to present the facts and be confronted by witnesses and have an opportunity to cross-examine and all those protections thrown around any person's right.

As I understand Senator Barrett's letter, it is the position of the committee that neither the contestant nor the contestee has

any rights. The only person that has any rights, and the only rights to be considered, are the rights of the people.

Well, we agree with that. The Constitution of the United States didn't empower the Senate of the United States nor has the Congress of the United States ever attempted to pass laws setting up machinery for elections. That has been left to the States. And if we are going to bring any law or proceed under law-and I concede this is a government of laws and not a government of men-then if we are going to proceed under any law, it should be the law of the State and all the law.

Now, coming to the argument cited by Mr. Gilbert about what occurred at the canvassing board, I would like to quote into the record the decision of the canvassing board verbatim, and may I say that a Republican Governor who was elected the same election, a chief justice of our supreme court, and the secretary of state comprise our canvassing board. They were advised by the attorney general's office. And here is what they decided:

1. With respect to irregularities in the precincts upon which the parties were asked to agree, and upon which some agreement has been indicated, the board adopts the position that it is not necessary to recall any of the officials, as it has sufficient information from the returns submitted to it to canvass the reurns as submitted.

2. With respect to the question of oaths in the pollbooks and tally books, the instructions in 53-319 do not prescribe any form of oath; 56-317 says that the signing of these constitutes an oath, but by law the poll clerks are required to take an oath before assuming their duties and the board accepts as a fact that the officials representing all major political parties at the polls have complied with the law in that respect. The board feels that no recall of officials is necessary because of this claim.

3. With respect to the few precincts in which there appears to be either no tally, but the figures are given in the county canvass, or merely set forth in the certificate, the board knows that in those precints the list of those precincts and the results are as follows

They name all the precincts that have been challenged by Mr. Hurley's counsel and set forth the results in each precinct and then go on to say:

The board sees no necessity for a recount in these precincts. The board does not believe that it is precluded from referring to the county certificate for such information as necessary, and including such information as may be contained in the county certificates in arriving at its determination.

4. It is entirely possible that some nonregistered voters may have voted in some precincts. The board, while permitted to refer to the duplicate registration list, is not required to check the name of every voter appearing in the pollbooks against such list of voters, and that task would be so huge as to be almost impossible to perform. The board notes, however, that any interested party may call the attention of the board to voting by nonregistered voters, but the law precludes the board from referring any precincts in which nonregistered voters may have voted for recount unless the results thereof could affect the results of the election. Nobody in interest has at any time during the proceedings of the board informed the board as to any voting by nonregistered voters, and therefore there is no necessity for the board to take any action with respect to any such irregular voting, if in fact it occurred.

5. The board notes that in connection with the canvass, it has canvassed the returns from every election district in the State of New Mexico, as well as the

returns submitted to the board by all of the county canvassing boards of the State of New Mexico, and the board, in declaring the results of this and other elections, has attempted to discharge the duties imposed upon it by the constitution of the State of New Mexico and the election code of the State of New Mexico. In arriving at its declaration, the board is mindful of the fact that a canvassing proceeding was not intended to be some interminable process in which no conclusion was ever to be reached, and that the framers of the constitution and the legislature had in mind that the board should certify the results of the election and issue certificates to those who appeared to have a plurality of the votes cast. The board is mindful of an observation made by the supreme court of the State of New Mexico in the case of Reese v. Dempsey (48 N. M. 417) at page 431:

"So here, being mindful of the admonition to be found in the constitution (art. 7, sec. 1) that the legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections and guard against abuse of elective franchise, and the constitution having selected high State officers, the chief justice, governor, and secretary of state to canvass and declare the result of elections for State officers (sec. 2, art. 5), and the legislature having made an elaborate effort to comply with the constitutional mandate above referred to, we are not inclined to 'chop technicalities' to the end that the broad purposes and legislative policy manifested by the acts, as here construed, may be defeated; or that the powers and duties of the State canvassing board may, by strained definition, be tramped into such narrow compass that it cannot function in the public interest."

At the time the canvassing board ruled, counsel for Senator Chavez asked the following questions and received the following from Governor Mechem.

Mr. HANNETT. May I inquire whether, in all these irregularities, there is any indication there was any difference in the Chavez-Hurley race than any other? Is there any showing of any series of errors in the Senate race?

Mr. COONEY. I think that every member of the board would agree that there is no pattern to be found anywhere.

Governor MECHEM. The only wide variance we found any place were instances where they had forgotten to carry over in their certificates, say 100 straight ballots in some races. Generally those were in the presidential electors, or where they had added those straight ballots twice. Those are the only instances where there were any wide variances at all.

Mr. HANNETT. There is nothing apparent, throughout these returns, to indicate any scheme of fraud?

Mr. COONEY. No; there is nothing here.

I think that correctly defines the attitude of the canvassing board. And I do not think this action of the board can be successfully challenged.

I have no further remarks to make at this time unless the members of the committee desire to question it.

Mr. Grantham, do you have anything?

Mr. GRANTHAM. If the committee would permit me, I would like to merely answer one thing that Mr. Adams said.

