A recent legal review by Moshe Cohen-Eliya, published in 'Maariv', explores the evolution of the legal tools available to the State of Israel under the 'defensive democracy' framework. The article outlines the historical timeline starting from 1965, when the disqualification of the Socialist list was upheld in the Yardor case due to the denial of the state's existence, even before explicit statutory authority was established.
The author notes a significant turning point in 1985 with the amendment of Basic Law: The Knesset, which granted the Central Elections Committee authority to disqualify lists that negate the Jewish and democratic character of the state or incite racism. Since this amendment, the Supreme Court has had to balance the constitutional right to vote and be elected against the necessity of preserving state values. The article reviews notable cases of disqualifications, from the 'Kach' and 'Kahane Chai' lists in the 90s to more complex instances, such as the disqualification of local lists based on racist campaigns.
According to Cohen-Eliya, the events of October 7 have created a new legal reality and shifted the consensus within the Supreme Court. The author emphasizes that the existence of a majority among Supreme Court justices to disqualify Sami Abu Shehadeh was an exceptional event in legal history. He explains that under existing doctrine, a 'critical mass' of statements was previously required to justify disqualification, as no candidate had ever been disqualified for a single publication alone. Thus, disqualifying a candidate based on a single post may signal a significant normative shift in the Court's approach to proving grounds for disqualification.
In conclusion, the author expresses a personal view that prioritizing criminal law over administrative-judicial disqualification mechanisms may be a more appropriate way to handle candidates who express racist or pro-terrorist views, avoiding a situation where entities defined as 'juristocratic elites' determine the identity of candidates at the ballot box.