Israel’s next general election is scheduled for March 17, 2015, just a little over two years since the prior election that took place on January 22, 2013. According to Basic Law: the Knesset, elections to the Knesset (Israel’s parliament) are supposed to take place every four years. However, the Knesset can decide to dissolve itself and call for early elections following the passage of legislation supported by the majority of its members. The Knesset passed the Law for the Dissolution of the 19th Knesset, 5775-2014 on December 8, 2014, calling for early elections to take place this month. This blog post is part of our Frequently Asked Legal Questions series.
In this post I will explain some of the basic rules governing the upcoming elections in Israel.
1. Who can compete?
Israel has a parliamentary system, not a presidential one. The parliamentary elections are based on a nationwide proportional representation system. Under this system, all Israeli voters will vote for candidate lists produced by the different parties that are seeking seats in the 20th Knesset. There are a total of twenty-six candidate lists in the upcoming election. Only lists that receive more than 3.25% of the votes cast will gain seats in the 120-seat Knesset. To ensure representation in the upcoming Knesset, several small Arab parties have joined together in a unified candidate list. It is likely that the threshold requirement will leave some small single-issue candidate lists outside the Knesset.
As a general rule, under Basic Law: the Knesset, every Israeli citizen who on the day of the admission of a candidate list containing his name is twenty-one years of age has a right to be elected, unless he or she was deprived of this right by virtue of law. A person may also be denied the right to be elected if he or she has been convicted of an offense involving “moral turpitude” that resulted in imprisonment of at least three months, and seven years have not passed since the end of the imprisonment. In Israeli elections candidates do not run independently but rather as a part of a list of candidates.
In addition, candidates and candidate lists will not be permitted to participate in elections to the Knesset if their objectives or actions, expressly or by implication, include negating the existence of the State of Israel as a Jewish and democratic state; incitement to racism; or support of armed struggle, by a hostile state or a terrorist organization, against the State of Israel.
The disqualification of candidates and candidate lists based on any of these grounds is very limited. In two decisions rendered by Israel’s Supreme Court on February 16, 2015, the Court decided not to approve the disqualification of two candidates, one from a Jewish nationalist party and the other from the Arab unified list, whose actions and statements had allegedly violated the participation requirements enumerated above.
2. How will the government be formed?
In accordance with Basic Law: the Government, after the election results are published, the president of Israel will assign the task of forming a government to a Knesset member “who has notified him [or her], that [s]he is prepared to accept the task” within seven days from the publication of the election results. Since the establishment of the state, no candidate list has ever received more than half of the votes in any election. A notification made by a Knesset member, therefore, reflects his/her belief in their ability to form a coalition government and head it as prime minister. The would-be prime minister has 28 days to assemble a majority coalition, a period that can be extended by the president for an aggregate of an additional 14 days. The government and its ministers are installed following a vote of confidence by at least 61 Knesset members.
3. What are the main principles governing the elections?
- General – all citizens of the State, age 18 and above, have the right to participate.
- National – the entire State of Israel is considered a single electoral district for the purpose of calculating the results of the election.
- Direct – winners are determined directly according to the vote of each person, in other words, not by an intermediary body, and not by proxies.
- Equitable – each voter has one ballot. All voters are equal in their power to influence the election. Another aspect of equality is the obligation to ensure the equal opportunity of each candidate list running for election.
- Secret – no one but the voter knows how he/she cast their ballot. Secret ballots are in order to prevent pressure or unfair influence on the voter, which could prevent the voter from casting a ballot according to their individual inclination and preference. [and]
- Proportional – mandates for the Knesset are allocated according to the proportion of votes given to each party.
4. What is the Central Elections Committee?
The Knesset Central Election Committee (KCEC) is responsible for implementing the legal requirements concerning elections. The KCEC is established under the Knesset Elections Law (Consolidated Version) 5729-1969 and is composed of representatives of the candidate lists of the outgoing Knesset. The KCEC is headed by a judge of Israel’s Supreme Court; currently Judge Salim Joubran. The KCEC’s decisions may be appealed to the Supreme Court.
5. Are there any restrictions on campaign financing?
Israel’s Political Parties (Financing) Law, 5733-1973 authorizes governmental financing of elections as well as of political parties’ ongoing expenses (§ 2-5). It establishes caps on spending as well as on private contributions. For more information, you may wish to read a report that I wrote in 2009 on the campaign finance laws of Israel.
