3. National Assembly Election Redistricting Plan Case
[13-2 KCCR 502, 2000Hun-Ma92, 2000Hun-Ma240 (consolidated), October 25, 2001]
Contents of the Decision
1. Limits to legislative discretion in redistricting electoral districts. 2. Permissible limit on population disparity in electoral districts. 3. A case where the redistricting discriminating electors in a particular district from those in other electoral districts was not regarded as gerrymandering. 4. Whether to declare the entire Election Redistricting Plan unconstitutional when parts of the Plan has unconstitutional elements. 5. Reasons for giving temporary effects to provisions declared nonconforming to the Constitution.
Summary of the Decision
1. A wide scope of legislative discretion is recognized in developing the National Assembly Election Redistricting Plan. However, the constitutional principle of equal election limits legislative discretion in the matter. First, the equality in the value of each vote is the most important and basic factor in constituency rezoning. Accordingly, unreasonable redrawing of electoral districts violating the constitutional mandate of equal weight of votes is arbitrary, and hence, is unconstitutional. Second, gerrymandering is not within the constitutional limits of legislative discretion, and is unconstitutional. Gerrymandering refers to intentional discrimination of electors in a particular region through the arbitrary division of electoral districts. It would be a case of gerrymandering if electors in a particular electoral district lose opportunities to participate in political affairs because of an arbitrary division of electoral districts, or if the constituency is redrawn to prevent the election of a candidate supported by electors from a particular region. 2. There are many suggestions for permissible limits on population disparity in electoral districts, and at this moment, the Court can consider adopting two of these options. One is to set the permissible maximum deviation of population in an electoral district from the average population of electoral districts at 33⅓% (equivalent to set-
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ting the permissible maximum ratio between the most populous district and the least at 2:1).
The other is to set the maximum deviation at 50% (in this case, the maximum ratio between the most populous district and the least populous district would be 3:1).
Adoption of the 33⅓% criterion would create many problems because factors other than population, such as administrative district division and the total number of seats in the National Assembly, must be accounted for when readjusting the national electoral constituencies. It has only been 5 years since the Court first deliberated on the problem of population disparity in electoral districts, and idealistic approach disregarding practical limits would be imprudent. Therefore, the Court will review the instant case using the 50% criterion. However, the Court will have to employ the 33⅓% or a more exacting criterion after some time from now. In case of “Kyonggi Anyang DonganKu” Electoral District, it has a population 57% more than the average population of electoral districts. Such division of electoral districts is beyond the limits of legislative discretion, and it violates the complainants’ constitutional right to vote and the right to equality. 3. In case of “Incheon Seo-Ku and Kangwha-Kun B” Electoral District, it can be concluded that the legislature did not arbitrarily readjust the electoral district to discriminate electors in Seo-Ku Kumdan-Dong.
Right before the 16th General Election for the National Assembly in 2000, Kangwha-Kun had a population less than the minimum required to constitute an independent electoral district. So the National Assembly members agreed to coalesce Kumdan-Dong, a part of Seo-Ku, to Kangwha-Kun to make a single electoral district because Kumdan-Dong was the most populous and was relatively close to Kangwha-Kun compared to all other Dongs in Seo-Ku. 4. In the instant case, the right to equality and the right to vote are violated by a part of the Election Redistricting Plan, namely, zoning of “”Kyonggi Anyang Dongan-Ku” Electoral District. However, there is a problem whether to declare the entire Election Redistricting Plan unconstitutional when only parts of the Plan has unconstitutional elements. This depends on whether the Redistricting Plan can be divided into separate entities. In the 95Hun-Ma224 decision, the Court decided that the Election Redistricting Plan formed an inseparable entity, and that the whole Plan had to be declared unconstitutional if parts of the Plan had unconstitutional elements. This is still reasonable for the defense of a constitutional order and the protection of citizens’ basic rights, and the Court will maintain the position. 5. The Court could render a decision of simple unconstitutionality. However, the following facts have to be considered in doing so: that General Elections for the National Assembly have already been held based on the current Redistricting Plan; that there may arise a
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vacuum in law if a special election or re-election for a particular district is to be held before the revision of the Plan, because the speedy revision of the Plan would be impossible due to its political nature; and that in order to maintain homogeneity in the composition to the National Assembly and to prevent confusion caused by changes in the electoral district, it is better that a special election or re-election is held under the present Redistricting Plan. Therefore, the Court finds the instant Redistricting Plan nonconforming to the Constitution, but orders it to remain effective temporarily until December 31, 2003, by which the legislature must revise the Plan.
