Shabbat Parashat Toldot | 5770

P’ninat Mishpat: How to Elect Public Officials – part IV

(based on Eit Ladun – Rav Nir Vargon - Halacha Psuka, vol. 30

[We have seen that the normal way to decide civic matters is by majority vote, but that this majority may consist only of those who pay the local tax and that the people should be urged to cast their votes with noble intentions. We finish off this topic with the latter factors.]

The Chatam Sofer (Choshen Mishpat 160) infers from the wording of this requirement that if it becomes revealed that part of the constituency was bribed to vote as they did, the vote is null, even if there were only a handful of bribe takers. He reasons that even if they return the bribes, they cannot take part in the elections because they have demonstrated that their motivation on this matter is impure.

The Rama and the Maharam say that only one who pays the community tax is able to take part in their votes. However, the Tzitz Eliezer (III, 29) says that regarding voting for officials, we say that the minhag uproots the standard halacha. In a similar vein, the Masot Binyamin (7) says that a vote can be valid even if a significant percentage of the voters are related to a candidate, due to the minhag.

Harav Ezra Batzri (Dini Mamonot IV, p. 57) raised a different difficulty with some appointments. The Rama (CM 37:26) rules: “The leaders of the community whose job it is to deal with the needs of the community or individuals are like dayanim, and it is forbidden to appoint one who is unfit to serve as a judge due to his status as a sinner.” Therefore, in regard to Members of Knesset, among whom are some who are not mitzva observant, as well as women and non-Jews, who may not serve (for other reasons) as dayanim, how can they serve as communal leaders? We must say that their status derives from the law of the land, under which leaders do not have to fulfill any requirements to be valid.

Harav Yosef Goldberg (Tuvei Ha’ir, p. 45) denies that the aforementioned Rama raises problems. He says that just as litigants can accept objectively unfit dayanim (Sanhedrin 24a), the public can accept unfit communal appointees (Rav Batzri feels that the two are not comparable in this regard.) Rav Goldberg brings corroboration for his approach from the Shulchan Aruch (CM 33:18) that the public can accept witnesses whose testimony will have a special status and that this works even on behalf of relatives. On this issue, Rav Batzri’s claim seems to make more sense. Only on an individual basis may litigants accept unfit dayanim; a community cannot permanently accept sinners as dayanim. If they could, there would be no value to the rules of who can and cannot serve.  

However, there is another reason to allow such leaders. The Ri Migash (114) says that the appointment of a dayan who is unfit because of sin can be valid if his appointment is for only a set amount of time. Rav Yisraeli (Amud Hayemini 12) says a similar thing but only in regard to appointments that stem from the law of the land, which he feels is the basis of Israel’s leadership in our times.

Thus, we have seen the basis for the authority of public officials, whether based on communal leadership or the law of the land, as long as the elections were free, fair, and based on pure intent.  

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