A Constitutional Crisis

On the pendulum between the apocalypse and the mesiah's arrival, before the sorrow wears off or the satisfaction from last week's vote turns into Bibi having to make good on all his promises, we face a constitutional crisis of immense proportions. Five Supreme Court High justices will meet as a High Court of Justice on Wednesday June 5 to listen to a request for a second round of voting as provided for in the law that propelled Benjamin Nitai (his American name) into power.

According to the election law that Bibi wanted so much that he voted against the Likud while they were in power, the popular vote for the premier must exceed 50% of the ballots cast.

Netanyahu won 1,501,023 votes, compared with 1,471,566 for Peres. That gives Bibi the edge. But when the additional 148,681 "blank ballots" are counted, Netanyahu doesn't have the 50%+1.

The judges will have to decide whether the new election law requires a definition for abstentions other than disqualification. In the past, the only use of white ballots was for write-ins and any other ballot that wasn't one of the official tickets, was diqualified. Some 20,000 such disqualifications were registered in the 1992 elections, mostly because the voters had scribbled on the ticket.

The campaign included several political parties that specifically recommended using the white ballot as a protest against both Peres and Bibi -- and some 5 percent of the Jewish population used the white ballot to register their protest. They were part of the electorate and therefore their votes must be included in the overall count, putting Bibi ahead of Peres -- but without the 50%+1 of the votes required by the law. The law does not take into consideration a white ballot protest campaign, nor does it change the definition of the dsqualified ballot -- but the voters clearly did make such change, considering the proportions who used the white ballot as an abstrention.

It's a difficult decision for the High Court, which is under attack by the re-emergent religious right. Led by Aharon Barak, a Justice who has made clear his intent to guarantee the supremacy of the law -- and use the court as a constitutional one whenever possible -- the justices will surely keep in mind the shock to the public if told that meanwhile, Bibi has not yet won and that a new round must take place.

But looking at the original legislation -- and the process of promulgation it went through -- it is clear that the lawmakers clearly intended a 50% majority, and not a plurality, as the deciding factor.

Indeed, Bibi's campaign policy was geared precisely to prevent a three or four way race against Arik Sharon, Rafael Eitan, and David Levy, as well as Peres, in which the right would split its vote and Peres could win the first round handily, as all polls predicted even after the suicide bombings, before Bibi -- with Arik's help -- struck his deals with Raful and David Levy.

For those who think that this is just another tricky Shimon Peres plan to prevent Likud from taking power, it's the State Attorney that is trying to knock down the suit before it's brought to the full panel of 13 justices. It's also worth noting that Supreme Court President Aharon Barak -- who wasn't afraid to force Yitzhak Rabin's resignation in 1976 over Leah's then-illegal bank account -- named five justices to hear the suits asking for a second round, a clear signal he wants a strong consensus for a decision to order such a new balloting.

Subjudice laws in Israel prevent the Peres camp from speaking up about the issue -- while obviously on the Netanyahu side nobody wants to raise the issue. Neither camp is involved in the suits brought to the High Court.

A good reporter with a lot of time on his hands might go back to the original Knesset transcripts to see what Bibi at the time said about the need for a 50% majority, rather than a plurality, as the measure of victory. If memory serves right, drawing on his American experience, he argued that lacking an electoral college to confirm the outcome of a popular vote, it's neccessary in Israel for a clear-cult majority, rather than a simple plurality, as the criteria for successfully implementing presidential-style government in Israel.

The current betting is that the court will refrain from shocking the country with an order for a second round of voting. And no court is ever eager for a constitutional showdown with the executive and legislative branch. But if it sticks to the letter of the law -- which it must in order to retain its authority as the supreme arbiter of law in the country -- it might not have a choice.

It's impossible to say who would win, by the way... and it really doesn't matter. What matters is that the citizenry of Israel understand their own electoral system. The 130,000 or so white ballot abstentions that were not counted when they were clearly cast in order to affect the outcome prove that either they don't understand it -- or understand it better than the lawmakers who made it the law.