containing as it does the answer Mr. Morgan solemnly filed as telling the truth in January, 1913, about one month and a half after the election. Let us see now what he says in this answer, and let us see whether or not the inconsistent attitudes and the wobbly positions he takes before this committee entitle him to the righteous indignation he showed before the committee. On page 12 of the record Mr. Morgan denies that he wrote the letter; he denies that he read it and says he is informed and believes that he did not write it, and yet he stands before this committee and says that he knew nothing about the letter, or that Boardman had written it, until the October of the year succeeding. This is what he says on page 12 of the record: That practically all of the second congressional district is within that part of the State of Oklahoma which comprises the said western judicial district of the State of Oklahoma, but this contestee is informed and believes that no letter or opinion of the sort, kind, or character as set forth in said sixth paragraph of said notice of contest of said contestant, a copy of said letter or opinion being attached to contestant's notice of contest and marked "Exhibit B," was written by the said Boardman, and this contestee therefore denies that said Boardman wrote a letter or opinion of the sort, kind, or character as set forth in said notice of contest. That is, that previous to January 13, 1913, he, Morgan, had been informed that Boardman had not written any such letter. From whom can he get the information? Boardman. What shall be the source of his information ? Surely the source from which it originated in the first instance. And then he stands before this committee and tells the members of this committee that in October, 1913, he, returning to Congress CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 107 for the session of 1912, and not returning to Oklahoma until 1913 that he had no knowledge that Boardman had written a letter, and no information upon the subject. Mr. Rogers. Mr. Giddings, the phrase following those phrases which you have read to us reads: And if the said Boardman did so write a letter of said sort this contestee denies that it was written with the consent, knowledge, approbation, or connivance of this contestee. Does it not strike you that that denial is in the form customary in legal pleading ? Mr. Giddings. No, sir; because here preceding it is the positive averment that he was informed that Boardman had not written the letter, and my contention is that that does not conform to his state- ment made before this committee that he had no conversation with Boardman until the preceding October, and knew nothing about his having written the letter or into what channels it had gotten until that time. Now, let us take some more positions in this case and see whether or not they justify finding that there is such consistency and fairness upon the part of this contestee as to put him in the most favorable light before this committee in regard to this contest. He stood before this committee and virtually admitted the legality of the grandfather clause. He says that from the stump he only advised qualified voters to vote; that he never questioned anywhere or at any time the validity of that amendment on the stump; that all he advised the voters of Oklahoma to do was that those who were qualified should vote upon the question. And yet in his answer he emphatically denies the validity of the grandfather clause, and emphatically denies that it had any applica- tion to the vote on Members of Congress within the State of Oklahoma. Now, mark you, he was telling, according to his own statement, the citizens of Oklahoma, and advising them that qualified voters should vote. What was his opinion at the time that he was iraking these statements to the citizenship of the State as to whom, within the State of Oklahoma and within his congressional district, were quali- fied electors? In the fifth paragraph of his answer, on page 12 of the record, he says — This contestee denies that said amendment is valid under the Constitution of the United States or that its provisions are applicable in an election for Representative in the Congress of the United States. That was his opinion before he appeared before this committee ; it was his opinion when he was upon the stump in Oklahoma that it was an invalid law; and I shall not embarrass him by asking him how he voted upon that law when it was up for ratification or rejection by the people at the polls. Another inconsistency — and I am showing you these things before I get into other matters — is that he stood before this committee con- tending that where an elector had a certificate of registration in a city of the first class that in the absence of fraud in the registration he was entitled to vote, and then he sets up in his answer that the precinct election inspectors within the several precincts in the second congressional district at the general election of 1912 lawfnlty enforced the grandfather clause. 108 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. I now come to the question as to whether it is possible under this record and under the record in the Davis case, and under the general information that people must have upon this subject, as to whether or not Mr. Morgan knew anything about it, or as to whether or not the members of his congressional committee knew anything about it, or as to whether or not his son knew anything about it, and I want to show you the infamy practiced in that congressional district and show you the means used to intimidate and oppress those whose duty it was to enforce the law. I want to specifically call your attention to this most significant fact in this record, that to the Democratic elec- tion inspectors alone, to the Democratic clerks alone in that congres- sional district was this warning circular sent or was this letter of Mr. Boardman sent, and that to the Republican officials, so far as this record discloses, it never was sent. And I want to show you that somebody well acquainted with the political conditions in Oklahoma, somebody who knew all about these matters, was responsible for the issuance of these things and the mailing of them simply and only to the Democrats in the district, who happened at that time, unfortu- nately for them, to be members of precinct election boards. It is a singular fact that if this were not done by some Republican committee under the guidance of some Republican hand and was intended for general distribution among the election officers of all political faiths, that it found its way by some peculiar serpentine process only into the hands of the