High Court urges Knesset to redo state comptroller election ‘cleanly, properly’

The High Court of Justice strongly recommended on Thursday that the Knesset redo its vote of Michael Rabello for the position of state comptroller, due to concerns that the required secret ballot was violated in the original, highly controversial election earlier this month.

“We are suggesting a procedural step that does not interfere with the discretion of the Knesset. In simple Hebrew: do it again,” court Deputy President Noam Sohlberg said at the end of a lengthy hearing on the issue.

“Whatever you decide is fine, but just do it in a clean and proper manner,” he added.

Sohlberg issued the court’s recommendation after some six hours of oral arguments over petitions demanding the election be annulled.

Sohlberg gave the respondents, which includes the Knesset itself, Prime Minister Benjamin Netanyahu, and Rabello, who is Netanyahu’s longtime lawyer, until Monday to respond, saying that otherwise the court will issue a conditional order against them.

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The petitions noted that at least seven coalition MKs had recorded themselves voting for coalition candidate Rabello, allegedly on the instructions of senior Likud officials who mistrusted their vote. The petitioners argued that the requirement of Basic Law: State Comptroller that the election be held by secret ballot was therefore violated.

Rabello lost the first round of voting to retired Supreme Court justice Yosef Elron 60-57. A second round of voting had then begun, 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.
But during the second vote, at least seven coalition MKs recorded themselves voting for Rabello, who won the election 61-57, with some coalition MKs having apparently switched their votes from the first round.

Last week, coalition MK Sharren Haskel of the New Hope party said that coalition MKs “had been required to enter and record behind the voting booth in order to prove how they voted, like in undemocratic regimes.”

“At the moment there is an undesirable cloud… a bitter taste,” Sohlberg said of the original election.

“Some of the votes are apparently problematic. Members of Knesset acted in opposition to the instructions of Knesset legal adviser [not to record their votes] and through the creation of a new principle that it is ok to record [one’s vote],” the deputy court president added.

During the course of the hearing, all three presiding justices expressed concern that the secret ballot requirement had indeed been violated.

Justice Gila Canfy Steinitz said that at the very least “a type of violation” had been committed, in reference to two incidents in which coalition MKs left the voting booth with their voting slip showing Rabello’s name on display.

“It’s hard to say that these incidents do not violate the principle of a secret ballot. With the recording [inside the voting booth] it’s more difficult, [but] these [outside the ballot box] are easy cases,” said Canfy Steinitz.

The justices aimed several tough questions at the legal representatives of the Knesset, Netanyahu and Rabello.

Justice Ruth Ronen said that the sequence of events, from Elron winning the first round, to coalition MKs recording their votes only in the second round, and resulting in Rabello overturning Elron’s advantage and winning the election, was suspicious.

“The question is whether this is not an indication… that there was an instruction, a a request, a suggestion, a statement [to record the vote] that preceded this. Otherwise why did it happen?” she asked.

“Maybe the difference in voting [between the two rounds] shows the consequences,” she continued.

Sohlberg backed her up, asking “why it is not reasonable to assume that this is what happened.”

The court was, however, skeptical of arguments that Rabello could not take up the position because of his multiple conflicts of interest, working for Netanyahu and the Likud party, with Canfy Steinitz asserting that the issue could be resolved by a conflict of interest agreement.

And the justices also pressed the petitioners on what specific principle they wanted the court to establish, noting that formulating such a principle could cause unintended harm to other elections.

Ronen expressed concern that invalidating the state comptroller election because voters recorded their vote might incentivize bad actors to record their votes in other elections in order to invalidate them as well.

This latest appointment imbroglio comes against the background of the current government’s repeated efforts to increase its control over the judicial system and its attempt to fire Attorney General Gali Baharav-Miara through a move invalidated by the High Court due to improper procedure.

The state comptroller is not a law enforcement official, but is considered an important institution in impartially reviewing and auditing government functioning.

The petitioners in the case of Rabello argued that several aspects of the process by which a state comptroller is appointed were designed to deliberately free the office of political influence, including giving the Knesset, not the government, the power to appoint and dismiss the comptroller, and by having the election done by secret ballot to enable Knesset members to vote their conscience, free from political pressure.