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LAGUNA BEACH, Oct. 2, 2001 — Looking back on it, we probably should have seen that deciding the presidency of the United States by playing a hand of five-card stud was not a good idea. But while modern commentators are unanimous in their condemnation of the events that led to the “New Mexico Compromise,” it must be remembered that by August of 2001, the nation was exhausted, and clear political thinking was exquisitely rare. Certainly the original instinct to blame it all on New Mexico has been shown to be unfounded. It is true, as reported by CNN on Nov. 16, 2000, that, “New Mexico statute requires that in case of a tie, ‘the determination as to which of the candidates shall be declared to have been nominated or elected shall be decided by lot.’ In practice, the usual method for this rare event has been to play one hand of five-card poker.” But the fact that New Mexico actually chose a municipal court judge in 1999 by having the two candidates (Republican Jim Blancq and Democrat Lena Milligan) play a hand of five-card stud in the courthouse would not have been considered appropriate precedent had not nine months of wrangling reduced the leadership of both parties to what Bob Woodward would later describe as “a pathetic band of sleep-deprived hunter-gatherers.” Of course, the real shame is that the outbreak of political Ebola in Florida could not be contained there. The fact that elderly West Palm Beach residents perfectly capable of monitoring 15 bingo cards at a time reported they couldn’t figure out how to vote for Vice President Gore should have been dismissed as the usual election-year goofiness (now usually referred to as “Perot’s Syndrome”). But before the necessary carload of common-sense antivenin could reach the afflicted citizens, American television networks, desperate to divert attention from the election-night fiasco in which they batted Florida back and forth between Gore and Bush like it was the shuttlecock in some huge post-Olympic badminton game, were reporting that the election was “too close to call” and broadcasting West Palm Beach psychosis all over the country. It has never been determined whether it is true that ABC president Robert Iger actually said, “What a bonanza! We can stretch this election out until it’s the longest running series since . . . well, since ‘Bonanza,’ ” but there is certainly evidence to support the common perception — even now, a year after the fact — that the networks were in no hurry to see Florida resolved. More than one commentator has remarked on the fact that ABC’s “ Too Close to Call, America Held Hostage, Day 22″ banner — which showed up on Nov. 29 and ran at the bottom of the screen 24 hours a day until Peter Jennings renounced his seat at the anchor desk and moved to Thunder Bay, Ontario — seemed eerily similar to the Iran hostage crisis coverage. Certainly the networks had reason to want to distract the nation from their shameful election night performance. And once MSNBC went to “All Florida, all the time,” it became pellucidly clear that journalistic restraint and probity were not going to win the day. While it may have been unfair — as the late, lamented, and tragically overworked Ted Koppel blearily insisted right up to the day of his breakdown — for the print media to begin publishing television schedules in which ABC, CBS, NBC and CNN were referred to as “Larry, Moe, Curly and Shemp,” most of America readily adopted the new terminology. And when Ted Turner wearily announced that he was giving in to public pressure (which later turned out to be a CNN/USA Today poll showing CNN’s more erudite audience couldn’t remember which of the Stooges was CNN) and that CNN would henceforth officially be known as “Shemp,” the contest to design a new logo for the network did almost as much to unite the country as the election had done to divide it. But the facile tendency to blame everything on the networks’ frantic election-night contest to see who could be wrong first overlooks too much lunacy that the networks were not directly responsible for. There was, after all, Iowa. The final tally showed Gore winning Iowa by 4,047 votes out of 1.3 million cast. But that lead had shrunk by 900 votes when “election officials in Sioux and Palo Alto counties discovered math errors.” Had the Gore campaign just let that error pass, we might not have been subjected to the political dementia of the ensuing nine months. But when a thoroughly sapped vice president groused that, “We can’t find anybody in Iowa who can count to 900, but we can vote down school bonds every election,” the recount demand filed Nov. 27 by the Bush campaign attained the status of inevitability. And, of course, Wisconsin fell like the snowbound domino Henry Kissinger had so presciently described in 1968. It is not known whether any Wisconsin election officials actually visited Florida, or whether the virus had become airborne by that time, but on Nov. 16, Shemp reported that “officials in Outgamie County discovered Wednesday that they had given Bush an extra 510 votes.” This emboldened the Bush campaign, trailing in Wisconsin by only 6,000 out of 2.8 million votes cast, to file for a recount as soon as the last of Wisconsin’s 72 counties certified its vote tallies. Certainly no one could blame Gov. Bush for seeing bad Outgamie math as his salvation. Like the rest of us, he’d been trying to get “outta” this “gamie” for a long time. And once he lost Florida, he desperately needed salvation. Especially given the way he lost Florida. After all, when you go into the last day of counting up by 900 votes, only to have a missing ballot box containing 9,006 West Palm Beach ballots — split equally between Al Gore and Pat Buchanan — turn up, you have to feel pretty bad. But when it turns up in the basement of the Mayor Richard J. Daley Library in Chicago, it has to be terribly disappointing. Then, to have the secretary of state of Florida, Katherine Harris, a loyal Republican who was part of your delegation at the state convention, disappear three hours before she was to rule on the validity of the “Chicago, Florida” votes and be replaced by her chief deputy, Jonathan Gore — who immediately certified the ballots even though they were hand-printed on the back of 9,006 Jack-in-the-Box hamburger wrappers and your name was misspelled as “Gorge Bush” — must have been a terrible emotional elevator to ride. (There has, by the way, been