The Blogs: What’s going on with that last Knesset seat?

Something strange is happening to the 21st Knesset. (Yes, stranger than the fact that it lasted only three months.) Though everybody is focused on the upcoming election for the 22nd Knesset, it turns out we’re not quite finished figuring out the winners of the last one.

Because of the nature of how the Knesset seats are allocated, the 120th and last seat is always a bit wobbly. In this election it went to Yaakov Pindross, #8 on the UTJ list — but only by the barest of margins. Make a few tiny adjustments to the vote count, and it goes instead to Amit Halevy, #36 from the Likud.

How tiny? Take away a mere 71 votes from UTJ (or its vote-sharing partner Shas), and Pindross loses his seat to Halevy. Dig up a missing 180 votes for the Likud or its ally (the Union of Right-Wing Parties) and accomplish the same thing.

Other parties were also not far off from contention. Another 1443 votes for Meretz and/or Labor, and it would have belonged to Ali Salalha. Another 1503 votes for the New Right and it would have been Matan Kahana’s.

So it should come as no surprise that, only a few days after the election results were finalized, Halevy filed a legal objection regarding miscounted votes – starting a court fight that is still going on today.

But the Knesset is already dissolved. So who cares?

Quite a few people, actually:

Certainly Halevy cares. Three months’ back salary as an MK is nothing to sneeze at, even if he will never sit in the seat itself.
The Likud and UTJ parties also care – and care a great deal. That seat represents an estimated 1.5 million shekels in campaign funding for whichever party ends up with it at the end.
There’s been a lot of buzz about Knesset Speaker Yuli Edelstein looking for ways to cancel the election if a Likud-Blue and White national unity government is formed. If that happens, and UTJ sits in the opposition, that extra seat could affect every decision the coalition makes for up to four years.
Finally, the investigation is raising some very uncomfortable questions about the objectivity and transparency of Hanan Melcer, Deputy Chief Justice of the Supreme Court and current head of the Central Elections Committee (CEC). In my opinion this is where the story has its biggest impact – especially for us non-politicians who want our democracy’s institutions to be trustworthy.

The lawsuit

Halevy’s legal objection made what I thought at the time to be a rather unlikely claim: that he had found enough suspicious/miscounted votes to be able to take the seat from Pindross.

I was skeptical for two reasons.

You probably remember the unhinged “Shas stole the election” claims made by Yachad four years ago. Then there were the vote-counting accusations made this election by Zehut and the New Right. And don’t forget the insane voter-fraud ramblings of people like President Trump and Stacey Abrams, or even the massive grift pulled off by Jill Stein in 2016. Unless you want to sound like a flat-earther, you have to ignore these things until they have built up a certain momentum of respectability. Be particularly skeptical when they’re accompanied by claims of “the system is against us”.

So I ignored the story at first, figuring it would be all over the news if it turned out to have any merit. And as you can see in the Google search results in the image to the right, none of the prominent English-language Israeli news organizations reported on it at all. Some Hebrew-language sites did give the lawsuit a token article, but few took it seriously.

Even if reporters had had their fill of recounts after Naftali Bennett’s long post-election campaign, surely a lawsuit that could decide who is and is not in the Knesset deserved more than zero articles, no? The lack of coverage seemed to indicate that reporters had not found Halevy’s claims worth reporting on.

The second reason for my skepticism is based on the awful way that it was covered by the media outlets that did bother to pay attention. The few that took the subject seriously usually accompanied their reporting with mathematically absurd statements.

For example, one article claimed that UTJ “currently owned the seat thanks to a difference of only 1 vote” and that Halevy had found 93 missing URP votes – more than enough to cover that tiniest of margins. But both numbers are ridiculous: the first number is completely untrue (the difference is 180) and the second number wouldn’t be enough to change the results (he would need 180).

So I thought that even if Halevy was right, his math was way off and the lawsuit would ultimately go nowhere. Somehow it didn’t occur to me that the reporters might have been the ones who got the math wrong. I should have known better, considering I’ve spent the last five years correcting news outlets who can’t even get the size of the electoral threshold right.