Democratic election officials of the district. And this also is significant in this record, that Mr. Morgan makes the statement that when he talked to Mr. Boardman, this high-minded man of his who would write such things and send them out, Board- man told him he was at Lawton at that time, that his office called him up by telephone and told him that they wanted to get out this letter, that there was a request for it. What did they want it for; as an ornament to decorate the walls of Wagoner? What did they want it for ; merely as a keepsake and a memento ? What was the purpose of it unless it was to intimidate somebody or promote the success of somebody through the medium of such intimidation ? So urgent was the matter that they called him on the telephone, the people in his office called him, and asked him about the advisa- bility of the signing of such a letter and the sending of it to a county attorney whose name appears as one of the attorneys of one of the contestees in these litigations. So they called him up. It was a matter of importance. It was a matter of so much importance that they used the long-distance telephone to get in communication with "our chief, " in order to do what ? Three or four days were elapsing then between the time of the election and the sending of that letter. It was necessary to have it before the election. Under this statement of Mr. Morgan the time was not sufficient to send the letter to Mr. Boardman through the mails and for him to sign it and send it back to the office of the United States district attorney at Oklahoma City. They did not have the time. They wanted it for use then. That is the statement of Mr. Morgan in this record and that is undeniably borne out by the facts. So they dians, or is that a common practice among other Indian tribes ? Mr. Carney. As far as I know that is, but where any extensive adoptions are going on Mr. Stafford. What is the population of the Creek Tribe ? Mr. Carney. There are some Chickasaw negroes and some Co- manche negroes and some Kiowa negroes that were adopted and took Mr. Stafford. What is the population of the Creek Tribe ? CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 147 Mr. Carney. I do not remember. Mr. Stafford. Can you give us some estimate of it? Mr. Carney. They are not enumerated as a tribe, because their tribal government has been dissolved. Mr. Stafford. Can you estimate generally; can you tell us whether there are 10,000 or 100,000? Mr. Carney. I do not think there are more than 10,000. Mr. Rogers. Are they mostly in the second congressional district? Mr. Carney. No, sir; there are none of those in that congressional district. Mr. Bowdle asked me a question as to what the negro population was. Mr. Rogers. My inquiry was as to the second congressional dis- trict. Mr. Carney. Yes, sir; in the second congressional district there are none of those Creek Indians, because the Creek Nation does not extend into the second congressional district. Mr. Bowdle. Mr. Carney, let me suggest this proposition, and ask you whether or not it is correct. As I gather it, the tendency of colored men in the South is not to vote unless invited to vote. Is the tendency of the negroes in Oklahoma to vote unless prevented from voting? Mr. Carney. Decidedly so. Mr Bowdle. Does that state the political and sociological situa- tion there ? Mr. Carney. Decidedly so. Mr. Broussard. Let me follow Mr. Bowdle's question with an- other one. I understand that in inviting population into Oklahoma, by people who are interested in disposing of lands, that in some sections of the South negioes were invited to go there because they could not vote in the States from which they came, but they could vote if they went to Oklahoma. Is that a fact? Mr. Carney. Yes, sir; they always have voted without any restrictions until the adoption of the grandfather clause through an amendment to the constitution. Mr. Broussard. So that might explain the tendency that the negroes have had, and their desire to vote, by moving into that locality with a view to exercising the franchise which they could not do in the State from which they formerly came. Mr. Carney. In the opening of that country and settlement of that country, during the period of its settlement, negroes came in large quantities, in colonies from the South. A great many came from Tennessee and from Mississippi and settled in colonies. Some of those colonies are in the second congressional district of Okla- homa, principally in Blaine County. Mr. Broussard. Some went there from Louisiana? Mr. Carney. But not in that district. Mr. Broussard. I do not know about that. Mr. Carney. Now, gentlemen, Mr. Morgan, in the spirit of en- thusiasm which prompted him to speak as he did in his opening statement, said he came here as the representative or spokesman of the Democrats and the Socialists and the Republicans of Oklahoma. I do not know about that. If the spirits of the great dead take an interest in affairs like this, and listen to such statements, I am disposed to believe that Thomas 148 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN". Jefferson, if he could have heard that statement, would have mut tered a strong denial, and the great, and as most of us believe, the deluded Karl Marx, would have shrieked a denial. Mr. Morgan, in Oklahoma, has not been regarded as much of a Democrat; but, on the contrary, as I understand it, has been regarded as a standpatter — took in the Payne Aldrich bill hook and bait — went the whole hog, and I think that part of his speech should be accepted with great limitations. The Chairman. He has not any affiliations with the Bull Moosers out there, has he ? Mr. Carney. Well, I do not know. He seemed to make them affiliate pretty well. They would not get out any ticket in the dis- trict; there was no Bull Moose candidate, and I think Mr. Morgan, when occasion demanded, could make a Bull Moose speech. Now, gentlemen, Mr. Morgan in the course of his remarks before this committee made some reference to this contest as far as it reflected the sentiments of the Democrats of the State and of the second congressional district, and in very broad and plain terms said he did not think that the contest here filed and represented by myself and my attorneys reflected the sentiments of anyone scarcely, except those appearing in it, or words to that effect; and he even went so far as to say that in his opinion, that if the matter were left to the decision of the Representatives in Congress from Oklahoma and the Senators from Oklahoma and men of influence in that State that he would come out victorious in this contest. I do not know what to say in answer to that kind of a charge. It is