ANDERSON v. UNITED STATES
Legal provision: 18 U.S.C. 241
Argument of David Ginsburg
Chief Justice Warren E. Burger: We will hear arguments next in the 73-346, Anderson against the United States.
Mr. Ginsburg, you may proceed when you are ready.
Mr. David Ginsburg: Mr. Chief Justice, may it please the Court.
This case is here on certiorari to the Fourth Circuit.
It arises in Logan County, West Virginia.
The charging statute is Section 241 of 18 U.S. Code, a conspiracy statute that has been before this Court many times before most recently in Guest, in Price and before that in Classic in Williams and Screws.
The central issue as we understand this case is whether an alleged conspiracy to cast fraudulent votes in the State primary election, in this particular case for the office of a County Commissioner of Logan County, West Virginia states a Federal offense under Section 241.
So far as we are aware, this question is not yet been ruled upon by this Court.
Now the Government finds in the record a much simpler case.
It contends that the indictment alleged and the evidence showed two separate conspiracy violations for casting and counting fraudulent votes.
One, for the election of State and County Officers and the other for the election of candidates for Federal Officers and the Government regards this case as ruled in effect by Saylor in Classic and Ingram and I suspect would have the writ dismissed as improvidently granted. The facts were not complicated.
The petitioners were indited on January 12, 1971.
The text of the indictment is in this white brief of our petition for certiorari to the Court.
There were five defendants, all of them were State officials.
William Anderson was Clerk of the County Court of Logan County.
John Browning, Clerk of the Circuit Court of Logan County, its intermediate State Court.
Ernest Red Hager was a Deputy Sheriff of Logan County, Bernard Smith was the West Virginia State Senator and Earl Tomblin was the Sheriff of Local County.
A paragraph six of the indictment in Appendix B states that the primary election that was held in West Virginia on May 12, 1970 for the purpose of nominating candidates for two federal officers, the United States Senate and the US Representative and I quote “various State and County offices”.
Unknown Speaker: On a single ballot?
Mr. David Ginsburg: On a single ballot, Your Honor.
In the context of the trial, the reference to the federal officers proved irrelevant but we take no exception to this aspect, this statement of fact in the indictment.
Our paragraph nine describes the alleged conspiracy.
Unknown Speaker: At what page of the Appendix?
Mr. David Ginsburg: It’s beginning I think, Your Honor, on page 1B, Appendix B and paragraph nine.
It’s in this white brief.
Unknown Speaker: Thank you.
Mr. David Ginsburg: The petition for certiorari, now looking on pages 2B and 3B.
Unknown Speaker: Thank you.
Mr. David Ginsburg: A paragraph nine describes the conspiracy from May 1, 1970 to January 12, 1971 date of the filing of the indictment.
The five defendants are said to have conspired to dilute the vote of qualified voters secured to them by the Constitution of Laws of the United States to vote for the aforesaid officers that is for the two federal officers and the various State and county officers which are described in paragraph six.
Now, paragraph 10 of the indictment ties the alleged conspiracy to a single precinct in Logan County, Mount Gay precinct that we’ll hear a good deal about.
He asserts that conspiracy violated State Law.
There’s no contest about that.
The evidence centers around what happen before and after May 12, 1970 in connection with the voting that took place at the Mount Gay precinct.
There are no allegations in this case of racial bias, there’s no charge that voting rights were in anyway denied or abridged or diluted because of racial color.
According to the testimony, these five defendants with the help of three election officials who were stationed in that Mount Gay precinct, setup the house that merely means that the defendants these five men obtained the help and the cooperation of three people within the precinct office to attain their purpose.
Now, what was their purpose?
Their purpose was to secure the Democratic Nomination for County Commissioner of a man named Okey Hager who headed a slate for various State and Local offices.
Okey Hager was already the incumbent County Commissioner and he is the father of Ernest that’s Red Hager who was one of the defendants in this case.
There is a testimony that a man named Cecil Elswick who was one of those three people stationed at the Mount Gay precinct and he was a co-conspirator that granted immunity by the Government, cast false and fictitious ballots on the voting machines at Mount Gay for the entire Hager slate and he got rid of poll slips, destroyed them so that the number of voters could not be determined except from the machine tally.
The trial lasted twelve days, the transcript is nearly 2,000 pages long and the five defendants were all found guilty under 241 and given provisional maximum sentences of 10 years imprisonment.
I spoke of the Hager’s slate.
What is the role of the federal officials in relation to the Hager slate?
Okey Hager’s major opponent for County Commissioner was a man named Neal Scaggs.
Hager and Scaggs each headed a Democratic Party slate or faction.
Now, repeatedly in its brief, the Government says that Senator Byrd and Congressman Hechler who were seeking renomination in 1970, were on the Hager slate and that the Mount Gay precinct was setup to ensure the nomination of all candidates, State and Federal.
We find no support in the record for this view.
So far as we can tell, neither Byrd nor Hechler was on the Hager slate or part of the Hager faction and the alleged conspiracy of these five defendants was limited to certain State and county offices including the [Voice Overlap] committee.
Justice William H. Rehnquist: Mr. Ginsburg, when you say the record, are you referring to the evidence actually introduced at the trial or to the evidence and the indictment?
Mr. David Ginsburg: In the evidence actually introduced at the trial, Your Honor.
Now, there’s some evidence that Cecil Elswick did cast unlawful votes for Byrd and Hechler in the Mount Gay precinct but we have found no evidence in the record, Your Honor, and we’ve examined all of the Government’s record references that Byrd and Hechler were the object of any conspiracy or that they were on the Hager slate at all.
Chief Justice Warren E. Burger: Was there any impact you suggest that there was no impact whatever was --
Mr. David Ginsburg: There might.
Chief Justice Warren E. Burger: -- with regards to the federal candidates?
Mr. David Ginsburg: Yes.
I’m about to go, Your Honor, into the statistics of what actually happened there.
Now, this was a Democratic Party primary.
Byrd and Hager were important, incumbent federal officials seeking renomination.
They were clearly supported, that is Byrd and Hechler, by both factions.
It happens that Neal Scaggs slate is in the record and there is no candidate for federal office on it. Yet in 31 precincts that Scaggs won, that is out of the 59 reporting precinct in Logan County, Byrd won by over 94% and Hechler by over 79%.
Now, when we examined the returns for Logan County as a whole, counting all of the 59 precincts including those won by Hager.
We find that Byrd won by 95% and Hechler by some 82%.
He went up by 3% in the County as a whole.
Now, Your Honors, it would have been an absolute absurdity to setup by single precinct out of 59 in Logan County for Byrd who was running Statewide, 55 Counties in West Virginia, 60 precincts in the State -- in the County of Logan, setup one precinct for Byrd.
Or for Hechler, Hechler had a large Congressional District including eight counties.
There was absolutely no political justification to setup Mount Gay for Byrd or Hechler.
