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lot-box the ballots of qualified electors. The committee find that throughout the State, as far as their investigation extended, and without exception in one or the other forms which the laws permitted, the Republicans were either deprived of the opportunity to cast their ballots, or the ballots, when cast, were changed or destroyed whenever and
wherever it was deemed necessary to serve the purposes of the Democratic party. To designate the elections of August and November, 1876, in Alabama, as elections by the people, io so far as the purpose of an election is to indicate the choice or will of the people, would be an abuse of the term.”
And affiant avers that the condition of affairs in his district, as above described, has continued to be the same as reported by the said several committees, and was the same at the election of November 2, 1880 ; and that this an investigation of the said pretended election of contestee will fully show.
A. A. MABSON. Sworn to and subscribed before me this third day of February, A. D. 1882.
A. S. TAYLOR,
Notary Public To the honorable the House of Representatires of the United States :
As supplemental to the affidavit heretofore by him made, and now before your Committee on Elections, in the case of Mabson vs. Oates, affiant states that he used due diligence in taking testimony during the time allowed him by law; that he commenced taking testimony only a few days—to wit, seven days-after his time for taking testimony began to run, and long before his testimony in Lee County was taken : that his earlier testimony is not before you because of the detention thereof by H. H. Smith, as stated in his former affidavit; that the counsel for contestee consumed the time of contestant in taking testimony by asking his witnesses needless and irrelevant questions, for the purpose of taking up his time, in many instances willfully consuming three or four hours in cross-examining his witnesses, when a few minutes were all that was actually necessary for any legitimate purposes of such examination; that crowds of white men, supporters of contestee, would be constantly at the places where his witnesses were being examined, and would by their boisterous conduct purposely embarrass and intimidate his witnesses, who were all colored men ; that it is the custom of trade in Bullock County, in his district, for the merchants to give to the farmers credit for supplies furnished, but when the witnesses for contestant were at Union Springs, in Bullock County, for the purpose of testifying, many of these merchants refused to give credit to those whom they had formerly credited, because they were witnesses for contestant, and would refuse the same and tell them to return home and not be fooling about politics, and to go to contestant for money which they might need; and that contestant was greatly embarrassed by having to supply the necessities of so large a number of witnesses, as it was intended by the said merchants, by their refusals as aforesaid, that he should be. Affiant was obstructed in taking testimony in Henry County, iv his district, first, by the statement of contestee made to him at Opelika, in Lee County, that some of the young men in Henry County, his nephews among them, had banded together for the purpose of driving him out of Henry County if he should go there to take bis testimony, but that contestee discountenanced such proceedings and tried to dissuade them, but did not know whether he could control them or not.
Secondly. That J. T. Kitchen was present at the election at Columbia precinct, in said county, and could prove by his testimony that he saw the managers of election at said precinct, who were all Democrats, changing the ballots after they had been cast, by substituting for ballots actually cast for contestant fraudulent ballots for contestee, but that said Kitchen, as affiant believes and charges, to prevent his testifying for affiant, was arrested on a false charge, and confined in jail until after affiant's time for taking testimony had expired, when he was released and the prosecution abandoned.
Affiant pow states upon oath that he never at any time said to one John T. Ware, or to any one, that he was making this contest for the purpose of making money, nor did he ever state to any one that he knew he had been defeated in the election. On the contrary, contestant states that he is not induced by any hope or expectation of receiving money in making this contest, but that he prosecutes the same wholly froiu a desire to fulfill a duty which he owes to those who voted for him, and who were deprived of the lawful benefit and results of their ballots cast by fraudulent acts on the part of officers of the election in failing to count and return the ballots cast for him, and in substituting therefor ballots cast for contestee. Affiant states that he has always believed since the election, and now believes, and so avers, that he was actually elected and contestee defeated by the lawful votes cast for him on the day of election.
Affiant states if he were allowed sufficient further time in which to take testimony, he could prove to the best of his knowledge and belief the following facts:
That in four precincts in Lee County, in his district, three hundred and ten votes which were cast for him were fraudulently counted for contestee; tbat is, in precinct
No. 4, 71 votes; precinct No. 5, 100 votes; precinct No. 6, 50 votes; and precinct No. 9, 75 votes.
That in four precincts of Russell County six hundred and seventy ballots cast for him were fraudulently counted for contestee, to wit: Precinct No. 3, 100; precinct No.5, 100; precinct No. 7, 240 ; and precinct No. 10, 230 votes.
That in four precincts of Henry County, two hundred and ninety votes which were cast for him were fraudulently counted for contestee, to wit: In precinct No. 1, 50 ballots; precinct No. 4, 150 ballots; precinct No. 12, 50 ballots; and precinct No. 13, 40 ballots.
That in five precincts of Barbour County nine hundred and forty-two ballots which were cast for him were fraudulently counted for contestee, to wit: Precinct No. 1, 167 ballots; precinct No. 2, 200 ; box No. 1, precinct No. 4, 125; box No. 2, precinct No. 5, 350 ballots; and box No. 3, precinct No. 5, 100 ballots.
