Mr. WARE (interrupting). Would it be possible for you to meetMr. CHAVEZ (continuing). If Monday or Tuesday, whenever your next meeting date, we could at that time probably be ready to submit them.

Mr. WARE. Would it be possible for you gentlemen to review these, say, by tomorrow afternoon at 1 o'clock and have some of your rep resentatives here at that time to go over these stipulations and sign them at that time?

Mr. HANNETT. I think we can. Some of us would be back here tomorrow.

Mr. WARE. It would be necessary for you, Governor, and Mr. Adams to be here for the signing. Anyone else it is not particularly necessary. Mr. CHAVEZ. Won't we agree as to what we are going to stipulate to? They probably would be signed by the time we submitted them to you? Otherwise we will submit those we think satisfactory and give you the reasons why we can't stipulate as to the others.

Mr. WARE. When would you want to do that?

Mr. CHAVEZ. I think you should give us until Monday, until we meet Monday or Tuesday. We are going to have our general meeting. Chances are that we will stipulate to everything that we have agreed to, but like Governor Hannett says, we want to check them carefully. Mr. WARE. We want you to have all the time in the world to do it. Is that satisfactory with you, Mr. Adams? Give these out and let us have them on Monday.

Mr. ADAMS. Yes. Might I ask, Mr. Ware, what other matters do we need to cover at our next conference?

Mr. WARE. I want to cover at the next conference-Mr. Hannett I believe has certain objections to the procedure of the recount. At that time I would like to start on that for Monday, is that satisfactory? Mr. HANNETT. Yes.

Mr. WARE. In the interval I wish you would think over the things we discussed today and if there are any other things you want to change your mind on, we can stipulate at that time. In addition to that we will have any stipulations that were agreed today prepared for submission to you at that time. Is that satisfactory?

Mr. ADAMS. Yes.

Mr. CHAVEZ. Yes.

Mr. WARE. Is there anything else that anyone wants to take up at this time? Mr. Adams?

Mr. ADAMS. I don't think of anything.

Mr. WARE. Governor Hannett?

Mr. HANNETT. Nothing.

Mr. WARE. We can adjourn subject to your receiving the stipulation. Wait 5 minutes, we will have those ready for you to take. We will meet 9:30, Monday right here, same place.

(Whereupon, the meeting was adjourned until 9: 30 a. m., Monday, May 11, 1953.)

SENATOR FROM NEW MEXICO

MONDAY, MAY 11, 1953

UNITED STATES SENATE,

SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS OF THE
COMMITTEE on Rules anD ADMINISTRATION,

Albuquerque, N. Mex.

The conference continued at 9:30 a. m. at 142 Monroe NE., Albuquerque, N. Mex., Wellford H. Ware, chief counsel of the subcommittee, presiding.

Present: Wellford H. Ware, chief counsel, Subcommittee on Privileges and Elections.

Also present: A. T. Hannett, Esq., chief counsel, Samuel Z. Montoya, Charles C. Spann, and Mike Gallegos, all representing the Honorable Dennis Chavez, Senator from New Mexico; and Quincy D. Adams, Esq., chief counsel, Wilson Patrick Hurley, and Steve Alex, all representing the Honorable Patrick J. Hurley.

MORNING SESSION

Mr. WARE. Gentlemen, I believe at the last conference it was decided that at this conference we would consider the stipulations and sign them. Have you gentlemen had an opportunity to look over the stipulations?

Mr. ADAMS. Yes.

Mr. HANNETT. We have and we would like, at this time, to go over them in detail. There are many that we agree to and some that we want to modify and so forth.

Mr. WARE. All right.

Mr. SPANN. Would you like us to point out, give our comments concerning these, and our objections and so forth first

Mr. WARE (interrupting). Yes; I would like to know the ones you object to.

Mr. SPANN. Well, first as to the stipulation agreeing to stipulate, we feel that the stipulation should not be binding until approved by the subcommittee. We would like that to be clear that we will stipulate and agree to the stipulation, subject to the approval of the subcommittee, and upon their approval they shall be binding, prior to that time they are not.