6. What is election propaganda and why is it important?
Israel’s Elections (Modes of Propaganda) Law, 5719-1959 provides several restrictions on the publication of election propaganda. The Law prohibits the broadcasting of TV or radio election propaganda except during fourteen days prior to the elections. The length of airtime allocated for candidate lists is determined by the chairman of the KCEC based on criteria provided by the Law.
The determination of whether a publication constitutes election propaganda is based on the judicially established test of dominance. Accordingly, a broadcast will be considered election propaganda if its dominant effect is influence on voters. Among the factors that need to be considered to establish such dominant effect are: the date of broadcast; the identity of the initiator of the broadcast; the expected scope of influence on voters; whether this is a regular type of broadcast or one specifically done in anticipation of the elections; the importance of broadcasting the program in proximity to the elections; and naturally, common sense.
Having evaluated the circumstances of Prime Minister Binyamin Netanyahu’s speech on the Iranian nuclear issue before both houses of the U.S. Congress two weeks before the Israeli elections in accordance with the dominance test, the KCEC chairman determined that the speech in itself did not constitute election propaganda. In his February 16, 2015 decision, Joubran listed the following reasons for this determination: the “immense newsworthiness of the speech”; it being the third speech by the Prime Minister before the US Congress; the timeliness of the speech independent of the Israeli elections; the lack of usefulness in blocking Israeli broadcasting channels when foreign channels would be able to broadcast the speech; and the established rule on limiting freedom of speech only at extremely exceptional cases.
Considering that the speech would be given only two weeks prior to the elections, however, Joubran ordered that the Israeli broadcasting companies delay broadcasting Mr. Netanyahu’s speech for five minutes to allow examination and exclusion of statements that amount to election propaganda. An appeal against this decision was rejected by the Supreme Court on February 25, 2015, mainly based on the symbolic value of the delay rather than on its futility in an era of unlimited internet access (H.C 1280/15 Forman v. KCEC chairman).
7. What limitations are there on campaign propaganda?
- Prohibition on using images of children
The Law prohibits the use of images of children under the age of fifteen in election propaganda. This prohibition does not apply when the children appear in a photograph or a recording engaged in a “regular activity.” The applicability of this limitation to a film depicting disorderly nursery school children acting as heads of competing candidate lists being scolded by Mr. Netanyahu was the subject of a recent decision by the KCEC chairman, who disqualified the advertisement.
- Prohibition on giving presents
Another restriction imposed by the Law relates to election propaganda that involves the giving of presents. Joubran has opined that the definition of what constitutes a “present” must be narrowly applied, to avoid a slippery slope. He determined that the distribution of inexpensive dried fruits by the Jewish Home candidate list in honor of the Jewish Festival of the Trees violated the prohibition on distribution of presents.
Joubran similarly prohibited the distribution of thousands of copies of the “Charlie Hebdo” special issue to the public in an envelope containing the name of a political party on grounds that it constituted a “present”. This decision, however, was reversed by the Supreme Court on February 25, 2015 in HCJ 979/15 Israel Beitenu Party v. Chairman of the KCEC. The Court held that the public distribution of the special issue to voters was intended as a response to the attempt to block its dissemination. Accordingly, the dispute over the distribution was not about its negligible economic value (about 3 euros); rather, it concerned the freedom to disseminate political speech. The Court concluded that the distribution of the special issue by the petitioners in the manner described in the petition was legitimate campaign propaganda and did not constitute a prohibited “present”. The Court further determined that the Chairman of the KCEC was not authorized to prevent the dissemination of election propaganda based on its potential to harm religious feelings.
- Prohibition of incitement of violence
The decision whether to prohibit election propaganda because of its incitement of violence is based on the general test of “near certainty.” Accordingly, Joubran rejected a request to prohibit election propaganda portraying a Labor Party candidate as a Hamas candidate, determining that there was no near certainty of violence ensuing.
Joubran similarly rejected, on the same ground, a petition to prohibit an election propaganda slogan reflecting the political campaign of a party advocating for a population exchange between Israel and a future state of Palestine in the context of a mutually agreed agreement.
8. So, who will head the next government?
Well, of course I cannot answer this!
In the meantime, I hope this brief overview of some of the legal issues related to Israel’s upcoming election is useful. Let me know in the comments if you have any questions.