a very broad — I would almost say audacious — charge to make before this committee. I have not so far received any discouraging expressions from the Members of the Oklahoma delegation in Con- gress. On the contrary, everyone of them who has spoken to me concerning the matter has wished me well, and they have all spoken, except the two Republican Members of the delegation in the House, and it must be that Mr. Morgan, by some sort of telepathic communi- cation, has received information that is not revealed by the spoken words of the Members themselves, and lies in their own consciences. In their spoken words they have said differently. Mr. Oglesby. You used the word " audacious" in the sense of bold? Mr. Carney. Yes, I think so. Mr. Stafford. " Brash," I believe, is the southern expression. Mr. Carney. Mr. Chairman, a great deal has been said before the committee concerning the letter written by the United States district attorney for that district and the warning circular which was sent out with the letter to the various Democratic election officials in the various precincts in that district. On the part of my counsel it has been contended very strenuously and emphatically that this warning circular was a matter of grave importance, and that it had a great influence on the determination of this election. Mr. Morgan and his counsel seem to think differently and treated the matter rather lightly, undertaking to show from the record that it had very little influence on the outcome of the election and upon the question of determining the vote cast at the various polling places in the district on election day. CONTESTED ELECTION" CASE OF CARNEY VS. MORGAN. 149 Now, gentlemen, I do not know whether you have all had cases like this. I know that some of you have not had, because in the regions where some of you live this trouble does not arise. I do not know whether you have reflected upon the probable consequences of such a circular and the probable effect it might have upon the minds of the precinct election officials who might receive it. I am speaking now to the most intelligent jury I ever addressed, educated gentle- men. Most of you, as I observe from the Congressioanal Directory, have had some academic experience, have received degrees from col- leges. You know from your academic learning, and from your ideas of and experience with humanity as lawyers and men of affairs, what influences the human mind and what effects certain conditions may produce. I am going to speak to you gentlemen from my standpoint, my viewpoint of what the probable effect, as I look upon it, this circular might have upon the mind and the action of the precinct inspector who might receive it a day or two before election. We will suppose this particular inspector to be a man who is respected and honored in his community, as they generally are. We will suppose he is married, the head of a family, with a wife and a son and a daughter, and a little golden-haired baby. He goes to the postoffice a day or two before election, and he gets this circular and this letter in an envelope addressed to him, and he opens the envelope and he reads the circular and the letter. He sees the warning threat contained there, and at first, perhaps, it does not impress him greatly. He will say to himself, perhaps, ' ' I will disregard this ; it is only an idle threat, and I will go home, and then I will go from there to the polling place on election day and do my duty." On his way home he thinks about it and decides he will talk it over with his wife, as the circular tells him to do. He shows it to his wife and she reads it, and of course, being of a more impressionable nature than her husband, she is frightened at it, especially when she sees that the letter tells him about the cases of two men who were convicted under a law like that and under conditions like those just a short time before and were given sentences in the Federal prison. His wife becomes seized with great terror. She begins to implore her husband, in the name of himself and his family and his little children, to respect the warnings contained in the circular and in the letter. He begins to reflect upon it more seriously, of course, because he sees that the letter tells the truth in regard to the men who were convicted, and gives him a serious warning. He respects himself, and he loves his family. He is honored in his community, and he wants to maintain that respect, and he wants to maintain the love of his family, and above all he wants to protect and nourish and comfort that family with an untarnished name. The result was that some of those men resigned from their positions in their respective precincts. A great many of them did not resign; a vast majority of them did not resign. That man goes to bed after receiving that circular the night before election, and he thinks it over before he goes to sleep. Gentlemen, I can imagine that if that man is an intelligent man, and all of them are, and the kind of man I have told you about, that in a great many instances there would grow up a conflict in that man's breast over that matter during the entire night. 150 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. The Chairman. Mr. Carney, I do not think there is any doubt in the minds of the members of the committee but that that circular was contemptible, and that it did have a tendency, more than a tendency, to intimidate the persons to whom it had been sent. The thing that is bothering us is to connect the contestee with it in some way. Mr. Carney. Yes, sir. Now, on that question, gentlemen, of course Mr. Morgan has gone upon the witness stand and sworn that he had nothing to do with it. The Chairman. I want you to show us if that statement of Mr. Morgan's is incorrect, and even if it is correct — suppose he did not know anything about it, as I have every reason to believe that Mr. Morgan is speaking the truth — assuming that he did not know any- thing about it, is he chargeable with it ? Mr. Carney. Mr. Morgan says he knew nothing about it. Mr. Chairman. It is up to you to show us that he must have known something about it, or else, if he did not know anything about it, that he is, notwithstanding that fact, chargeable with whatever effect that circular created. Mr. Carney. Of course, Mr. Chairman, we have no direct testi- mony to show that Mr. Morgan sent this circular. We have no testimony to show that his campaign manager of two years before, Mr. Boardman, sent out the circular. We have no direct testimony to show that the circular was sent out from his headquarters at Oklahoma City, although it appears in the record of Mr. Davis's case that this warning circular was printed in