Mr. WARE. Don't you think that is a rather impractical approach? For example, if during the course of the recount, stipulations are entered into, on the basis of the stipulations ballots will be examined. Should not those ballots, the decision on those ballots based on the stipulation be binding in the interval until they are approved by the subcommittee? Otherwise, we are going to have to go back and change

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them. We can say it is a practical matter, that all the stipulation would be just a formal matter of approval by the subcommittee.

Mr. SPANN. We feel there is just as much chance that the subcommittee will not approve them and we will have to go over the territory again. If there is someone here to approve them for the subcommittee and we would know they would be binding, we would have no objection. The contingency upon the subcommittee's approval opens the way for additional work in any event, because if they don't approve we are going to have to go back over the same ground. We ought to know when we start out, pursuant to a stipulation, that that is it. No contingencies, in other words, that might change it. Mr. HANNETT. It could be airmailed to Washington and returned in 3 or 4 days.

Mr. WARE. Mr. Adams, do you have any comment on that? Mr. ADAMS. No: I have no objection to the stipulation as it is, and, of course, I would have no objection to the other procedure. It doesn't matter to me.

Mr. SPANN. One other point

Mr. WARE (interrupting). If the subcommittee authorizes this particular procedure then it should be binding. In other words, if they agree they should be binding pending their approval, their formal approval, then it will be binding on all parties in any event.

Mr. SPANN. Then they ought to authorize you, as chief counsel, to sign, and that will be that.

Mr. WARE. That is something we will have to work out with the subcommittee.

Mr. SPANN. We feel that is the way it ought to be done.

Mr. WARE. I could say this, as a practical proposition, I do not believe that they will interfere in any way with any stipulation that you make as far as the law is concerned. As to the procedure, yes, but as to substance of the law of New Mexico, no.

Mr. SPANN. Well, we understood that we would be furnished rules of procedure by the subcommittee that would bind us, prior to the beginning of this recount and contest.

Mr. WARE. That is correct.

Mr. SPANN. There isn't a possibility of a change there, so we feel that upon your signing in behalf of the subcommittee they ought to be binding. If it takes the further approval of the subcommittee before it is binding, we ought to get that first.

Mr. WARE. Are you referring to the first page of the stipulation? Mr. SPANN. Yes.

Mr. WARE. In any event, I have no authority to proceed until the stipulations are approved by the subcommittee.

Mr. SPANN. Therefore, this is more or less of an acknowledgment of the signing of the stipulations, and, of course, is not binding until this first group is approved. This goes more to the situation where we are actually in the recount of the ballots and we come to some agreement as to the substantive law in some particular respect. Then, at that time, I think it should be binding.

Mr. WARE. AS Í say, it is a practical proposition. I believe the subcommittee will approve of this procedure.

Mr. SPANN. Well, is our position clear on that?
Mr. WARE. Yes; I think your position is clear.

Mr. SPANN. All right. One other thing, when we were considering this first stipulation, was that you provide they be approved by the subcommittee. We feel that contingencies may arise where it will require modification or change of the stipulations. I assume that they can be changed by further stipulation?

Mr. WARE. By additional stipulation, certainly.

Mr. SPANN. That is right. In other words, it isn't like passing a statute?

Mr. WARE. We are not going to get into a recount and start in Bernalillo County and say, for instance, about your crossmark in the circle and change that stipulation. That would not be justice and it would not be a good thing.

Mr. SPANN. That brings up another question which might arise. The supreme court is now considering that very point in a decision as to whether crossmarks are the only legal mark, or whether a tick mark may also be considered a legal mark. Supposing the supreme court should determine that tick marks are also legal and another form of mark, other than a cross? I presume our procedure would be modified by something like that, wouldn't it?

Mr. WARE. Possible; yes.

Mr. SPANN. That is what I am getting at when I say, "binding forever." Things may arise that would change that.

Mr. WARE. Certainly. What we have reference to is this, where we have no good valid reasons for changing. It won't be done capriciously.