Now, whatever conspiracy these defendants may have entered into had absolutely nothing to do with the candidates for federal office, for these defendants, the contest was between Scaggs and Hager.
Now, even the Government’s key witness, Cecil Elswick and it was he who testified that he had put the illegal votes on the machine.
He was very careful to separate Byrd and Hechler from the Hager slate.
There are excerpts from Elswick testimony of the Government’s brief but each time that Elswick referred to Byrd and Hechler, and there are only two references, Your Honors, in the 2000-page transcript.
He speaks of helping to win “for the Okey Hager slate” and for Byrd and Hechler.
Wholly natural because Hager, the Red Hager who was one of the defendants in this case also happen to be the County’s Democratic Executive, Head of the Counties, Chairman of the County Democratic Executive Committee.
Now, we simply invite the Court to examine the Government’s transcript references.
None of them we believe, we’ve examined them, all supports the Governments conclusion that the Hager slate included Byrd and Hechler or that this conspiracy was in anyway directed toward Byrd and Hechler.
Now, let’s take at look what happened at the trial.
What was the Government’s theory at the trial below in the District Court before Judge Field.
Now, again, although the indictment included a reference to federal officials indicated in the text of the indictment, the case was tried in the District Court as a conspiracy to secure the Democratic Nomination for County Commissioner for Okey Hager.
The assistant US Attorney in his opening statement made this clear.
He repeated this again in his closing statement and then when the case came up to the Fourth Circuit, the Fourth Circuit concluded “The true object and purpose of the alleged conspiracy was to secure the Democratic nomination of Okey Hager as County Judge.”
Justice William H. Rehnquist: Mr. Ginsburg, if the Government had proved the case, it alleged in its indictment in paragraph nine, you wouldn’t be making the same arguments as you now make, I take it.
Mr. David Ginsburg: f the Government had proved its case, both as against the State and the federal officials, it had proved any case against the federal officials, yes, Your Honor, we would not be making this argument.
Chief Justice Warren E. Burger: Now you indicated--
Mr. David Ginsburg: We indicated that in our brief.
Chief Justice Warren E. Burger: You suggested a moment ago that the County Chairman, the County Party Chairman who was part of this is one of the defendants?
Mr. David Ginsburg: He was indeed but there was no --
Chief Justice Warren E. Burger: It is not his -- it is not one of his functions to see to it that the incumbents of the --
Mr. David Ginsburg: I would hope so --
Chief Justice Warren E. Burger: --party get the nomination?
Mr. David Ginsburg: Absolutely and I would hope so that it would suppose that what this man did was to go out, that is Hager, Red Hager as County Chairman, go out to seek support for his candidates.
Chief Justice Warren E. Burger: Well, but the problem that he had here is that he was getting support in another way, wasn’t he?
Mr. David Ginsburg: No, but not for this purpose.
There is absolutely no evidence in the record, Mr. Chief Justice that there’s on -- that indicates that the conspiracy was directed to the federal officers.
They had only one interest.
This was the County Chairman’s job which was a very important job in that County Control Patronage.
It was a job that was very considerable importance in Logan County and this was the subject of the conspiracy not in anyway, so far as the record indicates anything having to do with Byrd and Hechler.
And as I said before, it would have been a nonsense for these people to proceed to try to setup a single precinct in a large county for a man running Statewide.
It didn’t happen, couldn’t have happened, there is a practical political matter.
Now, what did the Fourth Circuit do with this case?
On the authority of Price and Guess, it affirmed.
Now, the Fourth Circuit found that Section 241, and we’re presenting to the Court an issue of interpretation, covered the Fourteenth Amendment Rights including Voting Rights protected by the Equal Protection Clause.
In effect, the Fourth Circuit held that in a primary where federal officers were also on the ballot, a conspiracy to cast fraudulent ballot for State Office in which State election officials take part, results in the denial of equal protection and violates Section 241 even though the conspiracy was not directed against federal office, that’s the issue as we see it.
And this is the first case we find that has -- of this sort has come before the Court.
Now, the question I’m raising and we’ll consider now is whether Section 241 does cover State voting frauds.
Now, the history of --
Justice Byron R. White: Mr. Ginsburg.
Mr. David Ginsburg: Mr. Justice White?
Justice Byron R. White: Let’s assume that Mr. Justice Rehnquist suggests that they had a -- that this in fact it had seated on fraud in a federal occasion, I take that you would say that 241 which is the --
Mr. David Ginsburg: I would certainly agree --
Justice Byron R. White: What is the Constitutional Right there that is implicated by -- what is the Constitutional Right that would trigger the application of 241?
Mr. David Ginsburg: The Article 1 Sections 2 and 4, Your Honor.
Justice Byron R. White: The right to vote and I mean, that’s the right for the election.
Mr. David Ginsburg: Yes this --
Justice Byron R. White: The election--
Mr. David Ginsburg: The Court has ruled on this issue and it seems to me clear and separate.
Justice Byron R. White: Where has it ruled on that?
Mr. David Ginsburg: I beg your pardon?
Justice Byron R. White: Where has that ruled on then?
Mr. David Ginsburg: Oh, I think the Court has dealt with this before in Classic and before Classic and in Saylor.
Justice William H. Rehnquist: How about Oregon against Mitchell?
Mr. David Ginsburg: It would, yes, Your Honor.
Justice Byron R. White: And so just as in then equal protection approach to 241, isn’t it?
Mr. David Ginsburg: No.
Justice Byron R. White: This is the substantive --
Mr. David Ginsburg: Exactly so, sir.
Justice Byron R. White: Now, that you say that we must -- that isn’t involved here so now we go to the State.
Mr. David Ginsburg: Exactly right and this is what I’m proceeding to.
Consider the Fourteenth Amendment aspect of Section 241 as contrasted with the Article 1 Sections 2 and 4 aspect of --
Chief Justice Warren E. Burger: Gray against Sanders, I guess had something to do with that.
Mr. David Ginsburg: Exactly.
Now, this is a well-plowed field as the questioning has already indicated and every lawyer who's read the decisions knows that this field is also well-mined.
Now, obviously the Congress didn’t intend the 1870 Act to apply to non-federal elections unless some form of racial discrimination was involved.
Indeed it was convinced in 1870 and the history has shown in many decision of this Court at that time the Congress had felt that the Court -- the Congress felt that it had no Constitutional authority in this field.
But today, we do not question the existence of Constitutional authority.
The question we’re submitting to this Court is whether without Congressional sanction Section 241 should now by interpretation of this Court, be extended to cover the Federal policing of State and local elections where racial discrimination is not shown and it’s not an issue.
That I believe is a central issue in this case.
Now, so far in my view, Your Honor, the Courts could extend Guest and Price to cover Anderson although the indictment and the record in this particular case would I think present the Court with troublesome problems that I’ll come to in a moment.
We urge however that the Court leave the decision on federal policing of State and local elections to the States and to the Congress where again racial bias is not shown.
