Getting away from COVID-19 for a moment, many years ago I speculated that a democracy could vote itself out of existence through the election of a Party devoted to that goal; I never seemed to notice that this, roughly speaking, is what happened to the Wiemar Republic in the 1930s. It lends some urgency to the question of how a democracy can prevent such an occurrence, given that attempting to stop such a thing is nominally a transgression of democracy itself.
But can’t the same be said for permitting a democracy to destroy itself? Actually, I suspect not, despite the allure of the concept, because democracy is not an end in itself, nor an unalloyed good. Democracy is a tool that a group of people have chosen to use as their tool of governance. We like to believe it’s the best tool in all circumstances, but, quite frankly, this belief may only be a belief.
All that said, for the advocate of a democracy that is in the midst of enemies, real or perceived, that might wish to destroy that democracy, a safeguard is a desirable, yet nettlesome, thing, for well-regarded democracies are all about the rights accorded to the individual and respected by the State. How to go about that?
Well, it turns out Israel has to tried to thread that needle, as Lila Margalit explains on Lawfare:
The power to bar political parties from participating in elections was first recognized by the Israeli Supreme Court in 1964, in a case involving the “Socialist’s List,” a party affiliated with the pro-Nasserist Al-Ard movement, banned as a security threat a year earlier. Despite the lack of any explicit statutory authorization to disqualify political parties, the court held that the CEC [Central Elections Committee] had the inherent power to disqualify parties that seek to undermine the very existence of Israel. Two decades later, in 1985, the constitutional Basic Law: The Knesset was amended to provide statutory authority to disqualify parties that negate fundamental constitutional norms. The amendment was passed following another court ruling, which held that the CEC could not disqualify parties on additional grounds unless the law was changed.
Today, this provision—Article 7A of the Basic Law—allows parties as well as individual candidates to be barred from running for office if their purposes, activities or statements negate Israel’s existence as a Jewish and democratic state; incite racism; or support the armed struggle of an enemy state or a terrorist group against the country. The power to disqualify a party is held by the CEC, a highly politicized body that includes party representatives from the outgoing Knesset and is headed by a Supreme Court justice. The CEC’s decisions can be appealed to the Supreme Court, and any decision to disqualify individual candidates must be affirmatively approved by the court before it becomes final.
Interestingly enough, under Article 7A only right wing individuals and organizations have been banned. I do find it discouraging to see the CEC is highly politicized, though. It suggests to my mind that disqualification is just another weapon in the war between political parties, just another paving stone on the pathway to hell.
