In boon for Likud, High Court says election czar lacked authority to ban voter tracking

The High Court of Justice decided on Wednesday that the entire Central Elections Committee (CEC), not just its chair, will decide whether or not polling station workers and party-appointed election observers in next month’s election will be allowed to send information regarding which voters have cast their ballot to party campaign headquarters.

The decision is a win for Prime Minister Benjamin Netanyahu’s Likud party, which makes extensive use of voter data on election day through the “Elector” digital app to maximize participation among its supporters, and which had petitioned the court against the decision by CEC Chairman Noam Sohlberg last month to ban the practice.

Membership on the CEC plenum is allocated proportionally according to the size of every Knesset faction, meaning Likud and its allied parties will have a majority to approve the use of voter data.

That decision itself could be challenged at the High Court, however.

After being petitioned by legal activist Shahar Ben Meir, Sohlberg issued a decision last month banning the relaying of voter data to campaign headquarters in real time on election day by party-affiliated polling station officials, asserting that the practice violates privacy laws and that the officials are there to supervise the vote, not to provide party campaigns with data for political operations.

Likud argued in response that Sohlberg had no authority to decide on the issue by himself, pointed out that the practice has been in use for several election cycles already, and said that the ban would severely harm its ability to encourage its likely supporters to vote, a key part of its election day strategy.

Ilan Bombach, the attorney representing the Likud party, said in court on Wednesday that the decision was “a terror attack against the Likud party,” an expression which earned him a reprimand from Justice Yael Willner.

Addressing the litigants at the end of Wednesday’s lengthy hearing, Willner said that the question of who has the authority to decide on the use of the voting data was “difficult” and “not simple,” and that no good answers were offered during the hearing.

She said that the CEC plenum should therefore make the decision, and do so as soon as possible.

Given that the Likud and the ultra-Orthodox political parties make extensive use of voter information during election day, it appears likely that the CEC will decide to allow the practice and overturn Sohlberg’s decision.

In summing up the hearing, Willner pointedly noted that the court’s position on the substantive claim over the use of voter data was that it does harm the right to privacy, as Sohlberg asserted in his decision banning the practice, meaning that even if the decision is overturned, that could end up being annulled.

During the hearing itself, Willner — in response to arguments made by the lawyer representing United Torah Judaism — made clear her concerns about the violation of the right to privacy inherent in the use of voting data, and hinted that the issue affected the ultra-Orthodox community in particular.

“You know that there are a lot of small communities, or certain [population] sectors, who can know if someone went to vote and if they didn’t vote maybe they’re not in favor of the party,” Willner told UTJ’s attorney Moshe Morgenstern.

Her reference to “population sectors” appeared aimed at the Haredi community, whose leading rabbis adjure Haredi men and women to vote for the Haredi parties as a matter of religious obligation.

“The moment there is exposure of what I think politically, or potential exposure, it is a clear violation of privacy, it is an injury to my autonomy, to my privacy, to expose what I vote or for which party,” she continued, adding that a decision not to vote was itself a political position, the exposure of which violated the right to privacy.

Justice Chaled Kabub made similar comments, while Justice Alex Stein said there was no legal basis or law that permitted the sharing of voter data.