My op-ed in the Dallas Morning News about the idea of "court packing"

 https://epaper.dallasnews.com/app/DALNEW/editionguid/68bf8dcd-5a6e-4207-bb15-a386cbdd6680






I celebrate the Life of David B. Gracy (1941-2020), Archivist Extraordinaire

Sad news of David Gracy's death on September 26th. David was an archivist in practice, a professor of library science and archives at UT Austin, and Ph.D. in history who authored several books including his last one, a biography of George W. Littlefield published just last November, A Man Absolutely Sure of Himself: Texan George Washington Littlefield. When I saw him in Austin last fall, David hinted that his health was not good, but he and I were planning to have lunch when I was going to be in Austin early in 2020 (this was before the onset of the plague of virus). I was not expecting his death.

I first met David back in 1982 or 1983 when the "History Committee" of the State Bar of Texas (of which I was the junior lawyer-member by at least 35 years) was talking about creating an archive for bar-organization and professional history. David was the consultant (working gratis) for the project. 

Today the State Bar Archive exists in the basement of the bar's headquarters, the Texas Law Center in Austin, but not a lot has been added to it since those days when David was involved. [What happened was that David suggested that the archive materials should include some meaningful files of lawyers, which suggestion triggered two thoughts in the mind of the bar's bureaucracy: (a) "Uh-oh!" Lawyers will be backing up semi-trailer loads of old client files and dumping them on the dock of the Texas Law Center; and (b) what if the obligation of client confidentiality extends infinitely into time? (I do not think so.)] As a result, the archive of the State Bar of Texas is today far less than it might have been, with limited utility for scholars and serious-minded lawyers, but it does exist because of David's good urging. 

Rest in peace, my friend, David Gracy.

Obituary of David Bergen Gracy II

Historic Election Disputes…and a Better Way to Resolve Them

[This is the second topic on which I spoke to the Downtown Kiwanis Club of my hometown Pampa, Texas, when I was there to attend my high school class's fiftieth reunion the last weekend of June 2019. The first part of my presentation, which I posted on my blog on July 2, 2019, was a short reminiscence of my years 1966-1969 as a member and then the President of the Pampa High School's Key Club. The second part, which follows here, was about the very serious topic of the way by which, historically, the most significant election disputes within living memories (LBJ v. Coke Stevenson and Bush v. Gore) were resolved—i.e., by lawyering—and also about the current proposal of the American Law Institute for a much, much better way to resolve ballot disputes.] 

Historic Election Disputes…and a Better Way to Resolve Them 
by Josiah M. Daniel, III 
(revised from remarks delivered to the Downtown Kiwanis Club of Pampa, Texas, June 27, 2019) 

I wish to cover three things: first, the litigated ending of the Texas Democratic Senatorial Primary Runoff Election of 1948, known as Lyndon B. Johnson v. Coke Stevenson, that took place over three weeks at the end of the summer that year; second, the litigated conclusion of the Presidential Election of November 7, 2000, which is well known as Bush v. Gore, the disputed-election litigation that took place over 46 days in November and December that year; and, third, the proposal by the American Law Institute of model procedures and principles for accurate and prompt determination of ballot disputes in the future (if and after the proposal has been adopted by the states as a part of their laws and election rules). 

Here we go: 

1. LBJ v. Coke Stevenson, Sept. 10, 1948 to Sept. 28, 1948 

This story of this “stolen” election was alluded to often but first written about in detail and with authority by Robert Caro, the author of the multi-volume biography Years of Lyndon B. Johnson (now into four, and ultimately to be in five, volumes). In 1990, he published volume 2, subtitled Means of Ascent. And in that volume’s Chapter 13, with its ominous title, “The Stealing,” Caro devoted 87 pages to specifying how LBJ won this Democratic Party senatorial primary runoff election against his opponent, former Governor Coke Stevenson, by a margin of only 87 votes out of a million cast, due to what today appears clearly as election fraud in at least one of the Rio Grande Valley counties of Texas. 

I devoured Caro’s book after it came out; but, as a lawyer, I could not help noticing that the author, a journalist originally and a biographer by experience, did not really understand the topic that he specifically attempted to address in the following Chapter 14, which he titled “Lists of Names”: the litigation, in multiple legal cases, in both state and federal courts, that accompanied the challenge of Stevenson to LBJ’s 87-vote margin of victory in that election. 

