Democracy for Sale: The Halachic Price of a Bribery
Rav Yosef Yitzchak Meisels
It’s election season in both Israel and America, and there has been reports about certain candidates allegedly buying votes with money. Without getting into whether any of these allegations are true, let us examine the question from a halachic perspective, starting with the basics:
Where do we find elections in halacha?
The source is the Maharam of Rothenburg, as cited by the Rema (Shulchan Aruch, C. M. 163:1). He discusses a city that could not reach a consensus on major issues, including choosing its communal leaders and how to build their shul. He rules that all the taxpayers should gather and decide by vote. Before voting, each participant accepts a cherem, similar to a shevuah, committing himself to vote not in his own interest, but in the interest of the public. It is, in a sense, a direct democracy, in which every major decision is put to a referendum.
The Maharam’s ruling is based on the concept of partnership: the members of the kehilla are partners, and decisions are decided by majority vote.
The Divrei Malkiel (vol. I, siman 35) points out that the Maharam’s ruling requires explanation. According to the halachos of partnership, there is no concept of majority rule. Rather actions deemed necessary can be enforced even if some partners object, but when something is not essential, even a majority cannot necessarily force the minority to accept its wishes. Thus, if partners disagree about which candidate is best for the partnership or the best way to build the shul, the majority cannot simply impose its view on the minority.
Additionally, why is the cherem necessary? Why can’t someone vote in his own interest?
The Divrei Malkiel explains the Maharam’s ruling in light of the Rosh, his talmid. The Rosh writes in his teshuvos that without majority rule, communal affairs would become impossible, as a single individual could hold the entire community hostage. The majority must therefore prevail (Rosh, Klal 6, no. 5).
The Divrei Malkiel says that this is the basis for the Maharam’s ruling. The members of a kehilla entered into their partnership understanding that it could not function if every decision required unanimity. They therefore agreed to abide by the majority. This agreement, however, rested on a condition: each member must vote for the good of the kehilla, not for his own personal benefit. The cherem ensures that this condition is upheld.
Now that we understand the halachic framework for voting, we can delve into the subject of vote-buying.
The Chasam Sofer (Shu”t C. M. siman 160) discusses a case in which people were paid to elect one candidate among four others running for a rabbinical position. He concludes that if the bribery is confirmed, the votes cast as a result of it are void. His first reason is the Rema’s ruling in Choshen Mishpat 163, based on the Maharam mentioned above: a vote must serve the public interest, not the voter’s own. Someone who accepts a bribe for his vote clearly did not have the public’s interest in mind.
The election must therefore be held again, but those who accepted bribes are excluded from the new vote, even if they return the money, because they have already become close to the briber, on par with the high bar that dayanim are held to.
He adds, even if a majority accepted bribes, the new election will be decided by a minority, even though the result may not reflect what the majority actually wanted. His reasoning is that there is no alternative: those who sold their votes have forfeited their voting rights, and the remaining voters must decide the election.
Rav Eliezer Gordon of Telz (Teshuvos Rav Eliezer, Chelek I, Siman 4) discusses a similar case of bribery and strongly disagrees on two points. His first objection concerns the status of the innocent voters who supported the same candidate as those who accepted bribes.
Rav Eliezer Gordon argues disqualifying the bribe-takers vote does not change the fact that the majority’s opinion was in favor of Candidate A. Even if the majority’s candidate cannot be installed because those voters must be penalized, their opinion remains the majority opinion.
Consequently, even if there was only one innocent voter who supported Candidate A alongside the bribers, that voter cannot be penalized for their wrongdoing. Since his opinion aligns with the majority, he can argue that he is not obligated to accept Candidate B, whose >page 4 selection minority opinion. represents the
His second argument concerns the issue of closeness to the briber. He does not consider the mere fact that someone accepted a bribe sufficient to disqualify him from voting again. The eligibility bar is not that high for an individual voter, According to him, the bribes should simply be returned and the election held again, with everyone otherwise qualified to vote allowed to participate.
In conclusion, both authorities agree that a vote bought with money cannot stand, since it abandons the public interest on which the authority of majority rule rests. They disagree, however, on how to correct the situation. The Chasam Sofer is willing to let a minority decide the new election rather than allow the bribery to succeed, while Rav Eliezer Gordon refuses to disregard the votes of innocent people and insists on returning the bribes and allowing everyone to participate in the election again.