Oklahoma City, and at one of the printing offices in that town. The testimony contained in the record printed Mr. Oglesby. At which office was that ? Mr. Carney. The Times-Journal office. Mr. Oglesby. My recollection is that in reading over the testimony that the representative of that office swore it was not printed there. Mr. Carney. No; he swore it was printed there. Mr. Oglesby. I think there were two or three people who denied that; I think they all denied it. Mr. Carney. I was about to go further in describing the influence that that circular and letter might have had upon the mind of that precinct election official. When he went to the polls on election day, if he did not resign from his position and a new man had to be ap- pointed, what kind of feelings must he have had with reference to the obligations resting upon him in regard to the enforcement of that law ? Do you think he was in a position to act freely of his own volition with that kind of a feeling in his bosom and in his brain concerning his position in society and his position with respect to his wife and his children? Do you not believe, gentlemen, that it is more than probable that when he went to the election place that day he went there after making a promise to his wife, and expecting to obey it, that he would do nothing which would get him into trouble, and that he would not enforce this law according to the spirit of the law ? It is true that they all swore that this circular did affect their minds. Some of them swore that they enforced the law. But what kind of an enforcement do you think they made of that law? Do you think for a moment that any married man, especially a man with a wife and children, with that kind of a warning circular, telling him CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 151 of the conviction of two men a year before, with that kind of a circular hanging up before his face as he went all the day through, was going to enforce that law in the spirit in which it was intended to be en- forced by the lawmakers of the State of Oklahoma and every other southern State where such a law exists ? To be sure, he would not. To be sure, if any negro came there and wanted to vote and insisted upon it, he would let him vote, unless the negro, perchance, was totally illiterate. The Chairman. Now, I believe with you, Mr. Carney, that that circular would and did have a tendency to make those men very cautious, to say the least, in enforcing that law, even though it did not scare them, although it probably frightened many of them. It is your contention that this effect upon their minds was such that it caused the election of Mr. Morgan? In other words, did it let in enough negro votes to cause the election of Mr. Morgan ? That is what you have to show. Mr. Carney. I want to say to you, Mr. Chairman and gentlemen of this committee, that if the newspapers of that State had remained silent upon this question and these warning circulars had not been sent out to the election officials a day or two before the election Mr. Morgan would not have been elected. The Chairman. That is something we want to know. Mr. Taylor. Is there anything in the record shat shows that ? I would like to have the reference to that if you can find it and give it to us. Mr. Carney. There is nothing, only by inference, gentlemen. Mr. Bowdle. To compress within its narrowest limits the propo- sition which you and your counsel have advanced, it would seem to be something like this, that the State is more interested in an honest election than it is in the innocent victor at the election. In other words, the victor at the election may be honest and innocent and the election at the same time may have been a dishonest one ? Mr. Carney. That is true. Mr. Bowdle. That, as I see it, is the proposition for which you are standing. Mr. Carney. Now, gentlemen, there is no use in trying to conceal the elemental truth contained in this law; I mean the grandfather clause. It was intended to keep the great majority of the negroes of the South from voting. It is true that in Wagoner County, in the case which Mr. Morgan cited, the officers went too far. They ex- cluded men from voting there who had the right to vote, and I want to say to you, gentlemen, and I say it not as a partisan, not as a par- tisan Democrat, not as a man who hates the negroes, because I do" not hate them, but as a man who believes that the purity of our Government and the perpetuity of our institutions is preserved only by intelligent voting, that a strict enforcement of this law should be carried on in every State in the Union where it exists. The law provides that they shall read a section of the constitution and write it, if necessary — that is, the constitution of the State. There are different ways of reading, gentlemen. Some people might read that constitution if they were given time enough to do it, who would read absolutely without making any sense out of it or putting any sense into it. Some people might write it in a way. 152 CONTESTED ELECTION CASE OP CABNEY VS. MORGAN. The question is if a man reads and writes it intelligently and knowingly, then he is entitled to vote. If he does not read and write it intelligently, then he is not entitled to vote. Now, with reference to the question asked a while ago, I want to say this : This question has been discussed so much that I hardly think it proper at this time to go into it at length. The brief of the contestant, myself, dis- cussed that question. You will find on page 43 of the brief a very intelligent and somewhat lengthy discussion of the question of the effect of intimidation upon an election. On page 43 it says: It is not necessary that the persons who are guilty of violence or intimidation should be connected with the candidate; but if there is such violence that the voters can not safely deposit their votes, the election should be set aside, regardless of the relation of the persons by whom it was committed. Mr. Rogers. Just a moment there. Did not the counsel for the contestee admit the soundness of that principle yesterday, and seek to distinguish this case, because here there was no exclusion of votes improperly, but illegally and potentially an inclusion of votes improperly ? Mr. Carney. He undertook to distinguish it. Mr. Rogers. You do not agree with the soundness of that dis- tinction ? Mr. Carney. No, sir; I do not think that conclusion is deduced from the law. Then, on the next following page of my brief, there is given the text of the minority rule laid down in a case which was tried in the Forty- ninth Congress. It says: WHEEE INTIMIDATION SHOWN, BURDEN ON OTHER PARTY TO SHOW RESULTS NOT AFFECTED. Where intimidation