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Analysis: Court saw documented election fraud as ‘tip of the iceberg’
By YONAH JEREMY BOB
27/12/2013
The historic decision not only potentially changes the future of Beit Shemesh, it sets the courts on a more interventionist path to defending the legitimacy of future elections regardless of the math.
 
At the heart of the dispute over whether to order new elections in Beit Shemesh after allegations of massive and systematic fraud was whether the court should decide the issue based on strict math or on a broader concern over undefined fraud and protecting democratic legitimacy.

Incumbent Mayor Moshe Abutbul argued that even with the many stories of fraud that the state presented in court, they could not add up to disqualifying the 956 votes needed to alter the outcome in favor of challenger Eli Cohen.

The state should prosecute those who committed fraud, but math is math, and without sufficient proof of being able to disqualify 956 votes, the election as a whole must stand, Abutbul said.

The state and Cohen argued that the fraud was so massive and the atmosphere of intimidation against Cohen supporters so pervasive, that the court needed to recognize that the fraud caught by police was only a fraction of what had occurred and that to maintain the legitimacy of elections, a re-vote was required.

The issue was compounded by the scarcity of precedent on the issue, as election fraud in Israel in the past has generally been limited to a single voting station and not city-wide.

Also, the court was bound by precedent stating that there did need to be some connection between evidence of problems with an election and the possibility that the problems could alter an election’s outcome.

But the court felt a slightly freer hand because of a 2002 change in the election law that lowered the threshold for evidence challenging election results.

The court also looked for guidance from other countries, citing a range of American, British, French and other cases and articles that collectively said a court could find that the nature of the evidence before it suggested that it was only the “tip of the iceberg” of fraud in an election.

This finding would then justify a “serious presumption” that “regardless of the figures,” an election as a whole was sufficiently affected by irregularities to make ordering a new election obligatory.

The historic decision not only potentially changes the future of Beit Shemesh, it sets the courts on a more interventionist path to defending the legitimacy of future elections regardless of the math.
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