There’s ample legal justification for it.
The Congress has considered this matter many times before, most recently I think in 1957 and 1964 and again in the Voting Rights Act of 1965.
The legislative history is fully set forth in our brief.
There’s no need for the Court to expand the jurisdiction of the Federal Court into this area which so far has been reserved to the States.
The authority which the Government now seeks from this Court for its prosecuting attorneys has been deliberately and consistently withheld by the Congress and it’s peculiarly the kind of authority which lends itself to partisan and even geographically discriminatory political direction.
The States we submit must be given a full opportunity to come to grips with these issues of corruption.
We’ve see it Maryland, we’ve seen that in New Jersey what’s been happening and even in West Virginia in this particular case, Your Honor.
A State grand jury had been called and had come in to session and it was the US Attorney as we understand it who asked that the State grand jury not be convened and warned that if it were convened, the Government would seek an injunction to stop it.
Now, let me turn for a moment to the indictment.
Again, paragraph nine of the indictment charged to the defendants with the conspiracy to injure the qualified voters of Logan County by denying them the right to have their votes fully counted, by having their votes diluted.
Defendants moved to dismiss the indictment and the motion was denied on the ground that the indictment adequately charged the defendants under Section 241.
At trial, the Government sought to prove a conspiracy that had at its object not the Office of Senator or Representative but County Commissioner.
The indictment didn’t specify the State or County Office which was the object of the conspiracy.
The indictment didn’t suggest that the five defendants or their three co-conspirators were acting under color of State Law.
It did not identify the separate Constitutional Rights or rights which were allegedly denied, and as a practical matter, it failed clearly to inform the defendants of the charges against them and all of their subsequent motions for discovery and clarification were denied.
It wasn’t until the trial began that the defendants and their counsels first learned that the alleged conspiracy involved the State Office and it wasn’t until the fourth day of trial that they know who the unnamed co-conspirators were and where the acts took place.
Now, the deficiencies -- well, if in the indictment and this goes to a point of the question Mr. Justice Brennan asked.
The Government had at least separated the two alleged offenses in separate counts.
The Court and the defendants would have been in a position to challenge the legal sufficiency of Section 241 and its application to State and County Offices and at the close of the Government case the sufficiency of the evidence in relation to the Federal charge.
This wasn’t done.
Here the Government was in the enviable position of being able to defend a motion to dismiss by arguing that a conspiracy to cast fraudulent votes in a Federal election clearly stated an offense under Section 241 and then proceed to try the case on the basis of a conspiracy to cast votes in an election for a local office and on appeal the Government will then be free to urge affirmance on whatever basis that felt emerge in the record.
Unknown Speaker: Well, can’t you move for judgment of the acquittal at the close of the Government’s case if they failed to approve the conspiracy of the alleged in the indictment?
Mr. David Ginsburg: We did move to dismiss, Your Honor.
It was overruled.
Section 241 is a conspiracy statute which required no overt act does an element of defense I don’t have to bring to the attention of this Court the kinds of problems where Justice Jackson dealt with and described in his separate opinion in Krulewitch.
This indictment, Your Honor, was defective and it wasn’t cured by anything by the evidence brought out in the trial.
It was subsequently and substantially defective and it wasn’t the case of a meeting any magic or talismanic words.
It simply didn’t frame the issues which already been be framed by the questions of this Court but there’s still another problem, that the Government fails to come to grips with.
The indictments charged that the defendants conspired to dilute votes in two Federal officers.
This gets to the point that Mr. Justice Brennan inquired.
The integrity of Federal elections is protected as indicated by Sections 2 and 4 of Article 1, the integrity of State and local elections is protected by the Fourteenth Amendment.
In Screws, one of the landmark cases of the Court in this area, the Court held that in order to prevent serious doubts about unconstitutional vagueness in Section 242, a companion statute, we’re dealing here with 241, it was 242 in Screws where the term willful was used.
The term willful, this Court said in that Section must be construed to mean a purpose to deprive a person of a specific Constitutional right and then it said that that issue must be submitted to the jury under appropriate instructions.
Chief Justice Warren E. Burger: We’ll resume there right after lunch.
Mr. Ginsburg are you trying to continue or reserve?
Mr. David Ginsburg: I’ll continue -- I’ll reserve three minutes, Mr. Chief Justice.
Chief Justice Warren E. Burger: Very well.
Mr. David Ginsburg: We’re dealing here with an alleged voting frauds in Federal and State elections under separate Constitutional Provisions due to the facts.
Now, under Screws and Price combined, the Government was required to demonstrate specific intent to violate each of these provisions and the Court, the District Court, was required to submit these issues to the jury under its charge.
The District Court of course failed to do that, the indictment failed to separate the Constitutional provisions and no such charge was made.
Now, the essential problem was the defect in the indictment and that obscurity wasn’t cleared by the evidence that came in the trial.
If this was a multiple conspiracy, as the Government contends, then neither the prosecutors nor lawyers that tried the case, nor the District Court that heard it nor the Fourth Circuit that reviewed it, appreciated that fact.
Now, I have one final point and that is on the matter of the relief we have requested.
Under a very broad Section 241 indictment, the Government security conviction on the assumption that this Court had already ruled.
That 241 permits the Government, Federal Government, to police State, the voting frauds and asking this Court to reverse the judgment below.
We’re simply asking the Court not to extend the jurisdiction of Section 241 to local elections where no racial fraud is shown but we do recognize in this in response to questions that Mr. Justice White and Mr. Justice Rehnquist asked.
We do recognize that the Government might have presented evidence, if they had any, under the same indictment showing a conspiracy by these five defendants to cast fraudulent votes in a Federal election.
It didn’t do so but if the Court concludes that the Government should now be given a chance to produce such evidence, if it has it, then we urge that the decision below be reversed on the issue of statutory interpretation and remanded for trial under appropriate instructions on the Federal issue.
Unknown Speaker: Then your real quarrel was not with the indictment or the proof adduced in the support of, isn’t it?
Mr. David Ginsburg: No, Your Honor.
The indictment failed to separate these two Constitutional provisions and there was no evidence submitted in the trial on the Federal issue.
Now, our position is that the Government is entitled to its day in Court if it has such evidence and the case can be sent back for trial on the Federal issue.
Unknown Speaker: That’s not the only evidence, of course, under your submission that they could be on retrial?
Mr. David Ginsburg: Exactly so, sir.
Chief Justice Warren E. Burger: This is not exactly the position that was taken in the Court of Appeal, is it?
Mr. David Ginsburg: Your Honor, let me be perfectly frank with this Court that it’s quite clear that these issues were not sought to be brought out in the District Court.
The case was tried without reference to it.
It came to the Court of Appeals. The issue wasn’t briefed in the Court of Appeals on oral argument.
There began to be some awareness that there was a Federal issue on a problem of a statutory interpretation but the case was obscure and the issue has been finally delineated only before this Court.