is practiced over men sufficient in number to affect the results the burden of proof is devolved upon him in whose interest the intimidation is done to show that the intimidation did not affect the result. If this proof be not made the intimidation is so interwoven with the vote that it is impossible to separate with reasonable certainty the good from the bad vote, and the whole precinct must be rejected. That was in the minority report of the case of Hurd v. Romeis, in the Forty-ninth Congress. In the case of Small v. Tillman, in the Forty-seventh Congress, the question of violence arose, and the committee held as follows : Where violence was prevalent throughout a county, the canvass and count of the vote involved in inextricable confusion and fraud, and the record illegally suppressed , the returns from the county were thrown out. Now, gentlemen, these decisions, it would seem plain enough, would hold that where it can be shown that intimidation was practiced upon the election officials, or intimidation of any kind, that the effect of such intimidation is to throw out the ballot boxes where the intimi- dation was practiced. Mr. Morgan, in the course of the discussion of this case, read from a newspaper report, from a printed report in the Oklahoman, certain extracts concerning the case in Blaine County, and tried to leave the impression upon this committee that the acts of election officials in that county in disposing of certain precincts was entirely without warrant and entirely unjustified, and that therefore these votes should be counted in his behalf. CONTESTED ELECTION CASE OF CAENEY VS. MORGAN. 153 I want to call your attertion to page 144 of the printed record in this case, where it is shown by the chairman of the Democratic cen- tral committee in that county, who was called as a witness in this case, that in that county the intimidation probably was more exten- sively prevalent, on account of this circular, than in almost any other county in the district where the intimidation was practiced. He says on page 144 of the record that several of the precinct election officials resigned rather than incur the displeasure of the district attorney by probably trying to enforce the law. He says there were others there who discussed the question with him and tried to resign, or wanted to resign, but who did not, at his suggestion. So, gentlemen, it is plain from this record, plain from all the testimony in this case, that this intimidation, this warning circular, had its effect throughout the entire district. There was no part of the district where a negro would probably vote into which this cir- cular was not sent, and where its influence was not felt upon the election officials. Now, it has been said, and your chairman said a while ago, that you agreed with me that the sending out of this warning circular and this letter was an act of pernicious activity on the part of the United States district attorney who sent it out. I might go outside of the record, gentlemen, again, in answer to a statement made by Mr. Morgan in the concluding part of his argument. And that was with reference to the uniform fairness with which he had acted in the conduct of this election. I do not accuse him individually of ever having misstated me in that con- test between him and me in that election. He did not, that I know of. But I want to say to you gentlemen that the sending out of this circular was the culmination of one of the most dastardly and dirty campaigns that was ever carried on against any man in any election for a seat in Congress, anywhere in the Unit eel States, and I do not now accuse Mr. Morgan of having caused that dastardly campaign that was carried on. But it redounded unquestionably to his benefit. He submitted testimony here and tried to show that I did not get the full vote of my party in that district. Mr. Bowdle. May I interrupt you right there to ask you just one question ? Mr. Carney. Certainly. Mr. Bowdle. At what point of time during the campaign did you become aware that this literature had been sent out ? Mr. Carney. Not until the evening before or the day of the election. As you gentlemen may know, there were two districts in Oklahoma which are supposed to be Republican, and the rest of the State was known to be overwhelmingly Democratic. No effort was made on the part of the campaign committees particularly to defeat any particular member of the State ticket, but the fight to win was centered against me and my friend Mr. Davis, who is a contestant in another case here. All the methods of vituperation, calumny, abuse, and ridicule that an ingenious campaign manager could think of were resorted to in that district to try to encompass my defeat. It may seem ridiculous to you gentlemen to mention it, but the most potent instrument, the most powerful means that can be resorted to, generally, in a campaign of any kind is to try to ridicule a man who is running for office, and that was done in this district unremit- 154 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. tingly and intermittently and continuously until the campaign was over. The Chairman. You are not objecting to a man ridiculing another man in a campaign ? Mr. Carney. I am only answering now Mr. Morgan's statement that he conducted an honest campaign and tried to leave the impres- sion with this committee that nothing of wrong was done except the sending out of these circulars. But I say to you gentlemen that that was the culmination of all these base calumnies of the whole dirty business. Mr. Taylor. You started to refer awhile ago to Mr. Morgan's statement that you did not receive the full Democratic vote of the district. Then you passed on to something else. Do you care to say anything further in regard to that matter. Mr. Stafford. Mr. Morgan made the statement that you did not receive the full strength of your party. Mr. Carney. I think I did receive the full strength of my party's vote, but I would have received more than that if it had not been for the methods resorted to. It is true, gentlemen, that Mr. Morgan referred to this, and I thought I had a right to answer him in the manner I have done. As I said awhile ago, this was done continuously. I will say further, gentlemen, in defense of myself here and in defense of the apparent insinuation that Mr. Morgan casts upon me by saying that I did not get my party vote, that when I became a candidate for the nomination for Congress I was a delegate to the Democratic national convention at Baltimore, having been chosen for that office by the people in Oklahoma. The night I left Oklahoma City to go to Baltimore I was per- suaded by one of my friends to sign an application