Likud MKs call to disobey ruling

High Court rules state comptroller election violated ballot secrecy, must be held again

Deputy President Sohlberg says ‘real possibility’ that six MKs who filmed their vote for Netanyahu’s lawyer influenced outcome of the election; Rabello said refusing to take up post unless a new vote held

In the latest clash between the branches of government in Israel, the High Court of Justice ruled unanimously on Thursday that the vote in the Knesset last month in which Michael Rabello was elected state comptroller, was invalid due to violations of the legal obligation to hold the election by secret ballot since six Knesset members filmed their vote.

The move sparked calls from Likud MKs to ignore the court, a move that would push Israel even closer to a constitutional crisis. Rabello, himself, was reportedly loathe to cross the court, fearing for his legal future.

The court ruled that the Knesset must therefore hold a new election for the state comptroller position.

Prime Minister Benjamin Netanyahu backed Rabello’s candidacy. Rabello has worked for the premier and his family as a private lawyer on numerous occasions, served as a negotiator for Netanyahu in coalition negotiation, and represented him in the High Court.

Writing the principle ruling, Deputy President Noam Sohlberg detailed how the secrecy of the ballot cannot be compromised; how at least six MKs violated the secrecy requirement by filming their vote; and how there was a “real possibility” that such violations tipped the balance of the vote in favor of Rabello.

Responding to claims by the coalition that videoing the vote did not violate the secret ballot, Sohlberg said that even a child could recognize that such actions mean that the vote was not secret.

Opposition MKs immediately welcomed the decision, and called on Knesset Speaker Amir Ohana to call a new election as quickly as possible.

Several Likud MKs called on the Knesset to defy the ruling, a move that would create a constitutional crisis if Rabello were to try to take up the position regardless of the court ruling.

Rabello, however, has no intention of taking office without a new Knesset vote, even if the government defies the ruling and refuses to hold one, Channel 12 reported, citing sources close to him.

According to the report, Rabello, a leading lawyer, has made clear he will not assume a post clouded by questions over the legality of his election. The network said he also hopes to be appointed to the Supreme Court one day and would not want to jeopardize that possibility or expose himself to disciplinary action against his law license.

Channel 12 also reported that Rabello spoke with coalition leaders this afternoon and made clear he would not assume the role under the existing circumstances.

Ohana did not immediately state how he would act in response to the decision, and a spokesperson for Netanyahu did not respond to a request for comment.

The fight over Rabello’s election comes against the background of the current government’s repeated efforts to reduce checks on government power and avoid scrutiny of its actions, such as the refusal to establish a state commission of inquiry into the October 7, 2023, massacre. The state comptroller only has enforcement powers over election campaign finances for parties and political candidates, but is considered an important institution in impartially reviewing and auditing government functioning.

Rabello was elected to the Knesset on June 3, after Netanyahu backed him against former Supreme Court justice Yosef Elron.

Rabello lost the first round of the June 3 voting to Elron 60-57. A second round of voting then began, since a candidate needs 61 votes to be elected, but was aborted after opposition MKs alleged that coalition MKs had been ordered to record their vote.

When the second vote started over, five Likud MKs were known to have videoed themselves voting for Rabello inside the booth, while one Shas MK openly displayed his vote to cameras outside the voting booth.

Rabello won the second round 61-57, with some coalition MKs having apparently switched their votes from the first round.

The opposition alleged that senior Likud officials had given instructions to coalition MKs to record their vote in order to satisfy Netanyahu that they had voted for his candidate, and so petitioned the court together with government watchdog groups to annul the election.

In his ruling, Sohlberg noted that the Basic Law: State Comptroller and the Law for State Comptroller stipulate explicitly that the vote for the office be conducted by secret ballot.

And he wrote that despite the arguments of the coalition in court that MKs were entitled to relinquish this right, the secrecy requirement does not refer to a right at all but rather to a crucial aspect of the vote which cannot be violated.

Sohlberg also noted that when the Knesset committee preparing the Basic Law discussed the nature of the election in 1987, it was stated explicitly that it should be held by secret ballot in order to prevent MKs from being pressured by the coalition or their party to vote for a particular candidate, instead of voting their conscience.

The deputy president also rejected the idea that Knesset members could voluntarily give up their independence in the vote, stating that by publicizing their vote it harmed the ability of other MKs to preserve their independence in the election.

“Giving a seal of approval to [Knesset members] presenting unequivocal evidence of [their] vote for a candidate means consenting that the election will not be free…; neither [for] the Knesset member himself, nor [for] his fellow Knesset members,” wrote Sohlberg.

And Sohlberg rejected the coalition’s arguments that filming one’s ballot did not violate the secrecy of the ballot, saying that an MK recording how he voted from start to finish as the five Likud MKs did “testifies with certainty to whom the MK voted.”

Whether those MKs uploaded their video to social media or showed it to other MKs of party officials, “you cannot say that the vote was secret in any logical understanding of the phrase,” wrote Sohlberg.

Critically, Sohlberg determined that it was “clear and simple” that there was a “real possibility” that the violation of the secret ballot influenced the outcome of the second round of voting, noting that at least six MKs had publicized their vote by video, and that Elron won the first, untainted, round by three votes.

Sohlberg added that the coalition had not demonstrated in court any explanation as to how an MK recording their vote on video could be considered a secret ballot.

Comparing the situation to a situation in Jewish law when a child is asked whether a letter in a Torah scroll is correctly written, Sohlberg wrote that if you asked a child if a ballot recorded on video was secret “he would answer with his healthy common sense a sharp and clear response: no.”

And concluding his ruling, Sohlberg chastised the coalition and its claims that the court was “trampling” on the authority of the Knesset by intervening in its authority.

“The decision to order the annulment of the vote ‘was not made despite the high status of the legislature, but precisely because of that status’,” Sohlberg wrote, quoting from a previous High Court ruling, asserting that the court’s decision actually protected the independence of Knesset members to vote their conscience in elections for the state comptroller.