Unknown Speaker: Mr. Ginsburg, could I ask, as I read the Court of Appeals’ opinion I got to the question of State elections and said that 241 -- and said that 241 covered frauds in State elections because of an equal protections rationale but they felt compelled to reach that question because of admissibility of evidence issue.
Let’s assume that this Court said, well if the indictment was wholly proper because of the Federal case, Federal election the evidence, then the conviction would have been proper on normal circumstances as to protect the Federal election but then could you avoid the State election question or is everything tainted by the fact that there was an evidentiary question here, admissibility of evidence question.
Mr. David Ginsburg: It seems to me that there is essentially for this Court as far as we been able to analyze the case and the record as you’ve indicated is obscure is that the Fourth Circuit really did rule on the issue of statutory interpretation and it did hold, it extended your decisions in Price.
Unknown Speaker: But it did so in the name of passing on the admissibility of evidence question.
Now if --
Mr. David Ginsburg: We failed to appreciate that point, Your Honor.
It’s -- we can’t --there was the it -- I think, Your Honor, that the issue to which you have reference arised in this fashion.
There was an argument before the Court of Appeals that the Federal election had been certified 15 days after the recount and the defendants argued before the Court of Appeals early that after the Federal election had been certified, no evidence, what had happened and then it subsequent investigation should have been introduced and the Court overruled that.
They said, “Yes, go ahead” and they introduced that evidence but the essential thrust that seems to us as we read the decision is that that Court passed on the issue that the evidence in this case having to do with a State election satisfied -- fell under the jurisdiction of Section 241.
Unknown Speaker: Let’s assume that the Court was wrong on its construction in 241 with respect to State elections.
Mr. David Ginsburg: Yes sir.
Unknown Speaker: Then I take it, this evidence that we’re talking about arguably was inadmissible.
Mr. David Ginsburg: Arguably?
Unknown Speaker: Well, let’s assume that it was inadmissible.
Mr. David Ginsburg: Yes.
Unknown Speaker: That’s an independent ground for reversal of the convictions, isn’t it?
Mr. David Ginsburg: If the evidence was improperly introduced, my view would be at that point that there would be no evidence in this record to even having to do with the statement.
Unknown Speaker: [Voice Overlap] The problem under this argument then is that since there was no contest over the votes for Federal officers, Federal jurisdiction on a conspiracy ended at that time and the evidence of subsequent events at a contest hearing involving only a State office, voted on at the same election was accordingly inadmissible.
Let’s assume that was inadmissible, would that require that the conviction be reversed?
Mr. David Ginsburg: It would in my view because there would be no evidence in the record.
This is the essential evidence in --
Unknown Speaker: Well, the Federal Court – whether they could have convicted your clients for fraud in a Federal election is dispositive with the case because even if they could apparently that was inadmissible evidence introduced.
If the Court was wrong on the 241 --
Mr. David Ginsburg: I don’t quarrel with that analysis as we see the case at the moment, the Government at least as the case has presented at both below in the intermediate Court and here, as it finally reaches here, is simply that a Federal violation was charged and therefore we have the right to come in under Section 241.
We say that a State Voting fraud was a conspiracy was shown, if it was shown there.
But that had nothing to do with the Federal election and that the statute should not be extended.
Chief Justice Warren E. Burger: At least there are no power -- there is no power in any Federal statute to guarantee the integrity of a State election.
Let’s assume you had an off year election and there were no Federal officers on the ballot at all, just local, is there -- doesn’t the statute seek to protect the integrity of State electoral processes?
Mr. David Ginsburg: The Court, Your Honor, until now has refused, deliberately refused, after the most mature consideration to extend it so far.
If it’s done, this would be the first time in judicial history that Section 241 has sought to be applied.
Chief Justice Warren E. Burger: I was speaking of power.
Mr. David Ginsburg: No doubt, Your Honor, regarding Constitutional power.
We raised no question that under the Fourteenth Amendment Section 5, the Congress can clearly reach it and indeed they are debating it.
They debated it over the past 10 years, there are bills pending today dealing with these problems and there’s no doubt too that the State could deal with it and many States had dealt with it that effectively.
The issue really is whether this section should now by interpretation of this Court be extended without the sanction or prior consideration by the counsel.
Chief Justice Warren E. Burger: But it’s already has that reach if there were any discrimination in terms of voting.
Mr. David Ginsburg: Exactly right, sir.
If there's racial discrimination, there’s no doubt in our view.
We’re not urging that point that Section 241, in our view, would be applicable.
Chief Justice Warren E. Burger: Well, Mr. Ginsburg, we’ll allow you your three minutes rebuttal and adjust all the time accordingly.
Argument of Lawrence G. Wallace
Mr. Lawrence G. Wallace: Mr. Chief Justice, and may it please the Court.
There are two questions presented in the petition for certiorari in this case.
One is whether Section 241 of Title 18 applies to a primary elections for State officers and the other is whether if it does so apply, an indictment under Section 241 must charge State action or action under color of State Law.
Those two questions were both decided by the Court of Appeals and are properly before the Court and we have argued that they were correctly decided by the Court of Appeals but we also advance an argument that the Court of Appeals need not have reach those issues and this Court need not reach the issues because the case involved the casting of fraudulent votes in a State election -- in a Federal as well as the State election.
There were some other arguments advanced with respect to the sufficiency of the indictment or with respect to the charges to the jury that in our view are not comprised within those questions presented and are not properly before the Court.
Unknown Speaker: How about -- you will mention whether you have to reach the State election issue based on this evidence question?
Mr. Lawrence G. Wallace: I will, Your Honor and I’ll be getting to that in just a moment.
Unknown Speaker: Because that seems to be the way the Courts of Appeals reach that question?
Mr. Lawrence G. Wallace: It undoubtedly was delayed.
The Court of Appeals reached the issue of 241’s applicability to State elections but we think unnecessarily under the Court of Appeals own rulings.
Now, contrary to one remark made by counsel for the petitioner, the Government’s theory in this case is not that they were two conspiracies.
In our view the entire case was tried and the indictment charged, a theory of the single conspiracy to cast and have counted fraudulent votes for candidates running for the Federal and State offices in the May 19, 1970 West Virginia primary.
No distinction was made by either the Government or the defense between the Federal and State offices during the entire course of the trial from beginning to end.
As the Court of Appeals opinion itself points out, that issue first was brought into the case in course of oral argument in the Court of Appeals.
Now, we think the evidence as well as the allegations shows that the conspiracy embraced the casting of false votes for Federal officers.
We had set forth in our brief in the statement on pages six and seven of our brief in a lengthy footnote, footnote number 11, the most relevant portions of the evidence dealing with the reach of the conspiracy to the casting of fraudulent votes for the Federal officers.
Cecil Elswick who was the witness during this part of trial was testifying about his activities and he is the one who did the actual casting of the fraudulent votes in the Mount Gay precinct and his testimony recounted on page six.
