The Committee Is Not the Court

On 23 September Israel’s Central Elections Committee voted to keep the country’s two main Arab-majority lists off the ballot for the Knesset election on 27 October. On Friday 2 October nine justices of the Supreme Court put them back. The decision on the lists, Ra’am, also called the United Arab List, and the Joint List, an alliance of Hadash, Ta’al and Balad, was unanimous, according to Israeli media accounts relayed by Al Jazeera and the Jewish News Syndicate. By seven votes to two the court also restored Ofer Cassif, a Jewish member of the Knesset from Hadash. The one disqualification the court indicated it would have upheld never reached a judgment. Sami Abu Shehadeh, Balad’s chairman, withdrew after the justices told him that most of them favoured keeping him out.

The sequence is a familiar one. The two bodies that decide who may run are built differently. The committee goes first, and it is a political body. Al Jazeera describes it as “primarily a political body composed of representatives of parliamentary blocs in the outgoing Knesset.” It is chaired by a Supreme Court justice, Noam Sohlberg, who can also vote, and its composition gives the governing coalition a majority, Middle East Eye reported. The court goes second. It has, in Al Jazeera’s words, “nearly always overruled the committee when it votes to ban candidates.”

Both bodies apply one provision. Section 7A of Basic Law: The Knesset says that a list “shall not participate” in elections, and a person “shall not be a candidate,” if there is “explicitly or implicitly in the goals or actions of the list, or the actions of the person, including his expressions,” one of three things: “Negation of the existence of the State of Israel as a Jewish and democratic state”; “Incitement to racism”; or “Support for an armed struggle by an enemy state, or of a terrorist organization, against the State of Israel.” Subsection (b) adds that a committee decision barring a candidate “must be approved by the Supreme Court.” A list the committee bars has a different route: it may appeal to the court, as TRT World summarised the rules.

The September votes were lopsided. According to Adalah, the legal centre that represented all of the lists and candidates, the committee voted 18 to 5 to disqualify the Joint List and 18 to 5, with one abstention, to disqualify Ra’am. It rejected on procedural grounds a separate motion against Balad alone. The motions came from right-wing parties, among them Likud and Otzma Yehudit, and accused the parties and candidates of denying Israel’s existence as a Jewish and democratic state, supporting armed struggle and inciting racism, Middle East Eye reported. Accounts of the votes on the two individuals differ slightly: Middle East Eye gave 19 to 5 against Cassif and 30 to 4 against Abu Shehadeh, Adalah 18 to 5 and 31 to 4. On Abu Shehadeh, Middle East Eye reported, all the opposition parties backed the ban.

What the court decided, and what it left undecided

The judgment itself, in Hebrew, was not read for this article, and its reasoning has been reported only in summary. JNS reported that the expanded panel accepted the appeals of Ra’am and the Joint List unanimously, holding that the criteria for applying section 7A are narrowly construed and limited to extreme cases. The German agency DPA reported that the court found the committee’s decision had not met the legal requirements for excluding the parties. On Cassif, JNS, citing the business daily Calcalist, reported that Justices David Mintz and Alex Stein would have disqualified him for supporting an armed struggle against the state, while the majority held that his case did not fully meet the stringent criteria.

What was new this year was the list at the top of the motions. Bans on the Joint List and Balad have “almost become a tradition in Israeli politics,” Mairav Zonszein of the International Crisis Group told Al Jazeera, but Ra’am had sat in government. After the 2021 election it became the first Arab party to join an Israeli government, and its leader, Mansour Abbas, served in the Bennett-Lapid government. This year it is fielding a Jewish candidate, Yoav Segalovitz, who served as deputy minister for internal security. The Attorney General, Gali Baharav-Miara, opposed disqualifying the Joint List and Cassif, saying, as Al Jazeera summarised her position, that the evidence did not meet the stringent legal threshold.

