Case on the Restriction of Balloting Hours

[__ KCCR __, 2012Hun-Ma815, 905(consolidated), July 25, 2013]

In the case, the Constitutional Court dismissed the request to review on the constitutionality of legislative inaction for not granting paid holiday for the election day; and rejected the request to review on the constitutionality of Article 155 Section 1 of the Public Official Election Act that stipulates a polling place shall be closed at 6:00 p.m. on the election day, for not violating the right to vote.

Background of the Case

Facing the 18^th Presidential Election on December 19, 2012, Complainants filed this constitutional complaint to request the confirmation of unconstitutionality of the legislative inaction for not granting the paid holiday for the election day despite the election day is Wednesday that is a weekday; and to request the confirmation of unconstitutionality of Article 155 Section 1 of the Public Official Election Act that stipulates a polling place shall be open from 6 a.m. to 6 p.m. on the election day (Wednesday), alleging it is impossible for the complainants who are owner-operators or day-workers to arrive at a polling place by 6 p.m. on weekdays, due to the nature of their occupations.

Provision at Issue

The subject matters of this case are whether the legislative inaction for not granting the paid holiday for the presidential election day violates the fundamental rights; and whether the part of ‘at 6 p.m.’ of Article 155 Section 1 of the Public Official Election Act(revised by Act No. 7189 on March 12, 2004) violates the fundamental rights. The contents of the provision at issue are followed as below:

Public Official Election Act (revised by Act no. 7189 on March 12, 2004)

Article 155 (Balloting Hours)

(1) A polling station shall open at 6 a.m. and close at 6 p.m. (8 p.m. in the special election, etc.) on the election day: Provided, That if there are electors waiting to vote at the polling station at the time it is closed, the number tickets shall be given to them and the polling station shall be closed after they finish voting.

Summary of the Decision

1. Legislative obligation to grant paid holiday for the election day

The legislative obligation under the Constitution is a required element for the constitutional complaint against the legislative inaction. Despite Article 1 Section 2 of the Constitution provides the principle of national sovereignty; Article 24 of the Constitution provides the right to vote; and Article 34 of the Constitution provides the right to humane livelihood, these articles of the Constitution do not specify any legislative obligation to grant a paid holiday for an election day (Wednesday, in case of an election upon the termination of his/her office). The discretion to choose a measure to protect the right to vote is vested in the Legislator. Therefore, the request against the legislative inaction for not grating paid holiday for the election day is not justiciable.

2. Violation of the right to vote

Article 155 Section 1 of the Public Official Election Act intends to confirm the result of election, to ensure the exercise of right to vote, and to allocate administrative resources to manage balloting and ballot-counting at a proper level. With the consideration of the above provision that requires opening a polling place at 6 a.m. for enabling to vote before usual business hours and Article 10 of the Labor Standards Act that stipulates an employer shall not reject a request from a worker to grant time necessary to exercise the right to vote during work hours, a voter who is a worker would be allowed to vote during work hours. In addition, a voter may vote absentee at any absentee polling station of the Nation during the absentee ballot period (from 5 days prior to an election to 2 days prior to an election, Friday and Saturday in case of election upon the termination of his/her office) without prior registration, according to the integrated electoral register that was established after this constitutional complaint. An election upon the termination of his/her office is also designated as a holiday of public office. Accordingly, Article 155 Section 1 of the Public official Election Act is a way to coordinate the protection of the right to vote and the necessity of limiting ballot hours, not depriving voters of substantial opportunities to exercise their rights to vote. Therefore, the above provision does not violate the right to vote under the principle against excessive restriction.

3. Violation of the right to equality

Article 155 Section 1 of the Public Official Election Act provides that a polling place shall be open earlier for an election upon the termination of his/her office than for a special election. Nonetheless, the difference in open hours is reasonable, based on the consideration that a special election is neither a holiday of public office nor a stipulated holiday of private enterprise; and a special election that is held at certain of electoral districts would impose less burden in extending ballot hours. Therefore, the above provision does not violate the right to equality.