Justice Kwon Seong’s Concurring Opinion
Equality in the value of each vote is not the foremost concern in drawing up the National Assembly Election Redistricting Plan, but it is only one of many important factors to be considered. Another factor to be considered is proper representation of electors in a particular electoral district. The most clear example to substantiate the claim that a National Assembly member indeed represents the people is given when a National Assembly member is elected into the office by electors of an independent electoral district (such as an administrative district).
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Considering the historical development of the legislature, the principle of protection of minority and the principle of national solidarity, it is reasonable and justifiable to make each National Assembly member represent a certain electoral body. Since the present election system adopts the minor electorate system, or single-seat constituency system, ensuring a sense of connection between electors and a National Assembly member is as important as achieving equality in the value of each vote when finalizing the Election Redistricting Plan. Separating a part of an administrative district and adding it to another administrative district to achieve mathematical equality in the value of each vote would weaken the link between electors and the elected. Such practice would also violate the right to vote of those electors who were separated from others in the old electoral district and were forced to vote in a newly formed electoral district, and hence, is unconstitutional. Under the current Act on the Election of Public Officials and the Prevention of Election Malpractices, three electoral districts, namely, “Pusan Puk-Ku and Kangso-Ku B” Electoral District, “Haeundae-Ku and Kijang-Kun B” Electoral District, and “Incheon Seo-Ku and Kangwha-Kun B” Electoral District, are formed by adding electors separated from their original administrative districts, and these parts of the Redistricting Plan violate the same electors’ right to vote. Because of the inseparability of the Redis-
tricting Plan, the whole Plan is unconstitutional. The Court should also point out the unconstitutionality of Article 3 of the Addenda to the Act on the Election of Public Officials and the Prevention of Election Malpractices allowing formation of the above electoral districts.
Dissenting Opinions of Justices Han Dae-hyun and Ha Kyung-chull
According to the Court’s decision in the 95Hun-Ma224 case on December 27, 1995, an electoral district with a population not exceeding the 60% maximum deviation limit from the average population of electoral districts is not unconstitutional. As of March 22, 2000, population in “Kyonggi Anyang Dongan-Ku” Electoral District is 328,383, about 57% more than the average population of electoral districts, namely, 208,917. Therefore, under the criterion set by the 95Hun-Ma224 decision, the present Redistricting Plan is not unconstitutional. Considering deference to the legislative power, it would be imprudent for the Court to change its earlier holding in 1995. But we agree with the opinion of the Justices of the majority regarding the Election Redistricting Plan to be employed for the National Assembly Election in 2004. Instead of rendering a decision of nonconformity to the Constitution, the Court should reject the complaint, while suggesting that the new Redistricting Plan for the National Assembly Election in 2004 should set the permissible maximum deviation of population in an electoral district from the average population of electoral districts at 50% and that the new criterion will be used for constitutional review from then on.
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Provisions on Review
Act on the Election of Public Officials and the Prevention of Election Malpractices (am ended by Act N 6265 o. on F ebruary 16, 2000) Parts on “Kyonggi Anyang Dongan-Ku” Electoral District and “Incheon Seo-Ku and Kangwha-Kun B” Electoral District in the National Assembly Election Redistricting Plan, Table 1, Article 25(2): omitted
Related Provisions
The Constitution Articles 11(1), 41(1), (2), (3) Act on the Election of Public Officials and the Prevention of Election Malpractices (am ended by Act N 6265 o. on F ebruary 16, 2000) Article 21 (Full Number of National Assembly Members) (1) The full number of National Assembly members, for local constituency members and proportional representatives combined, shall be 273. (2) The full number of National Assembly members to be elected in a single local constituency shall be one. Article 25 (Demarcation of Local Election Districts for National Assembly) (1) The local constituency for National Assembly (hereinafter referred to as the “election district for National Assembly”) shall be demarcated in the area under jurisdiction of the City/Province, in consideration of the population, administrative districts, geographical features, traffic, and other conditions, but a Ku (including an autonomous Ku), Shi (meaning a Shi where a Ku is not established), or Kun (hereinafter referred to as a “Ku/Shi/Kun”1)) shall not be partly divided and made to belong to another election district for National Assembly. (2) [omitted] Article 3 of Addenda (Special Cases concerning Demarcation of Local Election Districts for National Assembly Members) Notwithstanding the provision of the latter part of Article 25(1), in the election of National Assembly members (including the special election, etc.), a divided part of the Haeundae Ku of the Pusan Metropolitan City may be made to belong to the local election district for the National Assembly member for Kijang Kun B, Haeundae Ku, and a divided part of the Puk Ku of Pusan Metropolitan City to the local election district for the National Assembly member for Kangso Ku B, Puk Ku, and a divided part of the Seo Ku of the Incheon Metropolitan City to the local election district for the National Assembly member for Kangwha Kun B, Seo Ku.
