How to Elect Public Officials
We saw last time that a community can accept majority rule as binding even regarding civic decisions that are not mandated by Torah law.]
What is to be done when some of the constituency that is supposed to vote does not exercise this right? The Maharam says that the opinion of someone who refuses to vote is disregarded and we follow the majority of the remaining voters. The Noda B'Yehuda (I, Choshen Mishpat 20) and the Chatam Sofer (61) claim that the Maharam was discussing only a case where the non-voter kept to his refusal to vote at the time of the vote. In contrast, if the deciding people convened without the knowledge of one of the people who had a right to take part and his opinion was not heard, then the vote's results are not binding even if the decision enjoyed a large majority (which those who were left out could not have arithmetically overcome).
This idea follows from the Rashba (II, 104). He says that, in all matters, a majority is one that emanates from within the whole group after deliberation. A majority that is separate from the whole, without a deliberation that includes all, is worth nothing. The Maharit extends this limitation to votes that are done through ballot boxes and by means of someone "collecting" people’s votes. This requirement concerned many poskim, as the accepted practice was to make decisions without the presence of the entire community, and various distinctions were drawn.
The Chatam Sofer (116) says that if public announcements were made about the gathering and vote, whoever chose not to come is deemed to be like one who appointed those who did come to be proxies to decide. This is difficult, as in regard to the vote of a beit din, we would never say that one who is absent is like one who appointed the others, and the Maharit (ibid.) rejects this distinction. The Chatam Sofer must posit that while having a majority that emanates from the whole applies to public decisions as well, its parameters differ according to the nature of the decision and its forum. Beit din requires a halachic deliberation before the decision can be arrived at, and therefore the participants must actually be present. Regarding the agreement of the public, awareness and acquiescence suffices.
The Birkei Yosef (CM 13) says that only the decision of appointed officials has to include all, but decisions of the public do not require full participation. The logic seems to be that the appointees were chosen to deliberate, whereas the members of the public only have the right to take part and vote. If we were to follow this distinction today, all of the Knesset’s members would have to take part in each vote, something that rarely happens, and we would have to rely on the fact that the present system has been accepted. The optimal situation would be (as the Chazon Ish, Bava Batra 4:15 says) if all would take part in choosing representatives and all representatives would take part in the vote.
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