for a position on the ticket as a candidate, and reluctantly I did so. I went to the convention, which concluded, as I recollect, on the third day of July. I left the convention and went back home to visit my mother in the State of West Virginia, and I stayed there several days and reached Oklahoma City on my return on the 15th of July. On the 17th of July I began a campaign for the nomination for Congress, and I received that nomination on the 4th day of August following. Previous to that time there had been several other candidates for the office. One of the men who was a candidate had been campaign- ing for the nomination for six months. I secured the nomination in opposition to all the other candidates, and I will say to you gentle- men of the committee that when I accomplished that it produced a certain degree of coldness on the part of every candidate who was against me, except one. One of them perhaps became more than cold. This may account, in some degree, for Mr. Morgan's insinua- tion that I did not carry my full party vote, although Mr. Morgan knows that the largest claim he makes for a majority in his district does not equal the majority he gained two years before in the elec- tion nor the majority he gained four years before in the election. Mr. Oglesby. In this case of Hurd v. Romeis, from which you cited the minority report, it says that — Where intimidation is practiced over men sufficient in number to affect the result the burden of proof is devolved upon him in whose interest the intimidation is done to show that the intimidation did not affect the result. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. *155 Do you contend he should be required to analyze the evidence and separate the pure votes from the bad votes in precincts other than those specifically charged by you as being affected ? Mr. Carney. No, sir. Mr. Oglesby. But if the votes in those precincts were thrown out he would still have a majority. Mr. Carney. That is not true, if you will take the trouble to count. Mr. Oglesby. The tabulation in his brief seems to sustain that proposition; from his figures, if they are a correct tabulation of the testimony, that seems to be sustained. Mr. Carney. I do not think so. Mr. Oglesby. I think so. Mr. Carney. My attorney counted them and showed me the tabulation, and that is not my recollection of it. Mr. Oglesby. I do not mean to say that the tabulation of the figures in the record shows it, but I mean from the tabulation which Mr. Morgan's brief makes it seems to sustain that contention. Mr. Rogers. May I ask you one question right there? Mr. Carney. Yes, sir. Mr. Rogers. I spoke to you the other day after the hearing had adjourned with reference to the. method of conducting the voting under the Oklahoma law, as to whether or not the ballot used was the secret ballot, sometimes called the Australian ballot; whether that was in general use there, under the law, the Constitution, or the statutes ? Mr. Carney. It is. It is the method of voting which has been in use ever since the organization of the Territorial form of government there, long before we had a State government. Mr. Stafford. Have you any knowledge of what is done with the challenged vote, after a man qualified and submits the necessary affidavits as prescribed by the statute ? Mr. Carney. If it is done according to the methods prescribed by law, those ballots are preserved in a separate bundle and sent to the county election board. Mr. Stafford. After that, what is done with them ? Mr. Carney. They are preserved by them. Mr. Stafford. In case of a contest or dispute ? Mr. Carney. Yes, sir. Mr. McGuire. They must be kept for 90 days, and may be kept for a year. Mr. Stafford. The theory of the statute being that they are the contested vote and that they should be preserved in case of a contest ? Mr. Carney. Yes, sir. I think, gentlemen, that a great majority of the cases that have been cited, the leading cases, at least, in the brief, have already been read to you. They will be found, I think, beginning on page 43, and following that there are a number of them, showing the views taken by the contestant upon the question of the effect of the intimidation due to the warning circular and the letter, the effect upon the vote in the various precincts. I do not wish to go over those authorities again. I think the conclusion to be deduced from these is unquestionably that in every precinct where it can be shown that intimidation was exercised on those election officials, that this intimidation existed, that in eveiy case of that kind that voting precinct ought to be disregarded in the count of the votes in this election. 156. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. Mr. Russell. Have you any estimate of the probable number of negroes who voted in that election? Mr. Carney. That is set out Mr. Russell (interposing). It is placed at 1,700, is it not ? Mr. Carney. I think it is placed at 1,740. Mr. Russell. Do you think that is correct ? Mr. Carney. Yes, sir; that is approximately correct. Mr. Russell. What is your judgment about the number of those that could not have voted if the law had been enforced ? Have you any estimate of that? Mr. Carney. I think that very few of them could have voted. Mr. Stafford. What do you base that position on? They were registered and had certificates of registration, at least a good many of them had certificates that were registered ? Mr. Carney. Yes, sir. Mr. Stafford. The statute makes that presumptive evidence ? Mr. Carney. I do not think it does, under the prepsent law. The law that was read to you by Mr. Giddings is found on page 232 of the Session Laws of Oklahoma, 1910-11. That makes it the duty of the inspector to challenge the right of any person to vote — and if a person be challenged on the ground that he is not able to read and write a section of the constitution, and was not a legal voter under any form of government on January 1, 1866, or one whose ancestor was not a legal voter on said date, before being permitted to make the affidavit required below, he shall be required to read and write any section of the constitution. Mr. Stafford. I read that law very carefully, and in my opinion it does not bear any such construction as that which you give it. It only makes that as a condition. Mr. Carney. I think your statement is true, as far as that is con- cerned, but it repeals, it might be said, the decision of the supreme court, the decision of the supreme court and the statute upon the effect the challenging of a certificate of registration may have had upon a voter before that date. Mr. Stafford. You claim it repeals the section of the statute which says positively