So I began researching for myself the candidates’ battle in the courts over three weeks in September 1948. I was practicing law for clients, so it took a long time, more than 15 years; but finally I wrote and then published an article detailing this litigation that concluded with a Supreme Court stay in favor of the winner, LBJ. [My article is: Josiah M. Daniel, III, “LBJ v. Coke Stevenson: Lawyering for Control of the Disputed Texas Democratic Senatorial Primary Runoff Election of 1948,” 31 Review of Litigation 1 (2012)]. 

My contribution to the literature is that I told the story from the perspective of the lawyers for both sides, the troops who fought the battles, hour by hour, and day by day, in court proceedings, over a mere three weeks. That perspective I have denominated “historical lawyering.” 

Now what is lawyering? Everyone "knows what it is," but when I looked for a good definition of it for my article, the best I found was from the Dictionary of Modern Legal Usage edited by Bryan Garner: lawyering is “what they [lawyers] do.” But what exactly is it that lawyers “do”? 

So I created my own definition and published it: 

“Lawyering” is the work of a specially skilled, knowledgeable, or experienced person who, serving by mutual agreement as another person's [a client’s] agent [lawyer], invokes and manipulates, or advises about, the dispute-resolving or transaction-effectuating processes of the legal system for the purpose of solving a problem or causing a desired change in, or preserving, the status quo for his or her principal [ the client]. 
 Josiah M. Daniel, III, “A Proposed Definition of the Term ‘Lawyering’,” 101 Law Library J. 207 (2009). 

That definition is, admittedly, a bit “lawyerly,” so, in short, we may say that “lawyering” is the work of the lawyer to figure out a way to get the desired result for the client. Happily, Black’s Law Dictionary substantially adopted my definition in its 10th Edition in 2015. 

With that accomplished, I had the framework upon which to build my interpretation of the fruits of my archival research: the court papers and hearing transcripts that I found in historical archives ranging from the Travis County District Clerk’s office, to the Texas State Archives in Austin, and to the National Archives both at the main location in Washington, DC, and at its Southwest Branch in Fort Worth. My resulting article was published by the Review of Litigation at the University of Texas Law School in 2012. 

A chronology or timeline is essential to understand LBJ v. Coke Stevenson. The key dates preceding the onset of litigation are: 
• Sat., July 24, 1948 - Democratic Party Senatorial Primary Election 
• Sat., Aug. 28 - 8:00a.m. to 5:00pm - Runoff Election after 5:00pm – “Election Night” 
• Fri., Sept. 3 - the last voting report arrived in Austin, six days late 

Stevenson and Johnson had finished first and second in the original primary election, with the former leading by 70,000 votes. Stevenson did not campaign in either the primary or the runoff, but LBJ did so, feverishly, including for the first time ever by helicopter in East Texas. On Election Night, the informal “Texas Election Bureau” that was the joint effort of newspapers and radio stations reported Stevenson to be in the lead by a few hundred votes, and over the next five days that lead dwindled but maintained as additional vote tallies came in. But on the sixth day, September 3, the last 202 votes arrived from Jim Wells County, Precinct 13, with 201 for Johnson and one for Stevenson, giving LBJ an 87 vote margin of victory. 

• Mon.-Fri., Sept. 6-10 

Stevenson sensed fraud, so he sent two teams of lawyers to the Valley. In Jim Wells County, Stevenson, his friend the legendary Texas Ranger Frank Hamer, and others of his legal team gathered evidence during the week following those last votes reported to Austin. Finding many instances of vote fraud, Stevenson asked the County Democratic Committee to meet on Saturday, September 11, for the purpose of changing the tally. 

 ¬ Johnson's Lawyers File Suit in the State Court System and Gain Initial Control

¥ Friday, September 10, 9:50pm 

Well after normal hours, on a Friday night in Austin, LBJ’s lawyers presented to a state court judge a request for a temporary restraining order against Stevenson and the Jim Wells County Democratic Committee to prevent a recounting of the votes. It set a hearing for Monday morning—in Alice, Texas, county seat of Jim Wells County, more than 200 miles away. The judge granted the TRO. Apparently Johnson’s lawyers then drove the lawsuit’s papers, including that order, to Alice, county seat of Jim Wells County, during the weekend. 

¥ Mon, September 13, 10:00 A.M. to 3:00 P.M 

The State Democratic Convention commenced at mid-morning in Fort Worth with one task being to certify the results of the votes from all the counties on all the statewide races, including the U.S. senatorial primary; and at the same time, the District Judge in Alice held a temporary injunction hearing in the lawsuit LBJ had filed late Friday night in Austin. The judge dismissed Stevenson but continued to restrain the Jim Wells Democratic Party Committee from re-counting ballots. 

