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
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
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
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
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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