"Let's just try it and see." That's a brief paraphrase of what the lawyers representing the state and Knesset said before the High Court of Justice this week in defense of the law that raises the electoral threshold. Their honesty was startling, but not the irresponsibility it revealed: The Knesset, once again, has enacted a change in election rules without thinking seriously about the range of possible outcomes.
The legislation, passed last March, requires a party to receive 3.25 percent of the total votes in a general election to be represented in the Knesset. Previously, the threshold was 2 percent; in the first decades of the state, it was 1 percent. On Sunday, the High Court heard a petition by two citizens and two civil rights organizations to overturn the law on the grounds that it is unfair to Arab voters. The higher threshold creates the risk that none of the Arab parties will make it into the next Knesset. Their only alternative, argued the petitioners, is to run together on a single ticket – thereby denying Arab voters a choice between ideologies and platforms.
In court, the lawyer representing the State Attorney's Office said the change is intended to create more stable coalitions. The potential for harm to the rights of Arab citizens, he said, was "mostly speculative." The Knesset's lawyer, for his part, was asked to address the possibility that the change would leave Arabs with less representation in the Knesset. "We're in a situation where these things are speculative," he answered. In other words, we can only guess what will happen in the upcoming election. It's an experiment. If things go badly, well, oops! The law can be changed again. In the meantime, the country must live with the parliament and government produced by this experiment.
Actually, the harm to the rights of Arab voters is just one potential consequence of the change in election rules. The machinery of democracy is delicate, and fiddling with the settings rarely has the intended effect.
The blatant example from Israeli history is the lasting damage caused by direct elections for prime minister. The electoral engineers who dreamed up that "reform" said it would strengthen the large parties and create more stable coalitions. No longer would parties with a few Knesset members be able to decide who would be prime minister, selling their support to the highest bidder.
Supporters of the direct elections were actually trying to reduce the influence of very specific parties – the ultra-Orthodox ones, perceived as holding the balance of power in the late 1970s and the 1980s. That perception was obsolete by the time the direct election system was enacted. The ultra-Orthodox parties had proven that no matter how much a Labor leader offered them, they preferred a Likud-led government. For Labor to take power, it would need to secure the support of the Arab parties instead. Never mind, the "reform" was enacted anyway.
It proved a disaster. Able to vote separately for prime minister and the Knesset, voters abandoned the larger parties in droves. In 1999, when Labor's Ehud Barak was elected prime minister, his slate won only 26 seats, barely more than a fifth of the Knesset. Patching together a parliamentary majority became harder. Coalitions were more rickety. In a fit of sanity, we returned to a pure parliamentary system in 2006. The large parties, however, have yet to recover.
Raising the electoral threshold is a more subtle change. But its aims are pernicious and its effect unknown. In the kindest reading, it's intended to help large parties by leaving voters with fewer choices. At least some backers of the change, in the right-wing parties of the outgoing government, hoped to reduce Arab representation.
Then again, the Arab lists might indeed unite. Will that lower Arab turnout, or raise it and finally bring Knesset representation proportional to the Arab share in the country's population? No one knows. What if pressure from Arab voters, denied a choice on Election Day, eventually forces the joint list to hold primaries in which all Arab citizens can vote? In that case, the right will have turned its fears into reality: It will have created a formally organized national minority with its own elections.
Anyone on the left can derive schadenfreude from the prospect that Shas, Eli Yishai's Ha'am Itanu party, or a scandal-damaged Yisrael Beitenu might fall just short of the new threshold, shrinking the right-wing bloc in the Knesset. The loss of those votes could put Benjamin Netanyahu in the opposition and Isaac Herzog in the Prime Minister's Office.
But that's short-term thinking. Those parties represent real constituencies that will lose their voice in the Knesset.
The beauty of Israel's original political system – a parliament chosen in proportional elections with a low threshold – is that it was inclusive. It co-opted small political communities into the workings of the state. Excluding them from the Knesset leaves them only the streets. Even if it creates more stable coalitions, which is hardly certain, it will create a less stable society.
The original system had many flaws. To paraphrase Winston Churchill, it was the worst form of democracy, except for all the others that we have tried from time to time. The electoral engineers have not done it, or us, any good.
Gershom Gorenberg is the author of "The Unmaking of Israel" and "The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977." Follow him on Twitter: @GershomG
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