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1).
A c y is c lle shi. A c y is m d u o D t ic s c lle Ku. W h it a d it a e p f is r t a d it in a Ku a e n ig b r o d c lle Dong. r e h oh o s a d S m c ie a e n t s p r t d in o o e it s r o e a ae t d t ic s Ad tr t w h n t e o g p p la io t b c m a c y is c lle Kun. is r t . is ic it o nuh ou t n o eo e it a d
Related Precedents
7-2 KCCR 760, 95Hun-Ma224 et. al., December 27, 1995 10-2 KCCR 742, 96Hun-Ma54, November 26, 1998 10-2 KCCR 764, 96Hun-Ma74 et. al., November 26, 1998
Parties
Complainants
1. Jeong Jin-sup (2000Hun-Ma92) Counsel (1) Attorney Han Kyung-soo (2) Legal Corporation Hanjoong Attorney-in-charge: Lee Hee-suk 2. Yang Yong-suk and 11 others (2000Hun-Ma240) Counsel: Ryu Kwon-hong
Holding
1. Table 1, “the National Assembly Election Redistricting Plan,” pursuant to Article 25(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractices (amended by Act No. 6265 on February 16, 2000) is nonconforming to the Constitution. 2. The above National Assembly Election Redistricting Plan shall remain effective temporarily until December 31, 2003, by which the legislature must revise the Plan.
Reasoning
1. Overview of the Case and the Subject Matter of Review A. Overview of the Case
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(1) 2000Hun-Ma92
Complainant resides in “Kyonggi Anyang Dongan-Ku” Electoral District, and plans to vote in the 16th National Assembly election on April 13, 2000. As of December, 1999, the district has a population of 331,458, about 59% more than the average population of electoral
districts (total population 47,330,000 ÷ 227 electoral districts).
The smallest electoral district in the National Assembly Election Redistricting Plan, “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, has a population of 90,656. So, “Kyonggi Anyang DonganKu” Electoral District has a population 3.65 times larger than that of “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District. On February 10, 2000, the complainant filed a constitutional complaint alleging that the present National Assembly Election Redistricting Plan was against the principle of equal election and that the Plan, under which the value of the complainant’s vote is only 1/3.65 of a vote of an elector in “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, infringed on the complainant’s right to equality and the right to vote.
(2) 2000Hun-Ma240
Complainants reside in “Incheon Seo-Ku and Kangwha-Kun B” Electoral District, and plan to vote in the 16th National Assembly election on April 13, 2000. On April 7, 2000, the complainants filed a constitutional complaint alleging that the present National Assembly Election Redistricting Plan, forming a single electoral district by adding Kumdan-Dong to Kangwha-Kun, violated the constitutional right to vote and the right of equality because Kumdan-Dong and Kangwha-kun are geographically separated from each other and there is no sense of social or economic solidarity between residents of Kumdan-Dong and Kangwha-Kun.
B. Subject Matter of Review
The subject matter of review is the constitutionality of “Kyonggi Anyang Dongan-Ku” Electoral District and “Incheon Seo-Ku and Kangwha-Kun B” Electoral District in Table 1, “the National Assembly Election Redistricting Plan” (hereinafter called the “instant Election Redistricting Plan”), pursuant to Article 25(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractices (amended by Act No.6265 on February 16, 2000, hereinafter called the “Public Election Act”).
Contents of the instant Election Redistricting Plan are as shown in “Attachment 1”.
2. Complainants’ Arguments A. 2000Hun-Ma92
(1) Population disparity in electoral districts cause inequality in
the weight of each vote, thereby violating the right to equality in elections. This is contrary to the Preamble and Article 11(1) of the Constitution stipulating protection of the right to equality. Violation of the right to equality in political spheres ultimately leads to the disintegration of the representative democratic system necessary for the realization of the democratic order which the Constitution holds as its fundamental objective. (2) As of December 31, 1999, “Kyonggi Anyang Dongan-Ku” Electoral District where the complainant resides has a population of 331,458, about 59% more than the average population of electoral districts, or 208,502 (total population 47,330,000 ÷ 227 electoral districts).
