The full Central Elections Committee will decide by 5 p.m. Sunday whether polling-station representatives may relay to parties identified, real-time information about who has voted, under an arrangement approved by the High Court of Justice on Thursday.
The arrangement bypasses, for now, the dispute over whether committee chairman and Supreme Court Deputy President Noam Sohlberg had the authority to prohibit the practice alone. Instead, the full committee will make a fresh operative decision on the underlying question of whether the reporting should be permitted.
That decision will not necessarily be the final legal word. The High Court will resume hearing the petition on Wednesday at 8 a.m., after the parties update it on the committee’s decision.
The court ordered that Wednesday’s hearing proceed as though a conditional order had already been issued. In practical terms, that allows the case to move directly into the substantive stage without requiring a separate preliminary order directing the respondents to justify their position.
The Thursday decision was issued by a panel comprising Justices Yael Willner, Alex Stein, and Khaled Kabub after all sides accepted the court’s proposed arrangement at the end of Wednesday’s hearing.
Request to be sent to full committee under agreement
Under the agreement, the original request submitted by attorney Shahar Ben-Meir to Sohlberg will be transferred to the full committee, which will decide it “as it sees fit, on the basis of all the information.”
Sohlberg’s August decisions prohibiting the transfer of the information will be placed before the committee as his legal opinion. The committee, rather than Sohlberg alone, will then make the operative decision.
The court emphasized that all sides’ arguments remain preserved, both before the committee and after it issues its decision.
Placing the underlying request before the full committee may allow the authority dispute to be avoided. Once the committee has made its own decision, the immediate question will become whether that decision - permitting or prohibiting the reporting - is lawful.
During Wednesday’s hearing, the justices had distinguished between two issues that had previously been treated together: whether Sohlberg could impose the prohibition alone, and whether transferring identified voting information infringes voters’ privacy.
The justices expressed difficulty with the first question while appearing receptive to the privacy concerns underlying Sohlberg’s position. The agreed arrangement allows the full committee to address the practice itself before the court considers what legal questions remain.
The committee has 31 members allocated according to the strength of the factions in the outgoing Knesset, including 18 coalition representatives. Likud has eight members, making it the largest faction on the committee.
That composition creates the possibility that the committee could reverse Sohlberg’s position, although it does not determine how its members will vote. His legal opinion will be placed before them as part of the committee’s consideration.
For several election cycles, party representatives serving on polling-station committees or as observers have reported voters’ arrival in real time. Campaigns could compare that information with their databases and focus calls, messages, visits, and transportation efforts on supporters who had not yet voted, often using applications such as Elector.
The information shows whether an individual has voted, not how that person voted, which remains secret.
Sohlberg ruled on August 4 that polling-station representatives may not transfer identified information about a person’s presence at a polling station, whether the person voted, or the circumstances of the vote, regardless of how the information is sent.
He found that representatives receive access to voter information to administer and supervise the election, not to supply political parties with data for campaign operations. The fact that the practice had continued for several election cycles without being stopped, he ruled, did not make it lawful in the absence of legal authorization.
As an alternative, Sohlberg directed the Central Elections Committee to publish aggregate turnout figures for every ordinary polling station at least four times on Election Day. Those figures would show how many people had voted without identifying them.
Likud maintains that aggregate figures cannot replace identified reporting because they do not tell campaigns which supporters have yet to vote. It has also argued that the prohibition would severely disrupt a turnout operation developed over several election campaigns.
If the committee upholds the prohibition Sunday, Likud can continue challenging it when the High Court reconvenes. If the committee permits the reporting, its decision may face a challenge based on the privacy and legal concerns raised during Wednesday’s hearing.