High court judge on electoral cut off law: What if there were no Arabs in the Knesset?

High Court appears divided on law's legality.

(photo credit: REUTERS)
Justice Salim Joubran asked what would happen if there were no Arabs in the Knesset as part of a petition to declare the new electoral percentage cutoff law unconstitutional before a maximum expanded panel of nine justices of the High Court of Justice on Sunday.
The law cuts-off political parties from receiving any Knesset seats that fail to obtain at least a 3.25-percent threshold of the popular vote.
While some of the law’s proponents pushed for it to reduce the number of small political parties, to empower larger parties and to create greater stability for ruling coalitions, the biggest discussed impact appears to be the possibility it could wipe out the three separate Israeli-Arab parties.
Practically-speaking, the three Israeli-Arab parties have been in negotiations about possibly uniting into one party to avoid elimination and polls have said that a single united party could garner more seats.
According to a Panels Research poll taken the past week for The Jerusalem Post and its Hebrew sister publication, Ma’ariv Sof Hashavua, United Arab List-Ta’al would get six seats, five for Hadash and Balad would fail to get in.
A group of human rights groups petitioned against the law’s constitutionality in terms of limiting voter’s choices as a matter of principle along with attacking its potential impact on Israeli-Arab parties.
Nadeem Shehadeh, a lawyer dealing with the case for Adalah – The Legal Center for Arab Minority Rights in Israel, argued that according to the old threshold of 2%, the Arab parties needed 20% of the votes of Arab citizens to enter the Knesset. However, according to the new threshold of 3.25%, they need 30%.
“Therefore it is clear that the damage is mainly done to the Arab parties,” he said.
In an interview, Shehadeh told the Post that one of the key points is “there needs to be pluralism for the Arab minority.”
He added that a united list could disappoint voters who would be forced to vote for a party that included candidates ideologically opposed to their views.
Asked if raising the electoral threshold is equally disadvantageous to Jews, Shehadeh responded that Jews have more options and parties from the entire political spectrum.
He emphasized that Adalah is not interested in dictating whether the Arab parties choose to unite or not, but the point is that the choice should be an Arab one, and not forced on them by the majority.
Association for Civil Rights in Israel lawyer Auni Bana said the Knesset had not properly grappled with historical voting patterns and the impact of the law on Israeli-Arabs.
Joubran, an Israeli Arab himself and the head of the central elections commission, appeared to come out most emphatically against the law, lecturing the state that the three parties should not have to unite.
He said that each was founded as a different party, because they have different ideologies and forcing them to unite could decrease voter turnout as voters may no longer trust that the single consolidated party will represent their values.
Justice Hanan Melcer showed some doubts about the law, implying that if it is framed as a major shift in the workings of government, which could be problematic and possibly would have been better to put it through as a full-fledged basic law.
Melcer asked if the implementation could be delayed till the next election to work out controversies that it appears the Knesset had not fully addressed.
Justice Neal Hendel seemed disturbed by the idea that the law could essentially force Israeli-Arab voters to vote for only one party.
However, Supreme Court President Asher D. Grunis dismissed all of the attacks on the law as “speculation over and over again,” even calling them “speculation about speculation.”
Grunis’s point is that no one knows exactly how Israeli-Arab parties and voters will act in light of the law and the court should not intervene before the issue plays out at least once in the upcoming election.
Justice Elyakim Rubinstein appeared ready to at least give the law a pass based on the expectation that polls have shown that a united Israeli-Arab party would perform well, maybe even better than the parties had separately.
Justice Esther Hayut added that while she had some issues with the law and its possible impacts, it was hard for her to see why the court should intervene where the law did not take away Israeli Arabs right to vote and there was no proof that they would overall lose seats in the Knesset.
The state argued that other countries have cut-offs at an even higher threshold for their parliaments.
MK Dov Henin (Hadash) said he hoped that the court would “defend democracy from the trampling majority that is interested in changing the rules of the game” to achieve disturbing and problematic goals.
Gil Hoffman contributed to this report.