In last week’s edition we discussed the basis in Halacha for electing the representatives of the community and who is eligible to vote. In this edition we continue the discussion.
Are there special voting powers and how is the majority determined?
In Halocha this discussion is phrased as; Do we follow Rov Minyan or Rov Binyan?
The Rov Minyan approach requires that we follow the absolute numerical majority with an equal voting right to each eligible person. The Rov Binyan approach either limits or gives greater weight to a specific segment of voters that are deemed to have greater stature or calibre. This would be akin to the policy of restricting the right to vote to land owners who were presumed to be more wise. This status may be defined in terms of people of wealth, position of importance or Talmidei Chachamim.
Advocates of Rov Binyan
Rabbi Shmuel d’Modina (known as the Maharshdam – 1505-1588 Salonika) discusses this dilemma and favours the position of Rov Binyan. Toras Chaim Hasefardi similarly writes that it does not make sense that the ignorant poor masses should be able to claim that they are the majority and thereby force their will upon the elite. He argues that since the elected governors are required to manage assets of the community, liabilities and expenses, it makes sense that greater weight be given to the wealthy who contribute more heavily.
This is the position of the Sefer Hachinuch who writes that the minority who are Chachomim should override the majority. The only time an absolute numerical majority is followed is in the Sanhedrin where they are all men of calibre.
The Ramban does not definitively say that we follow Rov Binyan, but he writes that if one is greater than the other, their opinion cannot be immediately disregarded just because they are the minority.
Advocates of Rov Minyan
The Tzitz Eliezer challenges this position. Even if Chochma (wisdom) may be considered as grounds for greater voting power, why should wealth give a person greater weight? If it is unfair to follow the 90% of the poor population over the 10% wealthy, then it is equally unfair the other way around. Is it just to deprive the poor of their rights just because they are impoverished? The fact that they contribute less is not of consequence. The small amount given by the poor man may in fact be even greater (proportionally) than the larger amount given by the wealthy.
The Tzitz Eliezer concludes that whilst significant weight should be given to the view of the “wiser” minority, ultimately the outcome is determined by a simple majority vote where each member has equal voting power.
There is an exception where the minority is able to overrule the majority. This is where the minority opinion follows the Halocha whereas the minority does not. The Mishna teaches that even if 99 paupers say that the owner of the field should collect and distribute the Peah produce and 1 says that it should be left for all to take, we follow him, because his opinion follows the Halocha.
Who is eligible to stand for election?
The Tzitz Eliezer writes that since the community custodians are responsible to manage finances and assets and communal funds and because they are entrusted with wide-ranging powers which would affect others, they must be אנשים שלימים חכמים ונבונים נאמנים עד למאד, knowledgeable and extremely trustworthy. They also must be known within the community.
They need to have the knowledge and skill to be able to manage the finances, knowing what to buy and what to sell, “what opportunities to draw close and what to push away”.
The Gemora teaches that one should not ask for accountings with the appointed Tzedaka collector. This is because only very honest people may be appointed to this position and we are not suspicious of those who are righteous אין חושדין לכשרים. The Gemora teaches that a Gabbai Tzedaka must be trustworthy like the great Rabbi Chananya ben Tradyon.
The Rambam rules that one who lacks Yiras Shamayim, even if they are knowledgeable in Torah, should not be appointed to a position of leadership over the Jewish community.
May a person who was elected by the majority refuse to take the position?
Whilst not obligated, one who is elected as an official by the majority should accept the position upon themselves. However they cannot be forced against their will.
How are decisions made by the elected custodians?
When elected by the community, the elected board of governors have the empowerment of the community to make decisions. Decisions are made following the majority rule within the body of custodians, with each member having equal voting right. Decisions do not need to be unanimous.
Pre-existing custom or by-laws can mandate unanimous votes or special majorities (e.g. 75%) for all or specific types of decisions. The Chasam Sofer (CM 116) writes that if a unanimous vote were to be required on every decision, nothing would get done and it is obvious that we follow the majority.
Quorum
Only decisions made by all of the elected governors together are binding. This does not require a unanimous decision, but the deliberations and voting need to be in the presence of all of the members just like the Sanhedrin.
If a minority of the members were not present when a decision was made and they later challenge the decision, the decision will not be binding. If the minority who are in opposition would have been present in deliberations, they may have been able to persuade the others with their arguments. Even if they choose to redeliberate and revote with all members present, it is questionable whether this will help. This is because the majority will be uncomfortable to retract their opinion so as to protect their pride.
- Shaalos uTeshuvos O.C. 37
- 2:40
- Mitzvah 78
- Sanhedrin 80
- Volume 3, Siman 24 and 29
- Peah 4:1
- Bava Basra 9a
- Bava Basra 10b
- Hilchos Melochim 1:7
- Radbaz 3:910, Rosh shu”t 6:5
- Choshen Mishpat 116
- Rashba Teshuvos 5:126