When he was asked what the petitioner Hager asked him to do and bringing him under the conspiracy, he answered that, “He wanted me to go along with them and if I didn’t, he would cause me trouble.
He was a Deputy Sheriff”, the petitioner Hager.
To detail you what he meant by going along with them and they answered go along and help win the Mount Gay precinct on election.
They questioned “For whom?” and answered, “For the Okey Hager’s slate and Senator Byrd and Ken Hechler” that was when Mr. Elswick was brought in to the conspiracy and as the Chief Justice suggested, the record does show that petitioner Hager was the Chairman of the Democratic County Committee and he may well have had an interest in maximizing the votes for the Federal candidates as well as for his father who was running in the most hotly contested elections.
Then the testimony goes on, on page seven as that footnote continues, Cecil Elswick testified that he in fact put fraudulent votes on the ballots at Mount Gay for the Federal officials.
“Mr. Elswick, did you put any illegal votes on those machines that day?”
“Yes sir, we did.”
“I lost count at about 90 it was over a hundred.
I lost count that evening, I only more on after I lost count, so it was over a hundred votes.”
“Who were you putting those votes on there for?”
“I was putting them on there for Senator Byrd and Ken Hechler and Okey Hager slate before I count” etcetera.
And the evidence shows mathematically as its recounted on page eight of our brief that fraudulent, false, fictitious votes were in fact cast for the Federal candidates or votes were cast for each Senator Byrd and Congressman Hechler and there were voters who could have possibly voted in that precinct that day.
There is also on page seven in the footnote, references in the record to the Byrd’s slate which was apparently synonymous with the Hager slate.
The Federal candidates where opposed in that election as the figures that counsel for the petitioner gave the Court indicate.
They received a high percentage but not 100% of the vote in that primary.
Then we have here a situation in which possibly the motivation, the motive of the conspiracy was solely to win the election for the County in a Court office that was at State.
This was not the theory of the defense, there was nothing introduced in evidence at the trial to show that the conspiracy was anything other than a conspiracy to cast votes for the Federal and State offices and indeed it would be inherently incredible to think that they could conspire to stuff more than 100 ballots in a precinct of this size for the State offices alone because it would be so conspicuous and so likely to allows suspicion if the vote was that much less for the well-known Federal candidates.
Again, for the State candidates it obviously, it would not be an effective way of proceeding and there is some indication in the record on page 44 of the appendix that are this indeed may have been one of the reasons why the conspiracy embraced the Federal officers as well as the State ones and Mr. Elswick testified about what petitioner Browning said to him in a meeting, concerning what was to be done at the Mount Gay precinct and the question there on page 44 about six or seven lines down.
“You’ve seen Mr. Browning was at that meeting?” answer “Mr. Browning was at that meeting and when we walked outside to the door, there he said Cecil, put them on there but don’t put enough on there to get in any trouble” He meant don’t pull all the registration book or you would get in trouble and they could catch it easy.
Well, obviously that at least meant not to cast more votes than they were possible voters in the precinct but that --
Unknown Speaker: They believe that admonition, I think.
Mr. Lawrence G. Wallace: [Laughter] He may not have anticipated the proof that would be offered of the number who did not in fact vote but obviously, there were more than a hundred votes cast for the State offices and not for the Federal, the conspiracy would have little chance of succeeding.
And so the entire theory of the case was that this was the single conspiracy which involved the casting of fraudulent votes for both the Federal and State offices and the evidence introduced while it showed that it also tended to focus a great deal on what was the principal contest and the contest, the outcome of which was affected by the votes cast at this precinct because countywide, the difference between the vote for Mr. Hager and the vote for Neal Scaggs, his opponent, was only about twenty-one votes and more than one hundred fraudulent votes were cast for Mr. Hager according to the allegations here in this one precinct.
This was enough to change the outcome.
This was the dramatic aspect of the conspiracy and the aspect that had given rise to subsequent acts on the part of the conspirators to effectuate the counting of those ballots in the State contest proceeding.
Chief Justice Warren E. Burger: Under the statute does it make any difference whether the fraud affects the outcome?
Mr. Lawrence G. Wallace: It does not, Mr. Chief Justice.
The cases indicate that the statute --
Chief Justice Warren E. Burger: The fraudulent effort that fails is just as much a crime as one would succeed?
Mr. Lawrence G. Wallace: Even if the purpose was not to affect the outcome but just to falsify the votes, the holdings have been that the right protected of voters in the Federal election is to an accurate count and to have their votes given their proper effect and weight in the election.
And as we know, in political life, the magnitude of victory can be quite important in determining governmental policies where even if they don't change the outcome but who was elected to office.
Now, the evidentiary question to which Mr. Justice White has alluded, arose because the defendants contended at the trial that in its instructions and this was the only objection made to the Trial Court’s instructions and preserved at the trial, that the jury should have been instructed to disregard all evidence of acts that occurred after the results of the election had been certified approximately a week after the election date.
There had been much evidence introduced at the trial concerning the contest proceedings about the results in the County of Court raised.
All of which occurred after the certification in an effort to upset the certification for the State office.
And in the course of passing on whether that evidence was properly admitted, and that is the controversy about whether evidence was improperly admitted, the Court of Appeals held that it was properly admitted with respect to the conspiracy charged and proved confining itself to the conspiracy for the State offices because it held and this is on page 18A of the appendix of the petition for certiorari because it held that the true object in purpose of the conspiracy charge, so far as this question is concerned, was to secure the Democratic nomination for Okey Hager as County Judge and that this conspiracy embraced the attempt to effectuate these returns throughout the contest proceedings and not end with the formal certification of the results that was subject to being undone in the contest proceeding.
So that the evidence that had been introduced concerning the continued efforts of the conspirators in furtherance of the objective of the conspiracy after the formal certification was properly admissible the Court held.
Unknown Speaker: So, your theory then is that if the conspiracy embraced, in the slightest way, the casting of any fraudulent votes for Federal officer that’s enough to bring it under 241?
Mr. Lawrence G. Wallace: Well, under the established holdings under 241.
Unknown Speaker: What would the Court of Appeals, you probably don’t know but they held that -- well, then arose the question well -- even so the evidence was inadmissible because 241 doesn’t cover State election.
Mr. Lawrence G. Wallace: That’s right and at oral argument in the Court of Appeals for the first time, a contention was made that the casting of fraudulent votes for the Federal officers constituted something separate and all the 241 covered and that -- as to that conspiracy if it could be deemed a separate conspiracy, the certification was to cut off for possible admission of evidence because no contest ensued with respect to the Federal officers.
Now, this was the first time that any suggestion had been made that this was more than one conspiracy.
Every indication in the allegation and in the trial was that it was a single conspiracy to cast and have counted votes for this slate of candidates, Federal and State alike.