The turnaround

But then three things happened to change my mind. First, the justice system itself seemed to be taking Halevy’s claims seriously; second, one media outlet started reporting on it seriously; and third, Justice Melcer began making some strange and infuriating decisions.

Now, I’m a technical writer, not a reporter. I’m writing this article for fun, for free, and in what little spare time I have. While I did contact Halevy’s attorney Simcha Rothman to ask a couple of simple questions, I have none of the connections, free time, or expertise necessary to do a real investigation. So I’ll be getting most of my information from Ma’ariv, whose reporting on this has been 1) rich in detail and 2) free of any glaring mathematical mistakes.

The earliest Ma’ariv article that I can find, by Kalman Liebskind, came out on June 1. There, Liebskind describes Halevy as having found not one missing vote but rather 185 – slightly more than he needs to cover the difference. So the lawsuit isn’t mathematically without merit.

Legally, too, Halevy at the very least seems to have a leg to stand on. He claims that all 185 missing votes have been confirmed to be mistaken by the CEC’s legal advisor. That is to say, due to mistyping or miscopying, there are differences between the votes as recorded in the polling places and the votes as recorded in the CEC computer system.

I hasten to emphasize that nobody here is talking about a conspiracy theory or a stolen election. When thousands of people are counting millions of votes, there will be cases of mistyping and miscopying! One famous instance is when dozens of votes in Bat Ayin that were supposed to go to Zehut were registered as going to Ra’am-Balad. People cried “stolen election”, but it’s pretty clear it was simply a misclick by one person in the CEC’s army of vote counters and typists. After the CEC reviewed the vote-counting protocols, the votes were assigned correctly and without fuss.

And that’s what Halevy’s goal was here as well: reassigning votes to the Likud or URP, enough to get him into the Knesset. But since the election results had already been certified, it’s too late for the CEC to change them; he had to bring this evidence to the District Court to attempt to have those results overturned. In his lawsuit, Halevy listed these specific missing/misassigned votes, and also indicated that there were other suspicious votes that he had been unable to review.

The District Court turned to Justice Melcer, head of the CEC, and ask him his opinion of the situation. And that’s where the trouble began. Because Melcer waited until the very last day that he was legally required to provide his response – and his response was to ask for a 2.5-week extension. After which he asked for another one-week extension. Which is absolutely insane, seeing as the question of who should be sworn into the Knesset is probably one that should be decided before the Knesset is sworn in.

Rather than, as it turns out, after the Knesset isn’t even in session anymore.

An insane framework

This isn’t the only dubious decision Melcer made.

According to Liebskind, Melcer opened the polling places for review by UTJ – and not only the polling places Halevy listed but additional polling places as well. Simultaneously, he refused to grant Halevy permission to review those very same polling places. Melcer also apparently responded to a similar request by URP to review certain polling places with a demand that they specify, poll by poll, the reason for their request.

Liebskind’s article for Ma’ariv excoriates Melcer for treating these three seemingly identical requests so differently. He points out that Melcer’s demand for an explanation violates legal guidelines that say a request to review vote-counting materials requires no accompanying explanation – guidelines that were written by Melcer himself. But I’m going to go one step further than Liebskind. I cannot fathom why such requests need to be made in the first place.

We live in a democracy. We are supposed to be able to trust our electoral process implicitly, and in order to be able to do so the records of that process should be entirely public from day one. Is there any reason anybody has to ask permission to read these records at all? Shouldn’t I be able to wander into the National Archives and leaf through a copy in a reference room whenever I like?

Do as I say, not as I do

It appears that Melcer believes in openness and transparency – as long as he himself doesn’t have to comply with it. He made three major decisions in the recent electoral campaign in order to force transparency into the system:

First, that every published poll must submit its raw numbers to the CEC, so that the public can see the actual percentages and other information that gave rise to the seat counts reported by the poll;
Second, that any agreement signed between parties (such as the coalition between the Jewish Home, National Union, and Otzma Yehudit) must be made public;
Third, that anonymous internet ads and polls-by-SMS are banned.

