by R. Gidon Rothstein
22 Tammuz: Tzitz Eliezer On Community Voting Rights
On the 22nd of Tammuz, 5707 (1947), Tzitz Eliezer (3;29) responded to a request to lay out rules for who can or should be selected to positions of leadership, who votes, and related issues. Much of this, he points out, he had already discussed in volume two of his work, responsum 24.
For those of us not immediately familiar with all of his writings, let’s review the main points of the earlier responsum: 1) Living in a place for twelve months defines a person as a resident, conferring voting rights, although a clear intention to live there enables the person to vote immediately. 2) One way to demonstrate such intent is to purchase a residence (there is some dispute as to whether inheriting or receiving a residence as a present suffices). Owning land does not confer voting rights.
[He leaves room for further discussion of a few issues. He implies the person buys the residence to live there (and moves in), which raises questions about whether owners of second homes should have the same rights as full-time residents. On another point, someone who owns land on which he does not reside still would seem to have some right to representation, seeing as how his/her land will be affected by communal leaders’ decisions. He does not address the points.]
Back to Tzitz Eliezer’s ideas: 3) The resident who wants to vote must be paid up on all taxes. 5) The same standards apply to cities as to religious communities. 6) Ideally—surprising to those accustomed to Western democracy, but commonplace in halachic discussions—the system of voting should credit both population and monetary impact (halachah always gave those who pay more the right to more of a voice in selecting communal leaders and policies). The longstanding rule of thumb assigned half the votes by population, half by monetary contribution. Only where that’s not possible should each tax-payer receive one vote.
7) Torah scholars, exempt from most communal taxes, nonetheless have full voting rights. 8) The voting system can be changed by the majority, or by the community’s appointed officers (even if one person). Any new system becomes established after having been used three times, and would then need to be changed by majority vote or the community’s appointed officers.
Vulnerabilities of the System as Described
[The room to change the voting methods create loopholes he will clarify in the current responsum. For example, it’s hard to imagine he meant a communal appointee can change the system to allow only his cronies to vote, have them do so three times, and then have locked everyone else out from effective change.]
He also wants whatever voting system is adopted to match the custom or laws of the local area. Too big a mismatch between what people expect based on their regular lives and what they experience in a shul community, for example, will lead to strife and dissension, which might drive away wealthy donors, a loss which tends to disproportionately harm the poor and needy, and should be avoided.
He sees some communal responsibility to maintain peace, in other words, including with the wealthy. Ra’anach 59 adds a reminder of the importance of enforcing rules. When there’s no enforcement, imposters grab power, steal from the poor, the rich stop contributing, and charity ends, which can go as far as the poor dying of famine.
The concerns about voice and participation have always led communities and their leaders to work to assure members feel their voice is heard, to create election procedures recognized as transparent and fair, and give communal members the confidence their leaders are working for the best outcomes for the whole community. In following their methods, we fulfill Devarim 32;7, she-al avicha ve-yagedcha, zekeinecha ve-yomeru lach, ask your father and he will tell you, your elders and they will say it to you.
Two sixteenth century authors, Maharashdam and Torat Chayyim, promoted a different selection process, to which Tzitz Eliezer responds, to defend his own view. The former, in Orach Chayyim Responsum 37, said the Torah’s requirement to follow the majority only applies when all the people are equally qualified to weigh in. For choosing a cantor, rabbi, or other communal functionary, a more qualified person has greater sway, even one against a thousand.
In his view, wealth constitutes a kind of qualification, evidence the person has a better understanding of the world (and therefore whom to hire). Torat Chayyim 2;40 agreed, pointing to Salonika, where the wealthy always occupied the top communal roles, advised by Torah scholars, paying little attention to the perspectives of the impoverished masses. Torat Chayyim thinks it the only logical course of action, because communal leaders mostly handle the finances, where they in fact have greater expertise and experience.
Not So Fast
Tzitz Eliezer questions those conclusions, starting with their citation of Yevamot 14a for support. In the course of a discussion we need not review, the Gemara suggested Beit Shammai thought they should be more halachically authoritative than Beit Hillel (despite being the minority) because they were sharper, more adept at halachic reasoning. To Maharashdam, they were telling us capabilities do affect whether we follow simple majority or not.
Tzitz Eliezer finds the proof problematic, since a Heavenly Voice said we do not follow Beit Shammai. Tosafot in two places says the point of the Voice was to refute the claim the more intellectually gifted get more of a say in deciding halachah.
Which is how we rule, Tzitz Eliezer notes.
Although two prominent sources support Maharshdam’s position. Sefer haChinuch 78 says we follow the majority only when the two sides have [roughly] equal Torah knowledge. Ramban to Sanhedrin quotes R. Hai Gaon, who told us to follow the side which gives a better reason (so majority is not the only factor).
Tzitz Eliezer, however, thinks the other sources outweigh these. In addition, he thinks R. Hai Gaon meant only to require a re-check based on a minority’s better reason. Once they advance a reason which should apparently win the day, the majority must rethink its view, and be sure it still holds as it did.
Money Isn’t Wisdom
Nor would granting all of Maharashdam’s claims about Torah wisdom, Tzitz Eliezer further notes, translate to money as readily as he assumes. More, Maharashdam had also justified his claim by citing the requirement for our Torah modes of behavior to be darchei noam, a pleasant path. He meant it to show the flaw in allowing ninety poor people to override the better considered views of ten wealthy ones, but Tzitz Eliezer thinks the reverse is no better. Because a person is poor, his views don’t count, asks Tzitz Eliezer?
Another sixteenth century work, R. Yitzchak Adarbi’s Divrei Rivot 224, offers a viable solution. He says communities appointed leaders from each of the financial strata, to ensure everyone was represented. Chatam Sofer agreed. Perhaps, Tzitz Eliezer suggests, Maharashdam meant to give the wealthy extra rights only where they advocate for the obviously correct solution [although what counts as “obvious” is obviously going to be a matter of dispute], similar to a Mishnah in Pe’ah that speaks of listening to one person in the face of overwhelming opposition when that one person asserts the truth.
Nor does the suggestion solve all the problems with Maharashdam’s view, since he had also referred to accepting the rulings of the seven tuvei ha-‘ir, the seven council members who traditionally led a community. The problem being, Tzitz Eliezer says, that they were selected for that purpose by the community as a whole.
A possible other answer, from the book Lechem Rav by the author of Lechem Mishneh on Rambam, is that for general matters we poll all communal members, but for areas where special expertise is involved—such as finances—we assign representation based on wealth. Tzitz Eliezer adds that Maset Binyamin 7 thought all communal members would vote for those who would select the city’s leaders, a kind of in-between way of working it, in that the people don’t vote directly for their leaders, but they do all have a say in the process.
Tzitz Eliezer closes by reiterating his understanding that—barring some well-established custom otherwise—those who have not fulfilled their financial obligations do not have a say.
What he leaves still somewhat murky is how we balance the desire to offer representation to all with the reality that some are more qualified than others. Maharashdam took an extreme position, but he was pointing to a legitimate concern, that many important issues are beyond the capabilities, experience, or insight of those who would like to weigh in. Divrei Rivot’s solution—representatives from all sections of the community—seems like a good one, but will still run into problems when the issues needing to be dealt with outstrip the insight of the elected leaders.
A continuing concern, for communities and polities of all sizes.