¥ September 13, 7:00 P.M. to Midnight

For many hours, a political battle royale raged in the state party convention in Fort Worth—but at midnight LBJ won the vote to certify his nomination by only a single vote. Johnson was in control. 

¬ Stevenson's Lawyers Move the Post-Election Dispute to the Federal Court System and Take Control 

¥ Tuesday and Wednesday, September 14 and 15 Stevenson had assembled a legal team of some of the premier lawyers of Texas as soon as the Precinct 13 vote tally became publicly known. They gathered to work in Fort Worth and prepared Stevenson’s lawsuit through the day on Tuesday, September 14. One lawyer then drove through the night to Caddo Lake in far East Texas, where the Fort Worth federal judge was vacationing at a cabin, and he knocked on the door on Wednesday at 6:00 a.m. The Judge, T. Whitfield Davidson, received the papers and, on the breakfast table, signed a TRO in favor of Stevenson to prevent the State Democratic Party from certifying LBJ as the winner to the Texas Secretary of State. Stevenson had taken control. 

¥ Thursday, September 16 

LBJ recruited a team of exceptionally talented Texas lawyers to assert his position. The next day, LBJ’s lawyers went into the state court system at its highest level, to the Texas Supreme Court, seeking a writ of mandamus to instruct the Texas Secretary of State to certify Johnson as winner. Stevenson’s lawyers were not even present, but the Court denied LBJ’s request. Stevenson remains in control. 

¥ Tuesday and Wednesday, September 21 and 22 

Back in Fort Worth, Judge Davidson began a hearing on Stevenson’s lawyers’ request for a preliminary injunction to continue the TRO against LBJ and the Texas Secretary of State. On the second day, Stevenson’s counsel presented the testimony, written and oral, of 13 witnesses, all testifying to vote fraud (for example, certain individual voters denied voting in this election). LBJ’s lawyers presented no evidence. The Judge granted the requested injunction in favor of Stevenson. And he appointed two “Special Masters” to go to Alice to recount the disputed votes. LBJ filed his notice of appeal that evening. Stevenson remains in control. 

¥ Friday, September 24

When he lost in the Fort Worth trial court, LBJ lost confidence in his very large group of Texas lawyers, and he called in a Washington, DC lawyer, Abe Fortas, a brilliant legal strategist, who happened to be in Dallas. Fortas advised: get this matter to the Supreme Court immediately. Fortas knew that the Supreme Court justice with supervisory responsibility for the 5th Circuit Court of Appeals and the lower courts within the circuit was Justice Hugo Black, who would be sympathetic to LBJ. But in federal practice, the appellate ladder runs first from district court to the court of appeals, and then from there to the Supreme Court. So per Fortas’s advice, LBJ’s team filed a weak motion requesting a stay in the 5th Circuit Court of Appeals in New Orleans, expecting to lose this stage. LBJ’s counsel obtained an immediate hearing with the Chief Judge of the Fifth Circuit, Joseph C. Hutcheson, who happened to be in Houston. After a hearing and then hours and hours of deliberation, Judge Hutcheson issued an order denying the request for the technical reason that he lacked the power to act because his court was presently in between its official sessions. Stevenson remains in control. 

¬ LBJ's Lawyers End the Matter with a Supreme Court Justice's Stay 

¥ Monday, September 27 

On Monday in Washington, Fortas’s partner Paul Porter filed in the Supreme Court LBJ’s motion for a stay; he bluffed the Clerk’s assistant into filing the motion prematurely (the record of the proceedings below had not even come up from New Orleans yet). The Clerk’s office sent the motion to Justice Black at his home in Arlington, Virginia, and he agreed to hear it on one day’s notice. 

¥ Tuesday, September 28 

After a hearing in Justice Black’s chambers (all the lawyers had quickly traveled to Washington by train) on Tuesday afternoon, Justice Black entered an order staying all vote recounting pending the outcome of the appeal to the full Supreme Court. 

¬ Hugo Black’s stay: 

At that moment in the state courthouse in Alice, Texas, the two Special Masters appointed by Judge Davidson were trying to open the locked Ballot Box 13. They had called for a locksmith. But LBJ’s lawyers telephoned from the Supreme Court building to inform everyone that the nation’s highest court had ordered a stop to the recounting of the votes. 