Unknown Speaker: The Court of Appeals then did reach the constructions?
Mr. Lawrence G. Wallace: And the Court of Appeals for that reason, instead of holding that the evidence as to the acts of the conspirators in furtherance of the conspiracy insofar as they affected only the State returns was properly admissible.
Unknown Speaker: Because it was one conspiracy.
Mr. Lawrence G. Wallace: Because it was one conspiracy.
Instead of reaching that issue the Court of Appeals held that 241 applies to a conspiracy just to affect State officers anyway to cast fraudulent votes for State officers and therefore it need not worry about.
Unknown Speaker: What should we do if the Court was wrong in that deal of 241.
I’m not saying it is but assuming that it’s wrong?
Mr. Lawrence G. Wallace: Well, we think that --
Unknown Speaker: Then we have to remand the Court of Appeals or do we -- then but you suggest for just reached the single conspiracy --
Mr. Lawrence G. Wallace: Well, we would suggest that this is an alternative ground for affirmance that the Court -- it’s apparent on this record that this is a single conspiracy, an identical issue really except it didn’t involve the time gap that was involved in this case.
Unknown Speaker: Mr. Wallace, do you submit an argument for against the Court of Appeals’ interpretation of 241 as reaching local --
Mr. Lawrence G. Wallace: We do submit an argument that the Court of Appeals decided that correctly and that’s our alternative contention here.
Chief Justice Warren E. Burger: I understand that you’re saying too that even if the different conspirators had different priorities in terms of the objective that they were trading horses in effect and that each is then charged with the total action.
Mr. Lawrence G. Wallace: The conspiracy embraced the casting of fraudulent votes as one of its objectives for the federal officers even though the motive may have been solely to get Okey Hager elected to the County Court, the fact that the conspiracy embraced the casting of false votes with the federal officers is enough under this Court’s decision in the Ingram case for federal jurisdiction to apply without reaching the question whether the statute reaches the conspiracy to affect the State offices, that aspect of the conspiracy and surely it’s of no moment to obvious federal interest why it is that more than a hundred false votes were cast in the federal election for the federal officers.
We analogize it in our brief to the conspiracy to rob a federally ensured bank.
It’s just as this much a crime regardless of what it is that the conspirators were intending to use the proceeds for.
And we see no difference here that their motive may have been only to affect the outcome of the State election, and they were for, they were conspiring to falsify the federal election.
Chief Justice Warren E. Burger: Would you have to go that far? [Voice Overlap]
Mr. Lawrence G. Wallace: That’s what the [Voice Overlap] hold.
Chief Justice Warren E. Burger: Do you have to go that far in view of the testimony that, I forgot the name of the man but it’s in footnote 11.
It was for the slate of the Senator, the Congressman, and local slate.
Mr. Lawrence G. Wallace: That is what we’re relying.
Chief Justice Warren E. Burger: If the jury had a right to believe that then do you say that every member of the conspiracy is charged with that testimony.
Mr. Lawrence G. Wallace: And it was a single conspiracy to falsify returns for that slate in that one primary.
The casting and the counting was all done in the one primary for the one slate of candidates.
We don’t see how this is really separable into more than one conspiracy.
The suggestions that’s made is that really they did it with respect to the federal officers only to subserve their purpose to win for the County Clerk post which really intertwines it into one conspiracy in their contention as well as we understand their contention.
We don’t see how there is a separate conspiracy here at least, no one has raised that defense and so under the Court of Appeals on holding we think the evidence --
Unknown Speaker: There must have been a problem with evidences.
This argument is probably made by Court of Appeals, wasn’t it?
Mr. Lawrence G. Wallace: It arose on an oral argument for the first time.
Unknown Speaker: Well, I know but you must have made the same argument at the Court of Appeals as single conspiracy.
The Court of Appeals didn’t--
Mr. Lawrence G. Wallace: They didn’t pass on that.
Unknown Speaker: They would offer -- that they reached a much more difficult complicated questions, it seems to me.
Mr. Lawrence G. Wallace: Well, it is not so difficult after what this Court set in Price.
In Price, the Court unanimously held that 241 applies to all Federal Constitutional rights.
Unknown Speaker: Well, I didn’t want to give in the merits that.
I just wonder what the Court of Appeals must have thought there was -- not that the single conspiracy theory wasn’t so sound as you might make it sound.
Mr. Lawrence G. Wallace: Well, I have not read the transcript of the oral argument before the Court of Appeals.
I really don’t know to what extent these issues have been clarified --
Unknown Speaker: They pass but they don't buy that --
Mr. Lawrence G. Wallace: Well, that’s the way they chose to decide the case and it’s quite understandable because in addition to the passages that we cite from Guest and Price, There was in Price another passage which is very indicative of this holding and that’s on page 805 of the 383 US in which the Court holds, “We cannot doubt that the purpose and effect of Section 241 -- purpose and effect of Section 241 was to reach assaults upon rights under the entire Constitution including the Thirteenth, Fourteenth, and Fifteenth Amendments and not merely under part of it.
Unknown Speaker: Neither those cases deal with voting and State election.
Mr. Lawrence G. Wallace: Well, immediately neither of those cases dealt with that precise issue but immediately before that sentence, there’s a footnote saying in this historical context in the text, “It is hardly conceivable that Congress intended Section 241 to apply only to a narrow and relatively unimportant category of rights.”
And then the footnote cites among other cases, for example, United States v. Classic parenthetical right to vote in federal elections.
It’s quite obvious that the reasoning was that 241 embraces more than that as it was the reasoning from the Mosley case through the others under Section 241 that have dealt with voting rights.
The fact of the matter is that although Congress in 1870, may have had a limited conception of the Federal Constitutional Protection of Voting Rights, this has been expanded enormously since that statute was enacted.
Not only by interpretations of the Fourteenth Amendment but by other Amendments to the Constitution including the Seventeenth Amendment providing for direct election of Senators.
The Nineteenth Amendment --
Unknown Speaker: But isn’t it the question, that Congress intended to cover by 241 not enough what -- not what the -- not that the Constitution is construed to that.
Mr. Lawrence G. Wallace: That is what the Court addressed in all of these cases and decided in Mosley and in Price and in the cases in between, that 241 was broadly written in generic terms to cover not only the rights that then existed but all rights that may come into fruition under the Constitution including the rights under the Nineteenth Amendment, the rights under the Twenty-fourth Amendment and under the Twenty-sixth Amendment and under the Fourteenth Amendment.
Unknown Speaker: As I put it, except -- if they have said except voting rights, I suppose you wouldn't make that argument.
Mr. Lawrence G. Wallace: If they had put exemption in of course --
Unknown Speaker: You won’t but the legislative history is equivalent to an exclusion.
Mr. Lawrence G. Wallace: That issue was thoroughly mooted in the majority and dissenting opinions in Mosley, in Classic, and in Saylor.
And it seems to us that the Court has disposed of it.
