The High Court versus the voters

Voters rejected court dictates on whom to elect, but the court has threatened to annul their choices.

Voters Jerusalem elections 2013 370 (photo credit: Marc Israel Sellem)
Voters Jerusalem elections 2013 370
(photo credit: Marc Israel Sellem)
One frequently asked question about last week’s municipal elections is why three mayors indicted for corruption were all handily reelected. Though several factors contributed to this outcome, one deserves special attention: the outrageous overreach of our self-appointed guardian of public morality, the High Court of Justice.
In the last five weeks before the elections, the court ousted three mayors due to the indictments against them: Ramat Hasharon’s Yitzhak Rochberger, Upper Nazareth’s Shimon Gapso and Bat Yam’s Shlomo Lahiani. Allowing an indicted mayor to continue serving, the court asserted, would undermine public faith in government.
Then, one week before the elections, it hurled a much bigger bombshell: Even if voters reelect these mayors in full awareness of the charges against them, it said, the court reserves the right to overturn this democratic decision and oust them again. And it hinted strongly that it probably would.
The initial ousters were problematic enough. First, as Justice Yoram Danziger subsequently noted in a separate case, the law doesn’t bar indicted mayors from continuing to serve; it mandates their resignation only if convicted. Thus the court had no legal authority to make these rulings: It was simply and arrogantly assigning the force of law to its own value judgments.
Second, though the court has long held that ministers or deputy ministers under indictment must resign, mayors differ fundamentally, because they are directly elected. In contrast, ministers and deputy ministers enter the Knesset through ballots cast for parties rather than individuals, and are then appointed ministers or deputies by the prime minister (sometimes but not always with Knesset approval). Thus while no law authorized the court to oust ministers and deputies either, it could at least claim it wasn’t annulling the voters’ explicit choice. In ousting mayors, the unelected court was directly annulling the voters’ decisions.
Third, the timing was unconscionable. Had the court ousted a mayor with several years left to serve, one could argue that voters didn’t know he would be indicted and might have voted differently if they had, and since they can’t alter their decision until the next election in several years’ time, the court is justified in acting on their behalf. But when it ousts three mayors just weeks before a scheduled election, it’s not acting on behalf of voters who lack the option of doing so themselves; it’s trying to preempt the voters’ decision. Effectively, the court was telling people how it expected them to vote.
But problematic as all this was, the ruling initially seemed at least to leave voters the freedom to make their own decision come Election Day. That illusion was shattered the week before the elections, when the court published the reasoning behind its decision. In it, the justices explained that since the right to run for office is a fundamental one, they couldn’t bar the mayors they ousted from seeking reelection. But should voters choose to reinstate these mayors in full knowledge of the charges against them, the court would consider itself authorized to overturn this decision by ordering the relevant city councils to oust them again.
“The question is whether, once the voter has had his say, that’s the end of the story, and the voter’s decision must be accepted without further thought,” Justice Miriam Naor wrote for the court in the 6-1 decision. “My answer to this is negative ... in my view, the voter’s will is one of the considerations that must be taken into account in this situation, but the voter’s will cannot be the supreme consideration that overrides all others.” 
Naor acknowledged that this could turn the election into a meaningless exercise, in which the electorate’s decision would be voided immediately after being made and the city council would replace the voters’ chosen candidate with someone they didn’t choose. But far from sounding troubled by that possibility, she advised voters none too subtly to spare themselves this humiliation by making the right choice to begin with: “Our reasons [for ousting the mayors] are being given now in consideration of the timing of the October 22 elections, in order to allow the parties, and others, to consider their steps,” she wrote.
In short, voters have no right to weigh the candidates’ pros and cons, including the indictment, and then decide for themselves; they must bow to the dictates of an unelected court even on this most fundamental of all democratic rights – the right of the governed to elect their own government.
Then, adding insult to injury, Naor and her colleagues had the gall to assert that ousting indicted mayors is necessary to uphold the “foundations of democratic rule,” even as they were emptying “democratic rule” of all content by asserting the power to reverse the outcome of free and fair elections. Granted, mayors under indictment aren’t great for democracy. But a court asserting the right to vacate the results of democratic elections is infinitely worse.
Nor is this power grab mitigated by the fact that Israelis who don’t live in the towns at issue generally supported the mayors’ ouster. A majority of those who do live there clearly thought the good these mayors had done outweighed the harm of their alleged offenses. And the people who have to live under a given government are the only ones entitled to choose it. That, at bottom, is what democracy is all about.
Moreover, “indicted” isn’t the same as “convicted”: Public officials indicted for corruption have often been acquitted. Thus voters may quite reasonably be reluctant to boot out someone they deem to have done a good job when he may well be acquitted in a few months’ time, at which point it will be too late to return him to office. In contrast, if he’s convicted, he’ll be legally required to resign in any case.
In voting as they did, residents of these towns sent the court a pointed message: Don’t tell us how to run our lives. If the justices fail to take that message to heart, the Knesset should urgently pass legislation to make them do so, and to put electoral power back where it belongs – in the voters’ hands.