another sighting of Ms. Harris. Three members of the Cal State Fullerton Young Republicans Club report having seen her in Kathmandu, “obviously heavily drugged.” They say she was dragged away by three crew-cut men in black suits with headsets behind their ears before they could talk to her.) So no one should have been surprised when Bush announced, “My advisors and I has conjrugated all the eventuaminities which could be precipitated in Florida and the other 56 states of the union, and we have decided that while it is important that we rise above statesmanship and devote our egernies to the needs of the American people, stategerie demands that we seek a recount in those states whose laws account for such ultimatos. So we have filed the apportionate proceduries in Oregon, Iowa, Wisconsin, New Mexico, Panama and East Carpathia. Effective immedially.” There is no denying that the electoral holocaust that followed has not been America’s finest hour. In fact, it’s hard to imagine we’ve had worse times that didn’t involve blowing up portions of Europe or Asia. There was, first, the resignation of three of Vice President Gore’s top aides. That occurred after the vice president was allowed to wander away from his daily touch football game against his daughters and shout to reporters that the governor’s recount demand “just demonstrates how little regard he has for the fine people of East Carpathia, whom I have come to know as friends, and whose Buddhist faith has millions . . . er, I mean much to recommend it to our nation.” Then there was the attempt by a terrorist to crash his plane into the governor’s mansion in Texas — apparently in the mistaken notion that Gov. Bush had called for the annexation of Panama. Then there was Dan Rather, announcing he could no longer utter the words, “This is Dan Rather for Moe News,” and walking out of the studio, never to be seen again. (It appears the trial on Mrs. Rather’s insurance claim will begin next week. Neither insurance company is willing to accept the fact that Rather’s clothes washed up on the steps of his swimming pool as proof that he was “lost at sea” for purposes of the Barry Bonds Triple Indemnity Jackpot clause of his policies. Gavel to gavel coverage will be carried live on Court TV, Larry, Curly and the Comedy Channel — which has announced that it will stop its 24-hour coverage of political developments just for this trial.) Then the elements began conspiring against us. The Blizzard of ’01, in which the offices of the Wisconsin secretary of state were first buried in snow for six days, and then turned up, mysteriously, in Skokie, Ill., may have killed the election’s last chance at legitimacy. Both sides should have just agreed to the Federal Election Commission’s suggestion that the country be ruled by a troika consisting of Jimmy Carter, Gerald Ford and Pee Wee Herman until a new election could be held — something that everyone agreed could be done rather expeditiously once the secessionist revolt in Panama was put down. Certainly no one was happy with the job Al Haig was doing running the country. But by the time he walked into the White House in March and announced he was now in charge, it had been three weeks since Sen. Clinton had allowed ex-President Clinton to leave New York. (Surely no book of American history will ever be published again without her deathless quotation, “Without me there to watch him, I wouldn’t trust him with a gerbil, much less a whole White House full of cigar-toting interns.”) No one else appeared to have the political will to contradict him, so Al Haig it was. And it was Haig whom most observers blame now for the infamous “New Mexico Compromise.” Shortly after the international commission headed up by Slobodan Milosevic finally certified Iowa as belonging in the Gore column, both Larry and Shemp announced that their investigations suggested that some of the Buchanan votes on the Jack-in-the-Box wrappers had been “dimpled chads,” which should not have been counted, and urged, in the now famous “July 4 Election Telethon 2001 with Jerry Lewis,” that all Florida was now “back in play.” (And that is why, children, whenever you turn on Larry, you see the words, “Back in play, Day 344.”) That was just too much for the mercurial Haig, who, upon learning of the New Mexico provision for an electoral card game in case of ties and verifying that New Mexico was a state, issued “Virtually Presidential Order No. 3,” (despite a great deal of concern, no one has been able to determine what “Virtually Presidential Orders” No. 1 and 2 did, but two of our guided missile submarines seem to be incommunicado at this time), announcing that Vice President Gore and Gov. Bush would play one hand of five-card stud on Aug. 1, 2001, at high noon. “Winner take the White House, devil take the hindmost,” does not exactly rank right up there with, “Give me liberty or give me death,” but it is generally (no pun intended) considered the best thing ever said by a White House caretaker. Which, of course, brings us to August’s fiasco. We were so close. As an anxious nation waited — and all four Stooges televised — the dramatic hand was dealt by Chief Justice Rehnquist. With Gore showing two jacks and Bush showing nothing higher than a five, poker pundits were sure it was over (Larry and Moe declared Gore the winner after the third card) until the candidates turned over their hole cards. Then, instead of announcing its new president to a sorely deserving nation, the chief justice just stood there and stared, gaping at the question loudly pronounced by the governor: the question we have been analyzing for the last 60 days, and that has already caused The Learning Channel, American Movie Classics and Animal Planet to announce that they are changing their format to “All poker, all the time.” We don’t yet know the answer to the question, which has plunged our nation back into constitutional crisis, the question that appears to be addressed only in the Eighth Amendment and that has now been fully briefed and awaits the U.S. Supreme Court’s answer. But the question itself reverberates in the mind of every American. In the immortal words of George W. Bush, now — and apparently forever — governor of Texas: “Whaddya mean, ace-two-three-four-five isn’t a straight?” William W. Bedsworth is an associate justice at California’s 4th District Court of Appeal. He can be reached at [email protected]

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