by R. Gidon Rothstein
18 Nisan: R. Hayyim David Halevy on Fraudulent Communal Elections
What happens when there’s fraud in a voting process? It’s a question that arose for R. Hayyim David Halevy, Shu”t Aseh Lecha Rav 2;63, in a letter written to him on the eighteenth of Nisan.
Power That Wants to Stay in Power
The questioner was spokesperson for a faction of a beit kenesset, a synagogue, that was unhappy with their current leadership. While electioneering for a new slate of officers in upcoming elections, they realized that some of the current leadership’s prominent or wealthy members were promising goods and threatening ills to those who voted for or against them (I doubt they were as brazen as to say it like that, but they let their intentions be known).
Some people in the community had told the letter-writer’s group that they felt they had to vote with the old guard, even though they agreed with the need for new leadership. (If this doesn’t ring true, you are extraordinarily fortunate. In my experience, this happens all the time, people act out of fear of or in order to curry favor with the wealthy and powerful rather than in the way they know to be right or preferable).
They want R. Halevy’s guidance as to whether Jews may vote for a candidate out of such motives and, given that they know this is happening, whether the election results should be considered valid.
The Need for Le-Shem Shamayim
R. Halevy points out that this is an old question. Rema Choshen Mishpat163;1 had codified the view of Hagahot Maimoniyot (this and Teshuvot Maimoniyot were written by a student of Maharam of Rothenburg also named R. Meir of Rothenburg) in Laws of Prayer 11;2 that when a community cannot agree on a matter, they gather all the tax-paying householders (a standard Tzitz Eliezer upheld in the twentieth century as well, that the right to vote depended on paying one’s share of communal support) for a vote.
Before the vote, they must commit, on pain of excommunication, to share their view le-shem shamayim u-le-takkanat ha’ir, their best understanding of what Hashem would want, of what would be the best path for this community. Anyone who refuses to accept the threat of the ban does not get a vote, and his view is to be ignored (R. Halevy, a Sefaradi, seems to take for granted that these rules apply to Sefaradim as well, even though both sources are Ashkenazic).
The problem is that the side we suspect of using undue influence also makes arguments for their view, such that someone might be honestly convinced they’re more correct. Such a person has the right to vote for them, even if he entered the meeting room sure he was going to vote the other way. Just as long as it’s not because of offers or threats they made.
Inserting Randomness into the Rabbinic Selection Process
He points us to Chatam Sofer 5;Choshen Mishpat; 160, where a certain community had four candidates for rabbi. Since the letter of R. Halevy is fairly short, let’s see Chatam Sofer’s presentation as well. This community had decided to pick one of the four names by lottery and then vote on that candidate.
(Lotteries used to be a recognized way to make decisions with no obvious right answer; it is, to me, an idea we would benefit from using more. I recently read an article by Dr. Shahar Avin, who applied this idea to grants for scientific research. When I emailed him, he pointed me to Conall Boyle, who offers examples of lotteries used to assign scarce resourcs, like admissions to schools. It’s I think could work in national elections as well.)
The Evidence of Bribery
The majority rejected the first two rabbis whose names came up and accepted the third. Rumors later spread that many members of the community had accepted bribes from this rabbi’s relatives to select him —and the community decided to open a letter that one community member wrote to a brother of his in this rabbi’s current place of residence, which spoke of these bribes as well. Of course the rabbi’s side denies all of this, and wants him installed.
As matters now stand, there’s going to be continuing fighting in this community, and it can get nasty (says Chatam Sofer). To help them avoid that, he suggests that if they find two witnesses not related to either side who testify that bribes were paid, the appointment is invalid, since those voters had clearly violated their commitment to state their position le-shem shamayim.
The Pernicious Influence of Bribery
Chatam Sofer says that the bribe contaminates their rejection of the first two candidates as well. For all that the bribe mentioned only this rabbi, it would impel them to want to get to him, so they could earn their money. (This reminds us of at least two important ideas: 1) (as Chatam Sofer points out later in the responsum) we all function as judges in areas of our lives, and in those areas, we are required to meet the standards of conduct and truth-seeking we expect of judges of court cases, and 2) that we need to be less confident of our ability to get at the truth.)
The vote is invalid, he says, even if the rabbi would have won without the people who accepted bribes, because the others who voted for him could say it was because the first two were rejected, so they felt pressure to accept this one.
