MOSHE ABUTBOL 311.
Many arguments were thrown out by some of the country’s best lawyers in Tuesday’s hearing on whether to overturn the Beit Shemesh elections and order new elections.
But two issues stand out as likely being outcome-determinative: the battle over whether proof of fraud must meet near criminal law standards or a much lower standard; and the battle over what is the decisive issue – pure math or shoring up democratic values.
The state and mayoral challenger Eli Cohen argued different variations on the theme that since the hearing was administrative and not criminal, the standard of proof was much lower, and that the decisive issue should be shoring up the legitimacy of democracy in the eyes of Beit Shemesh’s voters.
Incumbent Mayor Moshe Abutbol and his allies argued that crimes were being alleged against persons accused of election fraud and that the standard of proof should be near the criminal law – one of beyond a reasonable doubt – while adding that those challenging the election needed to show they could invalidate at least 956 votes (Abutbol’s winning differential) or the rest of their arguments became irrelevant.
Hebrew University Prof.Barak Medina said each side could push their argument from a different framework.
He said that until now, most voter fraud cases involved one polling booth and that such cases were often decided on precise mathematical calculations, but also that a lower standard of proof was required regarding evidence.
In contrast, the Beit Shemesh case had no comparable precedent that Medina was aware of, in that the accusations were of city-wide systematic fraud.
Since the fraud was citywide, he said, there could be a strong argument for the court moving beyond the narrower arithmetic issue and focusing more on shoring up public confidence in the democratic system.
On the flip side, he said, ordering new elections is an extreme measure, so the court might require a standard of proof closer to the criminal law standard.
In deciding this question, observers might ask: Should courts be purely objective fact-judgers who tally balls and strikes with no global purpose? Or even as judges must strive for objectivity, do judges have an obligation to defend the more general interests of justice, even if it is their own somewhat subjective viewpoint? As Medina points out, the three judges are likely to need to make some political judgments.
“If they overturn the election, they will be admitting” that what happened in Israel in the city of Beit Shemesh was “like in a third world country,” said Medina.
Many observers had assumed that once Attorney-General Yehuda Weinstein put the state on the side of requesting new elections, the court would find it hard to refuse.
That argument may still carry the day, but the judges initial interest in the arithmetic on Tuesday indicated that formally recognizing and admitting that a thirdworld style election occurred in a major city in Israel may be an equally hard pill to swallow.
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