Mr. SPANN. If we want to agree to change it then it could be done. To proceed to stipulation 1. We feel that that stipulation, as drawn, is not clear. We have a suggested alternative stipulation that we believe is clear. With your approval I will read that. We have provided this, as follows:

The subcommittee shall determine and furnish to counsel the rules of procedure governing proceedings before the subcommittee. The subcommittee shall apply the laws of New Mexico in determining the various issues in the contest and in the recount; the laws of New Mexico to be determined by the State constitution, statutes, and decisions of the supreme court interpreting the same. Mr. WARE. Off the record.

(Off the record.)

Mr. SPANN. We redrew that to prevent any argument coming up as to the distinction between substantive law and procedural law. The law is procedural in that it sets up procedures for voting and that sort of thing. We don't want any misunderstanding that portions of the code could be eliminated because it is procedural law and not substantive.

Mr. WARE. Don't you think it is possible to distinguish, without debate and argument, as to what is procedural and substantive? I think you will find a legion of cases throughout the reports citing the questions of procedural and substantive law.

Mr. SPANN. As we understand it, the procedural law which is to be applied to the proceeding before the subcommittee are the rules of procedure which the subcommittee furnishes us. That goes to the formality of our motion before that committee, the appearances in arguing those motions and that sort of thing. But, as far as the contest itself and the recount is concerned, the New Mexico laws gov

ern and that is what we want made clear. That is what we believe we have done with this modified stipulation.

Mr. HANNETT. In other words, the procedure for this hearing laid down by the committee governs. We have to abide, but when it comes to the procedure by which elections are called and held, that should be binding, the same as the statute, that is our view. For instance, a voter has to register within a certain time, and the various rules for qualifying, by registration and the steps taken by the canvassing board, the county commissioners, the election officials and all that, our statutes would prevail.

Mr. WARE. Mr. Adams, can you comment about this proposed amendment?

Mr. ADAMS. I see nothing wrong with the stipulation as drawn. It seems to me that it is all right this way. Now, if it is intended to try to distinguish procedural law from substantive law, I think we should do that in a separate stipulation, or add on to this one. I think it would require a little study on my part to determine whether or not the proposal that is made by the contestee would do just that. Mr. WARE. Could you furnish us with copies of your proposed stipulations?

Mr. SPANN. Yes, sir..

Mr. WARE. Can we pass on to another one at this time?

Mr. ADAMS. Do I understand that the stipulation as drawn is satisfactory with the exception that you want to make it clear as to what is substantive law and what is procedural law?

Mr. SPANN. It is not satisfactorily drawn because in our opinion it is not clear.

Mr. ADAMS. That is the only objection?

Mr. HANNETT. Yes; that is the only objection.

Mr. SPANN. Stipulation No. 2, we have no objection to that. There was one point made as to what would happen with those machines that have been turned back. I assume that will be taken care of by a subsequent stipulation as to the use of the pollbooks, or the election returns are to be the first evidence.

Mr. WARE. I think we have a stipulation to that effect.

Mr. SPANN. We have no objection to No. 2. We have no objection to No. 3. We have no objection to No. 4. No. 5 we have modified. I believe there should be no objection to that. The reason for it is that 56-378 provides:

The number of votes cast on a voting machine exceeding the number of voters appearing in the corresponding pollbook or list containing the names of each voter, kept for the purpose of recording ballot numbers, as provided for in section 56-378 NMSA 1941, shall be deducted from the total number of legal votes cast for the contestant and contestee in the same proportion which each received of the legal votes cast in the precinct.

We felt that in those precincts there may not be pollbooks, but lists under the statute kept for that purpose:

The number of votes cast on the voting machine exceeding the number of voters appearing in the corresponding pollbook or lists containing the name of each voter, for the purpose of recording ballot numbers, as provided in section 55, shall be deducted

and so forth. It is merely to include the list that the statute provides for in lieu of the pollbook. It is for the purpose of clarification, that is all. If that is included we have no objection.