(I think Chatam Sofer means this even if the bribed voters were a minority of the rejecting group for the first two rabbis. While that would mean that, theoretically, the bribed people hadn’t influenced the outcome, they still might have impacted the conversation around the candidates when they were operating without proper motives. But that’s speculation on my part).
The Promoted Rabbi
Once they’re going to have to redo the selection, what do they do with the implicated rabbi? If there are witnesses that he was complicit, it’s easy; he is not qualified to be a rabbi at all until he repents (note that Chatam Sofer assumes he could repent in such a way as to rehabilitate himself, make himself once again a viable candidate).
Too, Chatam Sofer mentions the view of Tosafot Yeshanim to Yoma that paying to secure a position is only disqualifying if there’s someone better suited for the job (he does not tell us how to decide that question). Bach, however, thinks the Gemara excoriates Yehoshu’a b. Gamla for buying the High Priesthood even though he was far and away the best for the job, so he would say it applies even there.
A Second Vote
Whether or not he makes it, Chatam Sofer thinks the community should redo the lottery (he assumes there will be only three candidates this time, the two rabbis whose names came out before the suspect one and the one originally selected, if there’s no testimony that he was involved. He does not explain why the fourth one is left off, but I think it’s because he assumes that without the bribery one of the first two would have been chosen, if not this third one. I could easily imagine supporters of the fourth rabbi arguing, somewhat reasonably, that the whole first process had to be thrown out as tainted.)
The bribed community members cannot participate in this second vote, regardless of what amends they make or safeguards they insert, because they have a stake in this rabbi’s victory. (He says they’ve convinced themselves he’s right for the job. I think he means people who accept bribes don’t tell themselves they’re putting in a bad candidate, they tell themselves they’re taking money to get to the right conclusion anyway. Now that the money’s gone, they’ll still convince themselves they had the right candidate all along.)
The Unmasked Bribe-Takers
Chatam Sofer also raises the possibility that these people would not be allowed to participate in any future communal vote until they undergo a formal teshuvah process (this, too, is a balance that seems lost in our time—some don’t recognize that those who sin, even seriously, can be rehabilitated, while others don’t recognize the need for a formal rehabilitative process. It’s not enough to say sorry and wipe away the past).
He stands by this prescription even if that means the majority of the community loses their vote. They might object that he was recommending they be forced to accept a rabbi put in place by the minority; he counters that they had already accepted these four candidates as possibilities. That’s good enough to say they’re not obviously inappropriate, and is a good way to deal with any shows of force, any attempts to manipulate or misuse a communal process.
All that is true only if there are witnesses to the bribery. Without that, we have no halachic proof the vote was tainted (later in the responsum, he says that opening the letter violated the rule that we cannot open others’ mail. He seems unimpressed by the claim that it had information relevant to their communal business, but also doesn’t say they have to therefore ignore the information they discovered).
Without sufficient evidence, the rabbi gets to keep his job even if the communal members themselves admit they took bribes. We have an halachic principle that ein adam mesim atzmo rasha, people cannot incriminate themselves in court. They can obligate themselves to return the money (their words obligate them), but we cannot and do not believe them in court.
Back to R. Hayyim David Halevy
This was all a digression from our original responsum; we turned to Chatam Sofer for backup for the idea that voters in communal elections must accept a cherem, without which they need not be allowed to vote, no matter how much they assure us they will vote their conscience. (Another idea often ignored, that we sometimes need to put penalties in place, cannot simply trust people to live up to the better angels of their nature).
Today, that’s not feasible (cherem is ineffective in our times, since excommunicated people simply go elsewhere, and find a community willing to welcome them). Instead, the members of the meeting should be reminded ahead of time that they must vote with a clear conscience, and should always remember the first words of Shulchan Aruch (which he took from Moreh Nevuchim, as R. Halevy reminds us): “(People behave differently in the presence of kings than when they’re on their own) All the more so when a person remembers that the King fills the earth with His Glory, and is standing over him and seeing his actions.”
(In other words, we may not be able to excommunicate those who would mistreat the voting process, but they should remember that there’s a lot worse awaiting them, since Hashem always knows what they’re doing; as with so much in this responsum, this is good general advice, not just for communal elections.)
He closes with an uncharacteristically (to the tiny extent that I’m familiar with his writings) forceful recommendation that they read this letter aloud before the vote, so that the assembled community members know halachah’s view of what they’re about to do, the seriousness with which halachah treats it. Followed by his usual good wishes, in this case that the community find its best possible leadership and their best possible future.