Jewish law and fair elections - The Jewish Standard

Tuesday is Election Day here in the United States, but whether the elections at all levels will be fair and free ones may take weeks to determine.

All kinds of rumors are afloat about plans from left and right to undermine the basic democratic principles for which this nation stands. As will be seen, this should be of great concern to us as Jews.

These scenarios are all over the place. Among the most nonsensical ones has President Trump declaring martial law in an effort to shut down Election Day entirely. No president has such power, as an 1866 Supreme Court decision made very clear. According to the High Court in Ex parte Milligan, “martial rule can never exist where the courts are open.” As long as our courts remain open and are capable of operating, the military has no power to interfere in any way. A universal declaration of martial law, therefore, is not worth the paper it is printed on.

That Trump would want to subvert the electoral process, though, is not beyond reason because a midterm electoral defeat for him would be catastrophic to his presidency. Over the last two years, we have seen various efforts by his administration to gain greater control over how states run their elections. We also have heard countless statements from Trump and others casting doubt on the integrity of electoral results even before there are any results.

Just eight days ago, on Thursday, October 22, the Department of Justice filed a lawsuit in Alaska seeking to block the state’s various election boards from certifying the results of a Senate election before it is even held. The lawsuit, which Trump last Friday said was filed on his order, would invalidate Tuesday’s results unless the winner is the incumbent U.S. senator, Republican Dan Sullivan. A loss by Sullivan could give the Democrats control of the Senate, something Trump does not want to see happen.

The case is a most bizarre one, to be sure. Democrat Mary Peltola is running against Sullivan, but there also are two other candidates on the ballot: another Republican, David B. Leslie, and an independent candidate — a retired teacher named Dan J. Sullivan, Jr. The suit alleges that putting the retired teacher on the ballot was meant to confuse voters into siphoning off enough votes from the incumbent to give the Democrat Peltola a victory she otherwise would not have earned.

That is not how Sullivan Jr. got on the ballot, however, or why there is a second Republican candidate challenging his party’s choice. Under Alaska law, the top four candidates in a primary held in August advance to the general election, and party affiliation has nothing to do with it.

Dan J. Sullivan Jr. received a paltry 2.5 percent of the vote in August, but it was enough to keep him on the November ballot because he came in third.

As to whether Alaska’s voters were confused in August by the two Sullivans appearing on the same ballot, Peltola finished 13,518 votes ahead of incumbent senator Sullivan, a margin of approximately 8.1 percentage points. Not even Sullivan Jr.’s 4,107 votes would have put the incumbent at the top of the heap.

As Jews, we should be very concerned about the electoral shenanigans both parties try to pull. As I have written often in this column over the years, and despite how often we hear that this nation was founded on Christian values, this nation of ours was founded on Jewish values, and from the Torah on, one of those values is the obligation to let the people decide who their leaders should be.

Elections as we understand them did not exist in Moses’ day, or in any other until the modern era, but they did exist in some form, and the Torah itself makes that very clear. It recognized that the people themselves had a role to play, and our Sages of Blessed Memory and the halachic decisors who followed them reinforced that principle in many ways. In our day, most authorities agree that there is a Jewish obligation to participate in elections, and to insist that those elections are fair and free.

It was Moses, of course, who appointed the tribal leaders, but he did so only after the people had spoken. As he put it to them in Deuteronomy 1:13, “Choose for yourselves wise, discerning, and experienced men from your tribes, and I will appoint them as your heads.”

How the people made their choices known is not recorded, but that they had to make those choices is beyond dispute. In one way or another, the governed had to decide who will govern them, because, as the commentator Rashi explained it, “You know them, because you grew up with them.”

Rashi’s explanation also has something to say about elections in our day. We are not supposed to simply cast our votes, we have to make informed judgments in doing so. We did not “grow up” with the people running for office, so we have to make it our business to know who these candidates are and what they stand for.

Moses made this clear, as well, when he commanded this in Deuteronomy 16:18: “You [meaning the people] shall appoint judges and officials…in all your settlements.” Two verses later, he used just three simple words that require making informed decisions: “Tzedek, tzedek tirdof.” “Justice, justice shall you pursue.” We must be reasonably certain that the leaders we choose will see to it that justice is administered fairly and equitably across the board.

Moses was talking to Israel’s 12 tribes, but as the prophet Jeremiah made clear, his command extends to all Jews everywhere, including we who live in exile. As Jeremiah quoted God as saying to the Jews of the First Exile, “Seek the welfare of the city to which I have exiled you, and pray to the Lord on its behalf; for in its welfare you shall have welfare.” (See Jeremiah 29:7.)

This principle requiring the consent of the governed was later codified in the Babylonian Talmud (BT) B’rachot 55a in a most unusual and dramatic way.

At Sinai, Israel met its God and became a nation, and they may have been reluctant to ever leave the “mountain of God.” Given their history, they probably would have wanted to be where God was and nowhere else. So God tells Moses, “Let them make Me a Mishkan [a sanctuary; in effect, a portable Mount Sinai], that I may dwell among them.” (See Exodus 25:8.) Further on, God tells Moses to appoint his sister Miriam’s great-grandson, the master artisan Betzalel, to oversee the project. (See Exodus 31:1–5.)

The Talmud proposed a different version. God only suggested appointing Betzalel and then asked Moses whether his grandnephew was the right choice. Moses replied that God’s choice was good enough for him. Nevertheless, God then instructed Moses to ask the Israelites whether they would approve of the appointment, which they did.

We learn from this, said the Sage Rabbi Yitzchak, that “one may only appoint a leader over the community after consulting the community.” In other words, even a choice God makes must be approved by the people themselves.

We see this elsewhere in the Tanach, our Bible. For example, we see it when God told the prophet Samuel to choose Saul to be Israel’s first king. Samuel nevertheless summoned the Israelites to Gilgal to approve that appointment. (See 1 Samuel 11:14–15.)

As Jewish law developed over the centuries, later Jewish authorities developed this principle further.

The 19th century’s Rabbi Moses Sofer, known as the Chatam Sofer, even ruled that the community had to approve their leaders’ choice of a rabbi. (See his Choshen Mishpat, no. 19.)

In the 20th century, no less a halachic authority than Rabbi Moshe Feinstein, zt”l, ruled that voting was an explicit religious obligation. In a letter he wrote in 1984, he said that the “most fundamental responsibility incumbent on each individual is to register and to vote.” (See his letter as recorded in Rabbi Anthony Manning’s Democracy in Halacha and Hashkafa, Paragraph F, “Voting.”)

The “Rav,” Rabbi Joseph B. Soloveitchik, zt”l, often disagreed with “Rav Moshe” on halachic matters, but as Rabbi Mayer Twersky asserted in his 2020 essay, “To Sojourn in the Land,” he too regarded voting as an important responsibility of Jewish citizenship.

Reform and Conservative Jewish authorities likewise have emphasized voting as a religious and ethical responsibility based on the biblical requirement to pursue justice, protect human dignity, and seek the welfare of the larger society.

Almost certainly, there will be many challenges emerging from Tuesday’s vote.

It follows, however, that not only do we have an obligation to vote, but we also have an obligation to protect everyone’s right to vote, and that is especially true when the powers that be — Republicans or Democrats — would try to take that right away from us in one way or another.

Shammai Engelmayer is a rabbi-emeritus of Congregation Beth Israel of the Palisades and an adult education teacher in Bergen County. He is the author of eight books and the winner of 10 awards for his commentaries. His website is www.shammai.org.

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