And affiant avers that in the elections in all of said election precincts the managers and returning officers were wholly and entirely members of the political party to which contestee belonged, opposed attiant's election, and favored the election of contestee. Aftiant avers that in Bullock County eighteen hundred and eighty-seven votes were cast for him, and four hundred and thirty-six for contestee, which the county board of canvassers refused to count, upon the return made by them, in estimating the result of the said election in said county, on the ground that the poll-lists accompanying the returns from the precincts were not signed--the same being not a lawful reason for their refusal to count and estimate these votes in ascertaining the result.
Aftant avers that on election day more than eight hundred lawfully qualfied electors, desiring and intending to vote for him, were present at the polling place for the precioct commonly known as Seals Station precinct, in Russell County, but that the opening of the polls in said precinct was prevented by violence and intimidation on the part of the friends of contestee, who desired to prevent an election in said precinct, because of the large majority there for contestant. Aftiant avers that 138 votes from Hilliardsville precinct, in Henry County, and 72 from Hicks' Shop, in said county, were unlawfully counted for contestee, no lawful or sufficient return being made thereof from which the county board of canvassers could estimate the same.
Attiant submits that he has proved the facts alleged in relation to precincts No. 9, 4, and 6 in Lee County, by his testimony already taken. The vote, as certified by the secretary of state, at said election was for contestee, 10,614; for contestant, 5,636 ; but the allegations aforesaid show that there should be added to contestant's vote and taken from contestee's inLee County.
296 Russell County.
670 Henry County
290 Barbour County.
.... 2, 198 That there should be added to contestant's vote the votes not counted by the county board of canvassers in Bullock County, 1,877, and to contestee's, 436.
That contestant is entitled to 800 votes from Seals Station precinct, as aforesaid.
That contestee is not entitled to 215 votes counted for him in Henry County, as aforesaid.
This would make the actual result of the ballot cast in said election to be as follows:
Showing the true result to be a majority of votes for contestant of 1,869 votes which aftiant verily believes to be substantially correct.
A. A. MABSON. FEBRUARY 14, 1882. Sworn and subscribed to before me this 14th day of February, 1882. (SEAL.]
THOS. J. MYERS,
Notary Public. H. Mis. 35 -2
JAMES Q. SMITH vs. CHARLES M. SHELLEY.
FOURTH CONGRESSIONAL DISTRICT OF ALABAMA.
Contestant charged fraud, ballot-box stuffing, and conspiracy on the part of the party
friends of contestee, and the illegal rejection of returns. Held, That returns rejected because signed by the mark (X) of the inspectors, the same
should have been received and the vote counted. Ballot rejected and not counted because deposited in a cigar-box, on account of the
failure of the proper officers to provide the usual ballot-box, or blanks for returns,
should be counted. Where one who had been appointed an inspector of election refused to act, although
present, and after the closing of the polls he appears in the room and claims and takes the ballot-box containing the ballots and puts it in a satchel, and such person being remonstrated with hands back another box containing different ballots which are counted, the returns from that precinct are corrected as the votes are
proven to be by the evidence. Where the inspectors of election failed to appear and open the polls, and there are no
blanks or ballot-box provided, and the citizens then organize, and a list of the voters present is taken, and an expression of preference from each as to his choice for Representative in Congress, a return thereof is refused and not counted, because no polls were in fact opened and no ballots actually cast.
The House adopted the majority report, and contestant having died the seat was declared vacant.
JUNE 27, 1882.-Mr. W. G. THOMPSON, from the Committee on Elec
tions, submitted the following
The Committee on Elections, to whom was referred the above-entitled con
tested election, have had the same under consideration, and submit the following report:
James Q. Smith and Charles M. Shelley were opposing candidates for a seat in the Forty-seventh Congress, from the fourth Congressional district of Alabama, at the November election held on the 2d day of November, 1880.
By the returns of said election, as certified to the secretary of said State, it appears that Mr. Shelley received of the votes 9,301, Nr. Smith received of the votes 6,650, showing Mr. Shelley's majority to be 2,651.
On the 3d day of December, 1880, Mr. Smith caused to be served upon Mr. Shelley a notice of his intention to contest, as the law provides, as shown by the certificate in record, page 26.
In this notice of contest it was alleged by contestant that fraud, ballot-box stuffing, and conspiracy between the partisan friends and supporters of contestee had been resorted to, by means of which he was defrauded out of his election, and that as a matter of fact a large majority of the votes cast at said election were cast for contestant and that he was duly elected, and specifically charged that these frauds had been practiced in the several voting precints in the counties of Hale, Perry,
Lowndes, Dallas, and Wilcox, and which precincts will hereafter be named in order. The contestee filed his answer denying all the charges set forth in the said notice, thereby making it incumbent upon the contestant to establish by competent evidence the truth of his allegations.
Mr. Shelley, having received the certificate of election, was admitted to his seat when the Forty-seventh Congress was organized, and lias been during the pendency of the contest the sitting member and still retains the same.