It seems to me from his statement that he admits we need particulars in this petition. He seems to think just a general allegation, unsupported by facts, is enough to start the wheels in motion in the United States Senate. It is at least a tacit admission, they say it would be difficult to give particulars. Certainly as to the 42 in one paragraph and the 120 in another, or 125 in another precinct. They certainly have some idea about which of the 900 precincts in New Mexico they are talking about when they filed the petition. There is a case from Colorado from which I would like to quote a couple of paragraphs. It is Gray v. Huntley (77 Colorado, 478, and 238 Pacific, 53):

The court said this:

To order the opening of ballot boxes in every election contest, and to order a recount of the ballots in every case merely because it is asked, without a proper basis therefor, would invite a contest after every election, no matter how honestly and efficiently conducted. It would discredit, without cause, the certificates of sworn election officials, and make a farce of their labors. There must be a groundwork or basis for the contest in its incipiency.

The election-contest statutes are not to be regarded as mere fishing licenses for contestors to ascertain the correctness or incorrectness of their statements of contest, nor only as rod and tackle for venturesome sportsmen to hold in their hands and whip an unpromising stream of adverse ballots, in the hope of landing a mess of frauds and errors for their waiting skillets.

That is exactly what the petition in this case is. It is a fishing expedition in the hope of landing a mess of frauds and errors for their waiting skilletts.

Certainly Governor Hannett provided a bill of particulars in the Cutting-Chavez contest. Certainly we are entitled to no less than that in this case. And certainly when counsel for General Hurley prepared the petition, they should have known what precincts they had in mind when they named approximately so many or a certain number, as they did in paragraph after paragraph.

Senator BARRETT. Mr. Adams, do you desire to add anything?

Mr. ADAMS. There is only one thing I would like to comment on in the argument just made by Mr. Grantham about a fishing expedition. Again, I would like to refer to the memorandum brief of Governor Hannett in the Chavez-Cutting case. And here is what he said there:

We submit that Senator Cutting should not object to a fishing expedition if bis skirts are clean, but should welcome rather than endeavor to stifle this contest, particularly as he is the author of a proposed constitutional amendment, heretofore offered before this body, designed to prevent the unlawful use of money in elections.

We are not asking for any fishing expeditions. We are not engaged in one. But certainly no one should object to a fishing expedition, if they want to call it that. I don't think that is what it is. If they want to call it a fishing expedition, however, we certainly have no objection and I don't see why they should object.

So far as furnishing these particulars that have been referred to, mentioned in our petition, naturally we can furnish the 42 precincts or the 125 precincts, if required to. We have already submitted them to the committee. And if the committee wants us to do it, naturally we can. But my point is it wouldn't be beneficial to do that since every precinct is going to be recounted, and strictly scrutinized by the committee with representatives of both parties present. It would just be an unnecessary burden to require us to do that.

Mr. GRANTHAM. May I make one statement, Mr. Chairman?

What Mr. Adams says about the recount would not in our opinion throw light on the question of fraud or illegal acts on the part of any election official. It is a physical counting of the ballots, but still wouldn't answer any questions concerning illegal acts on the part of election officials, illegal voting on the part of anybody, failure to provide affidavits of registration, and matters of that kind. Senator BARRETT. Mr. Gilbert.

Mr. GILBERT. Nothing further, if the committee please.

Senator BARRETT. Gentlemen, do you desire to close your presentation then? Or do you want to use any additional time on the matter of your petition for bill of particulars?

Mr. HANNETT. I think, sir, we have covered all we have to say. (Off the record.)

Senator BARRETT. Gentlemen, we thank you very much for your presentation this afternoon. The committee will take these matters under advisement, and give them consideration, and at some time in the future we will notify you of our decision on these two points.

The committee will stand adjourned at 4: 30 p. m. this afternoon.

SENATOR FROM NEW MEXICO

WEDNESDAY, AUGUST 12, 1953

UNITED STATES SENATE,

SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS OF THE
COMMITTEE ON RULES AND ADMINISTRATION,
Albuquerque, N. Mex.

The subcommittee met, pursuant to call, at 1: 40 p. m., at 142 Monroe NE., Albuquerque, N. Mex., Senator Frank A. Barrett (chairman), presiding.

Present: Senators Frank A. Barrett and Charles E. Potter.

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

Senator POTTER. The meeting will come to order. The other Senators, I assume, will be here very shortly. Mr. Ware, who is your first witness?

Mr. WARE. Mrs.-Miss Florence Platton.

(Whereupon, Mrs. Florence E. Platton, called as a witness, having first been duly sworn, testified as follows:)

TESTIMONY OF MRS. FLORENCE E. PLATTON

Mr. WARE. You are here in answer to a subpena of the Subcommittee on Privileges and Elections?

Mrs. PLATTON. (Witness nodded.)

Mr. WARE. Of the United States Senate? Mrs. Platton, what is your full name?

Mrs. PLATTON. Mrs. Florence E. Platton.

Mr. WARE. And where did you vote on November 4, 1952?

Mrs. PLATTON. Third and Lead, Central School.

Mr. WARE. That would be precinct 27A?

Mrs. PLATTON. Yes.

Mr. WARE. I show you a pollbook, precinct 27A, and I show you the name. Can you identify that name?

Mrs. PLATTON. Not from this; no.

Mr. WARE. Not from this, but that is that is your address?
Mrs. PLATTON. That is my address. And that is my number.
Mr. WARE. And that is your number?

Mrs. PLATTON. Um-humm.

Mr. WARE. All right. I want to show you, also, ballot No. 174. I would like to show you ballot 174. Will you examine that ballot, please, and tell me if there are any-if you made these marks that are on this ballot? Did you make the mark under the name "Antonio M. Fernandez"?

Mrs. PLATTON. That is the one. That is not mine.