As a quasi-libertarian, I’m not really a fan of the first two of these decisions; I think society is best served if we rely on Big Brother to enforce transparency only where we cannot do so ourselves. We should leave it to media outlets demand transparency from their pollsters, and to the people to demand transparency from their political parties. But the intentions and goals behind all three decisions are unquestionably laudable.

Unfortunately, Melcer’s lofty goals of transparency seem to apply to everybody but Melcer. I’m sure everybody remembers that very confusing day when, thanks to a bug on the CEC website, nobody knew if the New Right had made it into the Knesset or not. The CEC repeatedly said that only the website was broken, and there was no problem with the actual vote counts, and that they knew what the results were – but refused to go on and actually tell people those results. Reporters were tearing their hair out on Twitter over this idiocy, and every media outlet was publishing its own set of mutually contradictory leaks while we waited forty days and forty nights for Melcer Rabbeinu to deign to come down from Mt. Sinai with the twin tablets.

And here, too, when we want Melcer to be a little bit transparent, suddenly he’s dragging his feet and demanding justifications for every piece of paper the parties and courts want him to produce. What a hypocrite!

Who cares about justice, anyway?

Then comes Liebskind’s second article, in which Melcer ascends to the height of chutzpah. He ended up waiting a total of 40 days (an amusing coincidence) to respond to the District Court, during which time, you may have guessed, the 21st Knesset ceased to exist. At which point Melcer said that there was no point to the lawsuit anymore and he doesn’t need, or have time, to produce the documentation.

Frankly, I’m disappointed I didn’t get to see the series of excuses he would have offered had this Knesset lasted a full four years. But I digress.

Anyway, as I said at the very beginning of this article, it’s simply untrue that the lawsuit no longer has a point. There are plenty of reasons to find out who actually won the 120th Knesset seat – not least of which is that we need to have faith in the reliability and transparency of our electoral system. I mean, we should probably know where and how vote-counting mistakes are made so we can make an effort to minimize them, right? But that is apparently also on the list of things Melcer doesn’t care about, right alongside the rightful owners of 1.5 million shekels of campaign funding and three months of an MK’s salary.

But somebody does care

So far, thankfully, the system is doing its job of overcoming the obstructionism of one bad actor. On June 17, the District Court overruled Melcer and gave Halevy permission to submit his list of 50 polling places that he wants to review. It is also allowing UTJ to submit its own list of 50 such polling places.

And that’s where we stand now. Simcha Rothman (Halevy’s attorney) told me that the lists have been submitted, and the District Court is reviewing them. My hope is that they will all be approved for review; as I said, I support as much transparency as possible and frankly question the fact that we need to ask for permission at all.

“But Daniel,” I hear you cry, “If we don’t cut off the review process at some point this could go on indefinitely!”

Only because we have this stupid system of forcing people to ask permission. If every party had had permission to review every protocol from day one, you can rest assured that every single vote-counting discrepancy would have been noticed and catalogued within two days of the election. It’s only because we’re forcing the process down the narrow channel of the court system that it’s taking this long. For God’s sake, Bush v. Gore was famous as a trainwreck of uncertainty and even that was resolved in far shorter a time than this!

Three resolutions

To prevent this from happening again, the Israeli electoral system needs to make the following decisions:

Scan and upload every polling place’s vote count to the internet immediately upon completion, making it publicly accessible to all so that it can be checked against the final, computerized count;
Open everything that happens within the CEC to public view, without exceptions;
Fire Melcer, whose position on transparency appears to depend solely on whether or not your name is Melcer.

As for who actually owns that last Knesset seat… who knows? Maybe it’s Halevy. Maybe it’s Pindross. Maybe we won’t find out until the 23rd Knesset.

But the most important thing is that we find out the truth. That’s what having a transparent, democratic system is all about.