Justice William H. Rehnquist: What you’re contending that that would make ballot stuffing in a School Board election as a federal offense under 241?
Mr. Lawrence G. Wallace: That is correct, Your Honor, and contrary to what the petitioners’ counsel contends that there’s no need for this.
This record itself suggests that there is in need for this on page 31 of the appendix in which the testimony was about what the false story was to be in this State proceedings which as we’ve noted came to not in this case, these votes were not thrown out in the State proceedings.
The bottom of page 31, the question was, “Did they tell you what the story was to be?”
Answer, “Well, like Garret Sullins’ voting for one thing and if we would stick together in telling falsehoods about this, that we would could not be convicted of nothing because we had the County Court, the Judge, and the prosecuting Attorney, and the Sheriff.”
Justice William H. Rehnquist: Well, whether one thinks there’s a need for that, Mr. Wallace, on the basis of that testimony and I suppose depends one’s view on the federal system whether every time you find a corrupt Prosecuting Attorney in a County you feel that the Federal Government ought to step in. I don’t think that’s beyond debate.
Mr. Lawrence G. Wallace: It may not be beyond debate but the holdings of what 241 means is that there is Federal protection for the Constitutional rights of individuals under the Federal Constitution and certainly one of the most important of those rights is not to have his vote diluted improperly.
This has been the whole thrust of the series of reapportion in cases addressed an improper dilution of ones voted certainly and certainly am improper dilution to cancel it out through ballot box stuffing and in effect make it a half vote or a third of the vote.
Chief Justice Warren E. Burger: I take it Mr. Wallace that if in a local election on hypothesis of Mr. Justice Rehnquist’s question.
In a local election, if you had a woman candidate and the man who were in-charge of the election machinery said, agreed among themselves that they were only going to count one in three of the woman’s votes on the assumption that they were all going to -- most of them would vote for the woman, woman candidate.
Do you say 241 would cover that?
Mr. Lawrence G. Wallace: We say it would cover it and the petitioner's theory is that it would not cover it even in a Federal election because the Congress that enacted 241 prior to the adoption of the Nineteenth Amendment that it did not have power to protect against sex discrimination.
The same thing would be true about the poll tax that is protected against in the Twenty-fourth Amendment and the 18-year old vote that the Twenty-sixth Amendment affords protection for.
The Court in this whole series of cases for Mosley through Price and Guest has rejected the idea that 241 which is written in generic terms to apply all of these rights has frozen the Constitutional Rights protected to those that existed in 1870.
Unknown Speaker: Was Mosley a Federal election?
Mr. Lawrence G. Wallace: Mosley was a Federal election, Your Honor.
Unknown Speaker: Mr. Wallace, I didn’t understand the petitioner to say that 241 would not be applicable to a Federal election. Can you elaborate on this?
Maybe I misunderstood what you just said.
Mr. Lawrence G. Wallace: The ballot box stuffing in a Federal election, that is correct and that is his theory, that that could be protected, ballot box stuffing or racial discrimination in a Federal or State election.
Unknown Speaker: But do you understand that he does not say that 241 applies in a federal election?
Mr. Lawrence G. Wallace: That would be the sex discrimination.
Well, the old holdings were that 241 did not apply under the Bathgate case in a Federal election to bribery of voters and that was the --
Unknown Speaker: Well,
Mr. Lawrence G. Wallace: The principal issue is --
Unknown Speaker: Mr. Wallace, the prisoners’ counsel would speak for himself but I understood that for the purposes of this case, at least, he had acknowledged that a conspiracy to frank on a fraud in a federal election would be covered by 241 and indeed a conspiracy to racially discriminate in the State election would be covered but --
Mr. Lawrence G. Wallace: Well, --
Unknown Speaker: He’ll speak for --
Mr. Lawrence G. Wallace: This is something that the Court would --
Unknown Speaker: He does say that I understood it that way too.
He does --
Mr. Lawrence G. Wallace: I did not.
My understanding of his theory is that 241 must be interpreted in light of the powers, the Congress thought it had in 1870 and if Congress at that time thought it could not protect against sex discrimination in Federal or State election --
Unknown Speaker: How about --
Mr. Lawrence G. Wallace: -- and 241 wouldn’t cover it. that inquiry would have to be made.
Unknown Speaker: How about the power to protect against ballot box stuffing in the State election?
Mr. Lawrence G. Wallace: No, he’s not asking the Court to overrule Saylor and Saylor was a direct holding on that point but it does cover ballot box stuffing.
Unknown Speaker: Yes but he agrees in Federal election, --
Mr. Lawrence G. Wallace: In federal elections.
I don’t want to make his contention for him and say what it is but it seems to me that the theory of his case as I understand it because there’s no other basis on which he is asking the limitation of 241 and I don’t see any other basis after Price and Guest in which he can ask for a limitation of 241.
His theory has to be that it’s limited to what Congress thought it had the right to protect against in 1870.
It seems to us, the holding in Guest, the holding in Guest rejects that theory because at that time it was even before Plessy against Ferguson had been decided but that certainly was the governing principle of rights under the Fourteenth Amendment at that time and yet the holding in Guest was that in a series of cases beginning with Brown against Board of Education another Constitutional principle had come in to prevail and was embraced within the protection of Section 241.
So, I don’t think that this necessarily seem like the more difficult issue to the Court of Appeals.
It seemed to them like something that had been decided in Guest and Price and we agree with them that the essential thrust Guest and Price is that 241 applies to these rights.
This was thoroughly considered at the time, 241 had given the Court a great deal of trouble and in a unanimous opinion in Price, the Court concluded that 241 does apply all rights under the Thirteenth, Fourteenth, and Fifteenth Amendments italicizing all in the Court’s opinion as well as to all other Constitutional rights.
Unknown Speaker: But you still don’t think it’s necessary for us to reach that issue in this case?
Mr. Lawrence G. Wallace: Well, we see no need for because they decided cases involving voting frauds under 241 seems to us, show that the statute protects against falsifying elections for Federal Offices in the manner that it was done here and we don’t think there was any ambiguity even about whether this was all one conspiracy and --
Unknown Speaker: We do have to dispose of that evidentiary question -- would you suggest we don’t do it the way the Court of Appeals did but on another ground?
Mr. Lawrence G. Wallace: Yes that you can nearly hold -- The Court of Appeals did hold that the evidence with respect to the contest proceedings was properly admissible here because the conspiracy lasted this long even though there was no longer any contest about the Federal officers and our submission is that that holding was correct as far as it went and suffices to uphold this conviction.
This is exactly the question that the Court of Appeals for the Eight Circuit had before it in a case called Devoe against the United States which is cited in the footnote at the very bottom of page 15 of our brief.
A case back in 103 F.2d and what the Court of Appeals for the Eight Circuit had to say in that case was the Government’s evidence.