It appearing upon the face of the records, as before stated, that Mr. Shelley haring received a majority of 2,651 of the votes cast, contestant must by proper evidence overcome this majority and show fraud through which he was deprived of the votes necessary to make such change.
It is deemed proper to call attention to the condition of this district, so far as population, color, and political proclivities are apparent, not only now but from the time the district was first organized, and this is shown by the evidence.
When the Democratic party came into power in 1874 the work of reorganizing the Congressional districts was speedily commenced, the object being to make all the districts Democratic. After the most laborious and careful investigation of this matter, it was found impossible to do so, and it was then considered best to put into one district all the large Republican counties adjoining each other, to be called the fourth Congressional district of Alabama. The acknowledged Republican majority in Dallas County was, at the State election of 1874, 4,957 ; in Hale County, 2,304; in Lowndes County, 2,953; in Wilcox County, 2,126; in Perry County, 2,606, making a clear Republican majority in the district of 14,946 votes. At the Presidential election in 1876, Hayes, Republican, received a majority over Tilden, Democrat, of 9,446 votes, and in the same year in the State election, Woodruff, Independent, receiving Republican support, had a majority over Houston, Democrat, for governor, of 9,115 votes. In the Congressional election of the same year, Rapier, running as the regular Republican nominee, and Haralson running as a bolting candidate (both persons of the negro race), the joint majority over Shelley, Democrat, was 6,256 votes. The census returns of 1880 sliow that there are now in the counties composing the district 135,881 persons of the negro race and 32,855 white persons, disclosing a very large increase of the negro race, so that on a calenlation it may be assumed that there is, in fact, now a majority of 18,000 negro Republican voters over white Democratic voters in the district. The proof made by the contestant in this contest clearly shows that from 95 to 974 per cent. of the negro electors cast a Republican ballot for Republican candidates in said district when permitted to do so.
And in fact these considerations give emphasis to contestant's declarations in argument
The South was to be made solid, and the fourth district must be, and was, captured to accomplish this much to be desired end. The negro electors of the fourth district are now as successfully deprived of the elective franchise as when they wore the chains of slavery, were sold at the auction block, and their backs quivered at the overseer's lash.
This is the language of a citizen of the State of Alabama since his early boy hood-a man who has held high positions of honor and trustthe contestant in this case, and made in the light of the facts he has presented in bis evidence in this contest.
The evidence adduced by contestant shows that in Mitchell's voting precinct, in Dallas County, he bad cast for him 360 votes and for contestee 1 vote. This vote, although returned and delivered to the proper
officer, was rejected, and the supervisors refused to open or count the ballots, for the alleged reason that the statements made by the inspectors were not signed. The same objections were made to the returns from many other precincts, when in fact they were signed, but frequently the parties signing the same did so by making their mark, and this is legal even under the laws of the State of Alabama. (See title 1, chap. 1, Code of Alabama. Sec. 1.-signification of words : “Signatures or subscription includes mark when the person cannot write, his name being written near it and witnessed by a person who writes his own name as a witness.”)
And your committee cannot escape the conviction, from the testimony, that a thoroughly organized and preconcerted plan and purpose had been made and understood by and amongst the Democratic partisans and supporters of Mr. Shelley, that in all the precincts where the Republican majorities were large and Democratic voters very few that the Democratic inspectors of such precinct should fail and refuse to open the polls on the day of election, and thereby leave the work of so doing in the hands of colored voters whose education was such as to make it quite probable that some clerical error would occur, so as to furnish an excuse for rejecting the box entirely.
Strong corroborative evidence of this is found in the further fact that the county supervisors refused to appoint any Republican in such precincts selected by the Republican county committees, but invariably selected one who was unable to read or write, or who, however honest in intention, would not be competent to make out the required returns in a proper and legal manner, or technically correct in all particulars, and the evidence conclusively shows that the Democratic supervisors, composed of the sheriff, probate judge, and clerk of the court of the county, did not fail to find a pretext for refusing to count such boxes, where, by sacrificing one vote for the Democrat, they would destroy 360 for the Republican. This the committee, however much they may admire the heroic effort for a fair rote and honest count, cannot in this case allow the sacrifice.
The testimony in support of this is found as follows: B. Hatcher, pp. 56-59; Lot Thomas, pp. 111-113; Berry Moore, pp. 113, 114; Geo. F. Beach, pp. 100-104, 375–378, and Ć. Duke, pp. 147, 148.
B. F. Hatcher, supervisor, returns as follows:
U. S. supervisor's return of votes cast for Representatives in Congress from the 4th Congres
sional district of the State of Alabama, at precinct or poll No. 35, commonly called Mitchell's, in the county of Dallas, on the 2nd day of Norember, 1880.
I, the undersigned, supervisor of election, appointed by the circuit court of the United States, hereby certify that the foregoing returu is true and correct. Witness my hand at Mitchell's, Ala., this 2nd day of November, 1880.
BEN. F. HATCHER,