She took the other side on Abu Shehadeh. The motion against him was filed by Otzma Yehudit, the party of the national security minister, Itamar Ben-Gvir, and rested on an Arabic-language article Abu Shehadeh published on 8 October 2023, the day after the Hamas-led attack on Israel. In JNS’s rendering, the article described the attack as “an important historic event militarily, politically and strategically.” At the hearing on Thursday 1 October he told the court that he did not support armed struggle and that a paragraph of the article had been incorrectly worded. Supreme Court President Yitzhak Amit told him, according to the public broadcaster as reported by Al Jazeera, that a majority of the nine justices favoured disqualifying him, and gave him until Friday to withdraw. He did. The court’s ruling on Friday, Reuters reported, said a majority had been likely to uphold the ban before his withdrawal made the question moot, and that the judges had agreed unanimously that statements by Abu Shehadeh were “painful, disturbing and revolting.”

A ban without a judgment

The withdrawal matters procedurally. Under section 7A(b), the committee’s vote against a candidate has no effect until the Supreme Court approves it. Abu Shehadeh is off the ballot, but there is no judgment holding that his article met any of the section’s three grounds, and no reasoning for a later court to apply or distinguish. Balad said, according to Al Jazeera, that a removal ordered by the court rather than a voluntary one would have had “grave consequences for the country’s political and parliamentary life,” because it would set a precedent for removing Arab candidates. Abu Shehadeh told Al Jazeera that he withdrew because he “didn’t have any other choices.” Ben-Gvir said his movement had “managed to oust Sami Abu Shehadeh and stop him from entering the Knesset,” Reuters reported.

The committee heard motions in the other direction too. Petitions were filed to disqualify Ben-Gvir’s party and that of the finance minister, Bezalel Smotrich, Al Jazeera reported; the committee rejected them, and the Attorney General found that they lacked sufficient legal basis. Before the committee, Adalah’s general director, Hassan Jabareen, argued that she had found statements by figures from Otzma Yehudit and Religious Zionism to fall short of the “critical mass of evidence” required for disqualification, while relying on a broad reading of mainly one article in Abu Shehadeh’s case. Incitement to racism is one of section 7A’s three grounds, alongside support for armed struggle. Ben-Gvir, Reuters noted, has been allowed to stand despite a past conviction for inciting racial hatred.

Who is on the ballot

Palestinian citizens make up about 20 percent of Israel’s population, and parties must win at least 3.25 percent of the national vote to enter the Knesset, a threshold that has pushed smaller Arab parties into joint lists, Al Jazeera noted. Adalah has documented challenges to Arab candidates or lists in the elections of 2003, 2013, 2015, 2020 and 2022, according to the same report. The 27 October vote is the first since the attack of 7 October 2023 and the Gaza war that followed. DPA reported that, on the polls, neither Prime Minister Benjamin Netanyahu’s camp nor his opponents’ can count on an absolute majority.

Section 7A gives a committee of party representatives the first word on whether rival lists may run, and gives the Supreme Court the last. On Friday the court used that last word to restore both Arab lists and Cassif. In the one case where it signalled that it agreed with the committee, it did not have to write a decision at all.

Sources

Section 7A was read in the Knesset’s official English translation of Basic Law: The Knesset. The committee’s votes of 23 September are from Adalah’s statement of that day and Middle East Eye’s report of 24 September, which differ on the tallies for the two individual candidates, as stated. The hearing of 1 October and the ruling of 2 October are from Al Jazeera (reports of 1, 2 and 3 October, drawing on the Israeli Public Broadcasting Corporation, AFP and Anadolu), Reuters (2 October, read via Yahoo News), the DPA report of 2 October (via Yahoo News), JNS (via the Cleveland Jewish News, citing Calcalist) and TRT World. The court’s judgment was not read; its reasoning and the quoted phrase about Abu Shehadeh’s statements are given as those outlets reported them. Abu Shehadeh’s article was not read; the quoted phrase is JNS’s translation. The Knesset Elections Law, which sets out the appeal procedure in detail, was not read. Times of Israel and Haaretz reports were not accessible.