Judge John McKinney’s argument in the election contest against the vote at Agua Poquita was a repeat of the affidavits submitted to Gov. Sam Houston. Most of these affidavits attacked Precinct 9 voters individually as being illegal, living in Mexico or on the Río Grande, being too young, already dead, not being present at the polls on the day of the election, having similar names to others, etc.
O’Connor’s witnesses countered that there was no way those men could know every Mexican man in the county and their legal status. Although not part of the court case, the Ranchero had earlier offered similar facts. In an October 6 piece advocating the adoption of a voter registration law, the newspaper wrote, “there are many Mexicans who are entitled to vote, and understand the principles and wordings of our government, as well as any Americans.” Before the election, continued the newspaper, everyone makes a pitch for the Mexican vote; “those who get it are satisfied but those who don’t cry fraud and corruption. Those who didn’t get this Mexican vote are then of course ‘immaculate’.”
In his amended answer, Joseph O’Connor charged McKinney with paying large sums of money to a number of individuals,
…for the purpose of securing for said defendant the whole of the votes of the people of Mexican origin within the counties of Nueces, Duval, and Encinal…Thus the defendant sought his election to a high judicial station by bribery of voters and by wantonly corrupting the purity of the ballot boxes in contravention of law, good morals, and public policy…
The Victoria district court ruled in favor of O’Connor, but McKinney promptly appealed to the Texas Supreme Court. The high court heard the appeal in November 1861 and overturned the lower court, reinstating McKinney to the bench.
The Supreme Court distilled the core of McKinney’s argument to “not only upon the ground of illegality and fraud in holding the election…but also upon the ground, that but few of the men whose names appeared upon the returns as having voted…were actually present, and that most of those present were not entitled to vote.” The court relied heavily on depositions submitted by some eleven McKinney witnesses.
“This evidence is circumstantial for the most part,” read the court’s opinion. Indeed, the court reviewed each deposition; they all contained phrases to the effect that the witness “think” or “believe” that certain number of voters were legal and others were not and that it was not possible for so many legal Mexican voters to reside in Nueces County. Not one voter was interviewed or cross-examined at any stage of the case.
The high court questioned why O’Connor had not brought forth witnesses, such as Blucher and Lovenskiold, who could have attested to what had transpired at Precinct 9 and who had been present. Their direct first-hand testimony would have been crucial to proving O’Connor’s case. This lack of direct evidence troubled the court, but the court felt it “must decide the case as we find it.” Curiously, the court did not require that those testifying on McKinney’s behalf have the same firsthand knowledge of the events at Agua Poquita.
The case for the court turned on the answer to a question of fact – “were there illegal and factitious votes enough embraced in these returns to change the result of the election, and does the evidence satisfactorily establish it?” The court resorted to a somewhat unconventional approach and used the “combined knowledge” of all the witnesses, including one of O’Connor’s witnesses, to determine that no more than ninety legal votes could be ascertained. This raised for the court the “presumption” that the returns from Precinct 9 were fraudulent and false. They concluded, “as a matter of fact, from the evidence adduced on the trial, that McKinney received the greater number of legal votes…”