The district has a population about 3.65 times that of the smallest electoral district in the instant Election Redistricting Plan, “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, which has a population of 90,656. Under the instant Election Redistricting Plan, the value of the complainant’s vote is only 1/3.65 of a vote of an elector in “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District. Therefore, the Plan infringes on the complainant’s constitutional right to equality and the right to vote. (3) It might be impossible to achieve perfect equality in the value of each vote. According to the prevailing views of academics and precedents in courts around the world for the last thirty years, the permissible maximum ratio between the most populous and the least populous electoral districts is 3:1. However, under the instant Election Redistricting Plan, it is 3.88:1, and this is against the reasoning of the Court’s earlier ruling five years ago. The instant Election Redistricting Plan completely ignores equality in the value of each vote, or more specifically, equality in the value of a vote contributing to the outcome of an election. It violates the right of equality in the National Assembly elections, and thereby infringes on the basic right of equality.
B. 2000Hun-Ma240
(1) The demarcation of electoral constituencies should be done by considering the social, geographical, historical, economical or administrative association between localities. Unless there are special inevitable circumstances, adjacent localities should form an electoral district. And the formation of a single electoral district out of two geographically separated localities without justifiable reasons, would be arbitrary, thus exceeding the limits of legislative discretion, and hence, is unconstitutional. (2) In case of the “Incheon Seo-Ku and Kangwha-Kun B” Electoral District, Incheon Seo-Ku Kumdan-Dong and Incheon Kangwha-
Kun became parts of the Incheon Metropolitan City in March 1995, and they are located 20 km apart. Residents in Kumdan-Dong mostly work in factories, while those in Kangwha-Kun are mostly farmers. Therefore, there is no sense of solidarity between residents in the two localities. In case of Kumdan-Dong, problems in terms of traffic and environment have worsened since it became a part of Incheon Metropolitan City, and these issues require immediate attention. Despite these facts, Kumdan-Dong of Seo-Ku was isolated and added to Kangwha-Kun to form an electoral district for the National Assembly election. Such a realignment of electoral districts has made it very difficult for the complainants and other Kumdan-Dong residents to accurately convey their messages to the National Assembly, and this infringes on the right to pursue happiness, the right to equality, and the right to vote.
3. Review A. Representative Democracy and the Principle of Equal Election
Article 1(2) of the Constitution explicitly states the principle of the people’s sovereignty. However, under the representative democracy system adopted by most countries, the people holding the supreme power of the land delegate their power to the State agencies except in some rare cases. Success in a representative democratic system depends on how accurately and effectively people’s opinions are reflected in the political decision making process. In this light, the electoral constituencies rezoning should be done in such a way to accurately represent electors’ choice. Violation of equality in voting rights caused by arbitrary redistricting would distort people’s opinions, and this would seriously undermine the basis of representative democracy. Article 11(1) of the Constitution declares the general “principle of equality,” and Article 41(1) of the Constitution declares the “principle of equal election” in the National Assembly election through the provision that reads “the National Assembly shall be composed of members elected by universal, equal, direct, and secret ballot by the citizens.” The principle of equal election is a manifestation of the principle of equality in the election process. It mandates the principle of equality in the number of votes, namely, one vote per person, and equality in their weight, that is, the extent that one vote contributes to the entire system of election (one vote, one value) (7-2 KCCR 760, 771, 95Hun-Ma224 and etc., December 27, 1995).
Also it means the denial of gerrymandering, or discriminatory constituency rezoning, designed to prevent a certain group of people’s
political opinions from being reflected in the political process (10-2 KCCR 742, 747, 96Hun-Ma54, November 26, 1998; 10-2 KCCR 764, 773, 96Hun-Ma74 and etc., November 26, 1998).