that the certificate of registration shall be regarded as evidence of the qualification to vote, when this section does not repeal that section at all. Mr. Carney. It doesn't repeal it, in direct terms, but by impli- cation. Mr. Stafford. That is what the statute provides. Mr. Carney. Yes, that is the statute. Mr. Stafford. Read it as strictly as you can, it only gives the election officials at the election the right to challenge Mr. Carney. That law was passed in 1907 or 1908, and it is contained in the Session Laws of 1907-8, and unquestionably if there was a presumptive right, there was no other decision of our courts, if there was a presumptive right of an elector to vote with a certificate of registration, that part of the law has been changed and repealed by this statute which I have just read, which gives the inspec- tor the right to challenge anyone upon election day. Mr. Russell. He has a right to question the vote, whether chal- lenged or not, as you contend ? Mr. Carney. Yes, sir, he has that right, unquestionably Mr. Russell (interposing). And if the vote is challenged, then it becomes mandatory upon the officers to make the test, does it not? CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. 157 Mr. Carney. Yes, sir. Mr. Stafford. No; if lie is challenged, he has to qualify by affi- davits. Mr. Carney. He is required to read the constitution Mr. Russell (interposing). My understanding is that if he is challenged it is mandatory to make the test. Mr. Carney. Yes, sir, that is right. This is what the statute says on that, Judge Russell. Mr. Russell. If not challenged, as I have understood the line of this argument, the registration certificate that he obtained would be prima facie, and if he voted, the vote would be legal, but if challenged, then it is the duty of the election officials, to apply the test. Is that not right? Mr. McGuire. That is right. Mr. Carney. The statute says : Any election inspector or challenger may challenge the right of any person to vote, and if a person be challenged on the ground that he is not able to read and write any section of the constitution, and was not a legal voter under any form of government on January 1, 1866, or one whose ancestor was not a legal voter on said date, before being permitted to make the affidavit required below, he shall be required to read and write any section of the constitution. Mr. Russell. Now, is there anything in the record that gives any approximation at all of the number of negroes who were challenged that had certificates ? Mr. Carney. No, sir, I think not. Mr. Russell. I want to ask you another question. What reason have you as a basis for an argument that those negroes voted for Mr. Morgan ? Mr. Carney. I have a good many reasons as a basis for that argu- ment. In the first place, we have in Oklahoma this grandfather clause which was passed as a Democratic measure. We have the jim crow law, which excludes the negroes from traveling with white people. We have the testimony of witness in this record, one witness at least, and others, too, that I recall, who swore that the negroes of that district were all, or practically all, Republicans, and in one pre- cinct we have the testimony of one official who swears that the negroes who voted there called for Mr. Morgan's ballot, and desired to vote for him. In that country, gentlemen, the man who would question a proposi- tion as to whether or not a negro was a Republican might have his sanity questioned by anyone who heard him make such a statement. They are all Republicans. Mr. Oglesby. They are getting more intelligent now, some of them vote the Democratic ticket. Mr. Taylor. Did you get any negro vote at all ? Mr. Carney. No, sir. If I did, I did not know it. Mr. Oglesby. If you did, some of them deceived you ? Mr. Carney. I will say that I have run for office down there several different times. I have run for county attorney and for district judge and once for delegate to the national Democratic convention, and this is the only trouble I have ever had in getting elected, notwithstanding Mr. Morgan's insinuation that I was rather an unpopular citizen in that community. Now, gentlemen, some of you gentlemen live in the South and know what the negro is. Mr. Morgan has told you that we have only 137,000 158 CONTESTED ELECTION CASE OF CARNEY VS. MORGAN. negroes in Oklahoma, but I think, taking all the negroes in, that we have probably twice that many, counting all the pure negroes and those that are of mixed blood. You gentlemen who are not familiar with conditions in the south- ern country, I know, do not understand what is to be contended with. Did you ever think of the fact, my friends, that in permitting the negro to vote in a State where they are in such numbers as they are in Oklahoma and in other Southern States, that a great wrong might be done to the State and to the community ? In Oklahoma, my friends, we have a peculiar condition. Some of you men will not agree with me as to what we have done. In the making of our constitution we provided for a kind of a Democratic and Republican State — I do not mean in a partisan sense, but in a political sense. We gave the people the right to exercise the initiative m making our laws, and we gave the right of referendum in passing on the laws, and the right of the recall, in a restricted sense in this, that in the cities of the first class, where they might have charter government, the voters nrny recall, by a direct vote, any of the elec- tive officials in that city. So, you will see in the new State of Oklahoma, whether you agree with me upon what we have done or not, we have lodged in the voter a greater power than that which is lodged in the voters of almost any other State in this Union. The negro, therefore, has his enfranchisement insured. I partici- pated in the making of that convention, and performed my humble share in it, and I am rather proud of what I have done. I approve most of the provisions of that constitution, but did you ever think of the fact Mr. Stafford. Was the grandfather clause submitted for con- sideration in the constitutional convention ? Mr. Carney. It was discussed, but I do not believe it was ever voted upon, for the reason that we had a Republican President at that time, and we did not think it would pass muster if it went before him for his approval. He had to approve the enabling act, and we did not believe he would approve a provision of that kind. Now, gentlemen, as I tell you, I am no enemy of the negro. I am his friend, as I want to be the friend of every human being. But did you ever thi^k of the fact, gentlemen, that in all ages, since time began, the white man is the only man who has ever made any material progress in the world, or, rather, putting it in another way, that the negro has made none? You never heard, gentlemen, of a negro writing an Odyssey, or an Iliad, or aniEneid. And you never heard of a negro writing a Hamlet or a Paradise Lost. Mr. Taylor. I do not suppose you ever heard of his inventing anything? Mr. Carney. You never heard of a negro ever inventing a steam- ship, or ever doing anything in science or art, or producing a great painting or a great piece of sculpture; you never heard of any great negro in war; you never heard of a negro Napoleon or a negro Caesar, or a negro Hannibal during all the thousands of years of history marshaling the negroes of his country in offense or defense. Mr. Taylor. I am told he is not even on the records of the Patent Office. CONTESTED ELECTION CASE OF CARNEY VS. MORGAN". 