I’m quoting from page 588 now at 103 F.2d, “The Government’s evidence was not at any time directed towards showing the existence of a number of separate and distinct conspiracies but was directed toward showing one general conspiracy which contemplated in part a false count and a false certification of the ballots cast for the Congressional candidates.
So much of the conspiracy has constituted a violation of the federal law was a part of the general plan or scheme of those engaged in the conspiracy.
The contention of the Government should have been limited in its proof to only so much of the evidence as directly bore upon the portion of the conspiracy which constituted the violation of Federal Law is we think unsound.”
And that is the Court of Appeals in the present case could have used the exact same language in disposing off the case without reaching the issue whether 241 applies to a conspiracy that do not involve the casting of fraudulent votes for the Federal officers.
So, we think the judgment should be affirmed on either of these grounds.
We leave to our brief the discussion of the adequacy of the indictment to alleged action under color of law if the Court reaches that issue.
Chief Justice Warren E. Burger: Mr. Ginsburg, you have three minutes left.
Rebuttal of David Ginsburg
Mr. David Ginsburg: Mr. Chief Justice, may it please the Court.
Government has said that this is a single conspiracy and of course the re-indictment was so framed.
This is one of the errors in the Government’s, in the way the case was tried below.
I might point out to the Court in the appendix that printed page 854, I’m now reading from the Government’s closing statement, “In the summary of the evidence introduced in that case, I think from the evidence that Mr. Kingley(ph), you can conclude by now that the theory behind the Government's case actually is that this vote for cast encountered by going through the contest and all in order to get Okey Hager elected to the County Court.
In order to get Red Hager’s father elected to the County Court that these defendants along with others got the votes cast and got the votes counted in the long drawn out procedure that was involved over there.
There are other references and it was through -- the indictment charged a federal offense.
The attempted proof was a conspiracy to get Okey Hager elected County Commissioner.
Justice Thurgood Marshall: What about that language that Mr. Wallace read on the sixth and seventh page of their brief?
Mr. David Ginsburg: This was the language, Mr. Justice Marshall, to which I had reference during the oral argument. I pointed out specifically and this was clearly understood at the time the record in this case is a sociological document of what exists in Logan County, West Virginia, pages six and seven.
And one case for the Okey Hager’s slate he was casting vote and Senator Byrd and Hechler.
Justice Thurgood Marshall: Well, what that -- who were putting those votes on there for?
Mr. David Ginsburg: I was putting them on for Senator Byrd and Ken Hechler and the Okey Hager slate.
There were two.
The point was that they were all for Ken Hechler.
They were all for Senator Byrd and the problem was did this conspiracy direct itself to Hechler and Byrd or was it limited to the County Commissioner.
Our submission on the record of this case, check every citation that the Government has given to you, is that the conspiracy was limited to this job of County Commissioner.
Had nothing to do with Byrd and Hechler?
They were all for Byrd and Hechler in Logan County, West Virginia, 95% of the vote went for them.
Justice William H. Rehnquist: But supposing you’re right in that, Mr. Ginsburg, can you raise that under the questions you’ve presented in your petition?
Mr. David Ginsburg: Yes, I think so, sir.
Because as we read the Court of Appeals’ decision to which we’ve had so much reference, the Court felt apparently as we do here that the submission of the Government was a submission of a case on the basis of a State fraud and they felt it necessary to extend Section 241 to Local-State fraudulent voting issue.
Just on the issue of Constitutional --
Unknown Speaker: Thank you very much, Mr. Ginsburg.
Mr. David Ginsburg: Just on the issue of Constitutional power there is no question of ample Constitutional power to deal with these matters whether it has to do with sexual discrimination or the kind of vote frauds that dealt within this case.
The issue is whether Section 241 will now be extended by this Court into this area on this record.
Justice Byron R. White: Mr. Ginsburg, can I ask you one question.
It may seem impossible in West Virginia, the circumstances but let’s assume that one of these federal candidates had lost the election by fewer than a hundred votes, would your position be the same?
Mr. David Ginsburg: I think if the conspiracy, my position would be the same on the record on this case, there’s no doubt of that.
Because the conspiracy that was shown the only conspiracy that was shown under Section 241, the only evidence in the record and that will take you into a consideration of the evidence in the record, and the only evidence in the record we can find is that when these people talked among themselves as to what they were going to do, they were talking about Okey Hager and there was no consideration, no discussion, no effort to direct any concerted action in the in the election of Hechler and Byrd.
Justice Byron R. White: But they must have -- but people like that must have intended to have their acts have some impact on something besides Okey Hager.
Mr. David Ginsburg: Well, we’ve --
Justice Byron R. White: Because they were voting for a slate may necessarily, necessarily, were falsifying the returns in a Federal election.
Mr. David Ginsburg: Mr. Justice White, we have played with this necessary and probable consequences of their intended act and we’ve tried to analyze it in those terms but the reality is, as this record shows, the transcript, the 2000 pages of it, that these people were concerned with something real to them and that real was this County Commissioner Judge.
Justice Byron R. White: That maybe so but a very real impact -- there was a very real impact flowing from their acts in the Federal election too.
Mr. David Ginsburg: No, we --
Justice Byron R. White: Just as many votes were falsified in the Federal election as it was in the State.
Mr. David Ginsburg: But the conspiracy was not directed against the -- for federal office.
The only conspiracy that was shown in the record was a conspiracy that was limited to the local office.
Justice Byron R. White: For the one colloquy --
Mr. David Ginsburg: The burden of proof was on the Government nothing is shown of that.
Chief Justice Warren E. Burger: The one colloquy in footnote 11 or 12 would seem to be cutting across that somewhat where the man said he was assured that if they got the County Sheriff, the County Prosecutor, and the County Judge then nothing could happen to them, i.e., if there was any fraud beyond that, all the people in the State level, the local levels to deal with these problems were their men.
Mr. David Ginsburg: That was clearly the assumption and that the -- but the issues with which they were dealing -- the only issues with which they were concerned and indeed the only issue that was involved in the election contest was what?
Okey Hager is the County Commissioner.
These were their concerns.
They had no concern in their own interest in the problem of the Senate or the House --
Chief Justice Warren E. Burger: Some of them did made their testimony.
Mr. David Ginsburg: Well, but only as individuals not as conspirators.
This is the -- I think the central issue.
Justice Thurgood Marshall: Were some of the votes illegally cast for Federal officers?
Mr. David Ginsburg: Clearly some votes were cast for Federal office by man named Elswick who actually pulled the lever --
Justice Thurgood Marshall: Was he part of the conspiracy?
Mr. David Ginsburg: He was a member of the -- one of the conspiracy.
He was a co-conspirator, actually not a defendant with given immunity in this case and the issue is whether he took his instructions from Hager who was one of the defendants or whether he took this instructions from conspirators as such.
Chief Justice Warren E. Burger: Thank you, Mr. Ginsburg.
Thank you, Mr. Wallace.
The case is submitted.