¬ And the victor’s prize: 

Within two years, LBJ became the Majority Leader of the Senate, in 1960 he was elected as Vice President of the United States, and after the assassination of President John F. Kennedy in 1963 Johnson served the balance of his term and was reelected and served until 1969 as the President of the United States. 

2. Bush and Gore Nov. 7, 2000-Dec. 12, 2000 

Half a century later, in the Presidential Election of 2000, Al Gore challenged the election results claimed by George Bush in Florida on Election Night of November 7. Many of us lived through that period, running from Election Day for 35 days. The issues about those disputed ballots ranged from “dimpled” or “hanging chads” to “the butterfly ballot,” to “absentee ballots,” to “undervotes” and “overvotes.” Teams of lawyers for each candidate fought it out in the state courts of Florida and in the federal courts of Florida, after the Florida Secretary of State certified Bush as winner by 537 votes out of six million cast. 

Both sides engaged exceptionally able counsel: Gore called on Warren Christopher and David Boies of New York, and Bush engaged James A. Baker of Houston; and each led large teams of lawyers working around the clock. Bush’s counsel outlawyered Gore’s. First, they hired a large Florida law firm and they disqualified most of the rest. So Gore’s legal teams had to scramble to associate Florida lawyers and to rent storefronts and office equipment, which slowed them down. Second, all of the statewide officials with authority over elections were Republicans, and they opened up their offices to Bush’s legal team and coordinated with them. Third, Gore’s lawyers chose the poorer of two available legal-challenge approaches, a “protest” of the election rather than a “contest.” Last, Bush’s lawyers made better arguments in the U.S. Supreme Court, the averment of a violation of the 14th Amendment’s Equal Protection of the Laws guarantee based on the factual assertion of divergent means and methods of counting votes in the various Florida counties. 

Historian Chuck Zelden has written the best account of Bush v. Gore. See Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (2008). 

• Timetable 
o Tues., Nov. 7 – Election Day 
o Wed., Nov. 8 – Florida Secretary of State announces a 1,784 vote margin for Bush 
o Thurs., Nov. 9 – machine recount reduced the gap to 327 
o Sat., Nov. 11 – Bush sues in federal court in Florida to stop all recounts 
o Mon., Nov. 13 – Gore sues in state court to extend recount deadlines 
o Tues., Nov. 14 – deadline for manual recounts 
o Wed., Nov. 15 – Florida Secretary of State announces she will certify Bush 
o Fri., Nov. 17 – overseas and military ballots increase the gap to 930 according to the Secretary of State o Fri., Nov. 24 – U.S. Supreme Court grants certiorari 
o Fri., Dec. 1 – Oral argument in the U.S. Supreme Court 
o Tues., Dec. 12 – U.S. Supreme Court rules for Bush, stays further recounting 
o Wed., Dec. 13 – Gore concedes 
o Mon., Dec. 18 – Electoral College certifies Bush as winner 

¬ And the victor’s prize: 

The White House. And Bush won reelection, serving eight years. 

3. A Better Way 

These and other national-profile election disputes have been wrenching for everyone. Election-law scholar Edward Foley has written the history of the preeminent disputed-election battles stretching all the way through the American republic. 

See Edward B. Foley, Ballot Battles: The History of Disputed Elections in the United States (2018), which cites my LBJ v. Stevenson article as definitive on that litigation. 

A question naturally arose after Bush v Gore: what can be done to avoid such spectacles, or debacles, in the future? One organization, the nonpartisan legal organization best situated to propose a solution here, has stepped up and undertaken to do so, the America Law Institute (the “ALI”). 

For a century the ALI has worked to rationalize the American states’ common law of torts, contract law, and other substantive areas and to make them accessible and usable in “Restatements” that both judges and lawyers routinely rely upon. The ALI has also undertaken projects of more discrete nature to formulate “principles” in certain other fields of law, including election disputes. My greatest achievement as a lawyer has been to be elected a member of the ALI in 2011. And I have happily served as a committee member, under the leadership of Professor Foley, responsible for the preparation of what the ALI calls “The Principles of Election Dispute Resolution,” which it has proposed for adoption by all states. 

I will provide just two examples of this work, sufficient to demonstrate its value. 

The first reflects the project’s emphasis on impartiality and nonpartisanship in the resolving of ballot disputes: 

¬ duty of nonpartisanship 

Of course any language prepared by lawyers and law professors is, in attempting precision, going to be somewhat wordy. But the gist is simple: all election officials have a “duty to perform all ballot-counting responsibilities without partisanship or bias.” 