159 Mr. Carney. You never heard of any negro reformer in religion; you never heard of a negro ever accomplishing anything in govern- ment. Mr. Bowdle. One of the greatest military commanders in history was Toussaint L'Cuverture. Mr. Carney. He was the only negro in all history of the race who ever achieved military distinction. They have never achieved any great distinction in anything. The most difficult problem that humanity ever had to deal with, that of maintaining and perpetuating a republican form of govern- ment, can not be done by men who have never accomplished any- thing in the world of science or art or of literature, or in any line in which the human intellect is required to exercise its knowledge. I am perfectly willing that a negro who shows himself intelligent enough to vote should be allowed to vote. But God being my judge, gentlemen, here before you with all the emphasis and all the earnestness I am capable of showing and express- ing, I do not think that a race of people who have made a failure for all time and in all ages should be enfranchised in this country and be given the right to vote, and especially in a country where we have conferred upon them an almost unlimited suffrage; therefore, I say, gentlemen, that it is utterly wrong, utterly a usurpation of authority and power, utterly against the polity and the policy of our party and our people in Oklahoma and contrary to our sense of right and justice, and wrong to the negro himself. We have only to look across the border of our country and to-day, my friends, we can almost hear the clash of the cymbals and the roar of the cannon. Why? Because an ignorant electorate in that country, an ignorant people, were found incapable of governing themselves. Mr. Taylor. Somebody has handed us a table in reference to Oklahoma County showing that the county attorney and the sheriff received 560 more votes than were polled in the congressional race. What do you say about that ? Mr. Carney. I do not know where those statistics were obtained. I think Mr. Michener submitted that table. Mr. Stafford. It states that they were published in the Daily Oklahoman on November 21, 1912. Mr. Carney. Mr. Giddings submitted statistics showing that in the race for Congress there were more votes cast in the district for Congressman than there were cast for Senator. Mr. Stafford. He merely stated that, and it was controverted by Mr. Michener. Mr. Carney. I do not think that he did submit those figures showing the vote of Oklahoma County. Mr. Stafford. Do you mean to claim that Mr. Giddings submitted any figures showing that ? Mr. Carney. No; he did not submit any figures. You have not submitted any figures that I would be willing to submit as correct. Mr. Taylor. I do not know who submitted that table. Mr. Carney. Now, Mr. Chairman, my time is about expired. I want to conclude by again thanking you for the courtesy and con- sideration and interest you have taken in your deliberations in regard to this case. 160 CONTESTED ELECTION CASE OP CARNEY VS. MORGAN. I, of course, would naturally like to win this contest, and come here to help make the laws of this country. It has been my ambition ever since I was a young man and first came to this building 20 years ago. However, gentlemen, I will say this, that if in the turn of the wheel of fortune, I should be deprived of the privilege of appearing here, I shall always think I have had a fair hearing before you, and not feel any resentment whatever against the members of this com- mittee. I thank you, gentlemen. The Chairman. As I understand it, that closes the case of Carney v. Morgan. Mr. Carney. Mr. Giddings, before he left, said that there were some figures he was going to procure and which he would submit to the committee. The Chairman. If you desire to submit them, I think you can easily get the unanimous consent of the committee to submit the figures to which you refer. Mr. Carney. I will 'say this much further, that if we can do so, we would like to have the testimony taken with reference to the votes in Texas County. The Chairman. Do you mean to have us go out there and take the testimony? Mr. Carney. No, simply to grant me permission to do so. The Chairman. But the case may be decided before your testi- mony is taken. Mr. Morgan. I would object to that. Mr. Carney. I expected to make application to the committee for permission to go out and take that testimony. The Chairman. You have argued this case, both sides have argued the case, and if you go out now and get new testimony we would have to reopen the argument, because it might bring other facts into the case. Mr. Carney. There would not be much in that testimony that would contradict anything here. The grandfather clause did not appear in that county. It was simply a squabble there between officers and the candidate for the legislature. It was a matter entirely independent of this contest, but it resulted in throwing out a certain number of votes for everybody, and it so happened that the majority of the votes were for me. The Chairman. Have you gentlemen finished arguing your case ? Mr. Carney. That closes my case, with the exception of the matter which I have just mentioned. With that exception, I have finished. The Chairman. I do not think that the committee can let you put any new evidence in now, inasmuch as the arguments have been concluded. How many votes do you claim were lost to you there ? Mr. Carney. The petition says 156. The Chairman. What do you claim? Mr. Carney. About 156. Mr. Morgan knows the conditions which existed out there. Mr. Morgan. I do not know anything about what Mr. Carney claims there in regard to the votes which he alleged were thrown out there. I do not know anything about it, except what I have read in the newspapers. (Thereupon, at 12 o'clock noon, the committee adjourned.) o LB 014