The full Central Elections Committee is expected on Sunday to reconsider a ban on parties receiving identified, real-time voting information from polling stations, after the High Court raised doubts Wednesday over whether committee chairman Justice Noam Sohlberg had the authority to impose it alone.
The development gives Likud a procedural opening to reverse the prohibition less than two months before the October 27 election.
The justices separated two questions that had been treated together until now: whether Sohlberg had the authority to impose the ban alone, and whether transferring the information infringes upon voters’ privacy.
Justices Yael Willner, Alex Stein, and Khaled Kabub had difficulties with Sohlberg deciding the matter without bringing it before the full committee. At the same time, they indicated that the underlying privacy concern was substantial.
Following a break in the hearing, the panel proposed that Sohlberg’s decision be placed before the committee as his legal opinion and that the committee make the operative decision.
Dispute not resolved, parties preserve arguments
The judges emphasized that they were not resolving the dispute and that the parties could preserve their arguments following the committee’s decision.
Without an agreement, the court indicated that it could issue a formal order requiring the respondents to justify Sohlberg’s authority to decide the matter alone.
The practical significance is considerable.
The committee has 31 members allocated according to the strength of the factions in the outgoing Knesset, including 18 coalition representatives. Likud has eight members, making it the largest faction on the committee.
That composition makes a reversal possible, although it does not determine how the committee will vote. Sohlberg’s legal position is also expected to carry significant weight when the matter returns to the committee.
The case concerns information identifying who has arrived and voted, not how anyone voted, which remains secret.
For several election cycles, party representatives serving on polling-station committees or as observers have reported voters’ arrival in real time.
Campaigns could compare that information with their databases and concentrate calls, messages, and visits on supporters who had not yet voted, often using applications such as Elector.
The prohibition is not limited to a particular application.
Sohlberg ruled on August 4 that party representatives may not transfer identified information about a person’s presence at a polling station, whether the person voted, or the circumstances of the vote, regardless of how the information is sent.
Likud argued that Sohlberg lacked the authority to impose the restriction alone and that changing a longstanding practice during an election campaign would severely disrupt its preparations.
Attorney Ilan Bombach, representing Likud, initially described the prohibition during Wednesday’s hearing as a “terror attack” against the party.
“This destroys its election,” he said, later calling the anticipated damage “enormous and colossal.”
Willner objected to the terminology and asked that it be reserved for the atrocities Israel has experienced. Bombach then reframed his statement as a claim of severe harm to Likud.
Kabub questioned why the prohibition would harm Likud in particular when it applies to every party. Bombach replied that Likud had spent years developing a large voter database and dedicated software around the reporting system.
Kabub responded by questioning whether the legal test should depend on which party had the oldest voter registry and could extract the most information from it.
Likud’s argument was not that it needed to know how people voted.
Information argued to be vital for turnout campaign by Likud
It maintained that information showing who had already voted was essential to operating its turnout campaign and that parties had relied on the practice for years without being stopped.
The justices nevertheless appeared receptive to the privacy argument underlying Sohlberg’s decision.
Willner said there was substance to the claim that a person may not want others to know whether they voted, describing that knowledge as an intrusion into individual autonomy and the private sphere.
Stein similarly questioned the creation of a database that allows parties to identify who had and had not voted.
The state defended Sohlberg’s authority during the hearing.
Its representative argued that the committee chairman has an inherent administrative responsibility to prevent polling-station officials from engaging in conduct he considers unlawful, particularly when no legislation expressly permits transferring the information.
The judges also raised questions about the State Attorney’s Office representing Sohlberg, the full Elections Committee, the attorney-general, and the Privacy Protection Authority in the same proceeding, despite the possibility that the full committee could take a position different to that of its chairman.
Sohlberg originally ruled that polling-station representatives receive voter information to administer and supervise the election, not to supply political parties with data for campaign operations.
Years of unchallenged reporting, he found, did not make the practice lawful in the absence of legal authorization.
As an alternative, he directed the Central Elections Committee to publish aggregate turnout figures for every ordinary polling station at least four times on Election Day.
Those figures would show how many people voted without identifying them.
Likud contends that aggregate figures cannot replace identified reporting because they do not tell campaigns which supporters have not voted.
The full committee is now expected to consider the question on Sunday. Its decision could itself be challenged in the High Court, at which point the dispute would likely shift from who had the authority to decide the matter to whether real-time, identified voter reporting is lawful.