¬ recount of ballots 

Here is one of the model principles for handling the recount of ballots…presuming the result is correct but that can be reversed based upon legal error or an evidentiary preponderance to the contrary (and later principles show how to make that factual determination in a fair manner): 

§ 210. The Recounting of Previously Counted Ballots 
  (a) In an election for a statewide or congressional office, if the verification of shows that the difference in vote totals between the two candidates receiving the most number of votes is less than one-quarter of one percent of all counted ballots, the chief elections officer shall supervise a recount, at the state’s expense, of all previously counted ballots in the election. 
  (b) In all elections other than those specified in subsection (a), if the verification of returns shows that the difference in vote totals between the two candidates receiving the most number of votes is less than one-half of one percent of all ballots counted, the chief elections officer of the state shall supervise a recount, at the state’s expense, of all previously counted ballots in the election. 
  (c) In any election, if the audit conducted pursuant to § 208(c) demonstrates the need to recount all the previously counted ballots in the election, the chief elections officer shall supervise the recount, at the state’s expense. 
  (d) If a recount is not required by subsection (a), (b), or (c), a candidate may request the chief elections officer to conduct a recount, at the candidate’s expense; and if the recount conducted pursuant to this Section reverses the outcome of the election and shows the requesting candidate to have received more votes, then the state shall reimburse the requesting candidate for the cost of the recount. 
  (e) In a recount pursuant to this Section, the state’s chief elections officer may deputize local election officials to conduct the preliminary phase of the recount, provided that any candidate entitled to participate in the recount has a right to challenge any decision made during the preliminary phase and the challenge shall be reviewed by a single statewide authority established pursuant to the recount procedures promulgated by the chief elections officer. 
  (f) In a recount pursuant to this Section, the candidates entitled to participate are the leading candidate and any candidate whose vote total is separated from the leading candidate’s vote total by a margin less than 10 percent of all ballots counted, or a candidate who requests a recount under subsection (d). 
  (g) All challenges made under subsection (e) shall be reviewed according to a uniform statewide standard, pursuant to which the preliminary decision may be treated as presumptively correct, but shall be reversed upon a showing by the challenging candidate that the preliminary decision either rested on legal error or was contradicted by the preponderance of available evidence. (h) A recount required by this Section may occur after an initial certification of the election as verified pursuant to § 208, provided that the chief elections officer publicly announces a new certification of the election upon completion of the recount. 

4. In Conclusion 

The existing reality is that any time an important election is really close, the candidates are going to “lawyer up” and fight in litigation to win the office. And history is telling us that lawyering matters greatly: whoever hires the best, most creative, and most effective lawyers is going to win. But there is a better way: if each state would adopt the model procedures prepared by the ALI, the legacy of bitter, litigated resolutions of disputed elections may be replaced by election results that a particular voter may not like but that will be respected by him or her as accurate and fair. 

For the long run, I am hopeful! In the short run, lawyering will continue to provide the winners in disputed elections. . . . sadly.

The work of the lawyer vs. the work of the historian

The following passage, about the tension between the work of the lawyer and the work of the historian, which I just found, resonates with me: “In October 1888, Frederic William Maitland delivered his first lecture as Downing Professor at Cambridge University. Titled ‘Why the History of English Law Is Not Written,’ his speech was intended both to explain the undeveloped state of English legal history and to summon future scholars to the fray. Certainly Maitland (1850-1906) did not doubt the significance of his special field. ‘Legal documents . . .’ he said, ‘are the best, often the only evidence that we have for social and economic history, for the history of morality, for the history of practical religion.’ Yet, such documents, including reports of cases and other proceedings, were neglected by English historians in the 1800s just as similar American documents are underused by many historians today, all despite the fact that the common law nations are remarkable for their preservation and orderly arrangement of legal records. Lawyers, to be sure, will say their work involves a good deal of ferreting through old, even ancient, books searching for the legislative history of a statute or for ruling caselaw. Maitland conceded this point, but felt such research could not yield the ‘best’ types of history because of the fundamental difference between the objectives of a lawyer and the objectives of a historian. Maitland observed, ‘[w]hat the lawyer wants is authority and the newer the better . . . .’ Then he added,’what the historian wants is evidence and the older the better.’ The lawyer, in other words, is looking for results; the historian is looking to establish the context of past events. Successful lawyers are too busy to travel the many side paths that true historical research requires.” Paul Pruitt, Root and Branch: Contexts of Legal History in Alabama and the South, 17 J. S. Legal Hist. 121 (2009).