B. Legislative Discretion in Constituency Rezoning and Its Limits
Article 41(3) of the Constitution states that “the constituencies of members of the National Assembly, proportional representation, and other matters pertaining to National Assembly elections shall be determined by Statute,” thereby delegating the decision making power concerning details of the election system and constituency rezoning to legislative discretion. Therefore, a wide scope of legislative discretion is recognized in creating the National Assembly Election Redistricting Plan. The legislature can take into consideration not only the population disparity, but also administrative districts, geography of particular area, traffic, living sphere, sense of historical or traditional solidarity, or any other policy or technical factors when realigning the electoral districts. Article 25(1) of the Public Election Act embodies such understanding as it states that “the local constituency for National Assembly shall be demarcated in the area under jurisdiction of the City/Province, in consideration of the population, administrative districts, geographical features, traffic, and other conditions… .” Article 41(2) of the Constitution states that “the number of members of the National Assembly shall be determined by Act, but the number shall not be less than 200,” and Article 21 of the Public Election Act sets the full number of National Assembly seats, including all local constituency members and proportional representatives at 273. 227 members of the National Assembly are elected from local constituencies according to the relative majority representation system, and 46 proportional representatives are elected from one national constituency. The total number of National Assembly seats, or the size of the legislature, is also a factor to be considered in rezoning the electoral districts. In other words, the legislature has to consider the fact that while the number of National Assembly seats should be more than 200 as stipulated by the Constitution, an excessive number of Assembly members would be detrimental to effective parliamentary activities. This means that the formation of an efficient and adequate legislative body should also be considered in constituency rezoning. But, a wide scope of legislative discretion in constituency rezoning does not mean that the redistricting of electoral districts is free
from constitutional control. In other words, the constitutional principle of equal election limits legislative discretion in such matters. First, the equality in the value of each vote is the most important and basic factor in constituency rezoning. Accordingly, unreasonable redrawing of electoral districts, violating the constitutional mandate of equal weight of votes, is arbitrary, and hence, is unconstitutional. In this light, there is an inherent limit to legislative discretion in readjusting the electoral constituencies. On this point, the Court earlier ruled that “while the National Assembly may consider factors other than population, it is unconstitutional if there exists grave inequality beyond any reasonable limits in the value of votes among electors” (7-2 KCCR 760, 773, 95HunMa224 and etc., December 27, 1995).
Second, gerrymandering is not within the constitutional limits of legislative discretion, and is unconstitutional. Gerrymandering refers to an intentional discrimination of electors in a particular region through arbitrary division of electoral districts. It would be gerrymandering if electors in a particular electoral district lose opportunities to participate in political affairs, because of an arbitrary division of electoral districts, or if a district is redrawn to prevent the election of a candidate supported by electors from a particular region (10-2 KCCR 742, 748, 96Hun-Ma54, November 26, 1998; 10-2 KCCR 764, 775, 96Hun-Ma74 and etc., November 26, 1998).
The Court earlier ruled that “in redistricting the electoral constituencies, the legislature has to take into its consideration such factors as social, geographical, historical, economical and administrative association between localities, and an electoral district should be composed of a contiguous geographic area except for certain and inevitable circumstances.” The Court further decided that unless there are inevitable circumstances, the redistricting of an electoral district by joining two completely separated localities without a common boundary, unless there are inevitable circumstances, was arbitrary and beyond the limits of legislative discretion, and hence unconstitutional (7-2 KCCR 760, 788-789, 95Hun-Ma224 and etc., December 27, 1995).
C. Unconstitutionality of “Kyonggi Anyang Dongan-Ku” Electoral District Part of the Election Redistricting Plan (Equality in the Value of Each Vote)
(1) Precedents on Population Disparity in Electoral Districts
In the first case about permissible limits on population disparity in electoral districts (95Hun-Ma224 and etc., December 27, 1995), the
Court found the then National Assembly Election Redistricting Plan nonconforming to the Constitution, and suggested the following criterion for the constitutionality of population disparity in the constituencies. In the decision, five Justices, Justices Kim Yong-joon, Kim Chinwoo, Kim moon-hee, Hwang Do-yun, and Shin Chang-on, ruled that the permissible maximum deviation of population in the National Assembly Election should be 60% of the average population of electoral districts, or the quotient of the national population divided by the number of electoral districts2), and that it would be unconstitutional to have a single electoral district which did not satisfy such population requirement. Four Justices, Justices Lee Jae-hwa, Cho Seung-hyung, Chung Kyung-sik, and Koh Joong-suk, proposed to separate the electoral districts into the urban districts and the rural districts. The four Justices ruled that constituency redistricting which violates the 60% deviation of population limit and at the same time exceeds the 50% deviation limit in the same type of electoral district is beyond the limits of legislative discretion and hence, is unconstitutional. Three Justices, Justices Kim Moon-hee, Hwang Do-yun, and Shin Chang-on, issued a concurring opinion to the majority opinion. In the opinion, three Justices pointed out that the legislature should take steps to remedy the existing population disparities among electoral districts within a reasonable period of time, and under the new Redistricting Plan, the largest electoral district should not have a population more than twice that of the smallest electoral district. Furthermore, the three Justices suggested that the Court should employ a new criterion which sets the permissible maximum ratio of population between the most populous district and the least at 2:1 after a reasonable period of time. Justice Kim Chin-woo wrote a concurring opinion also stating that the Court should employ the permissible maximum ratio of population between the most populous district and the least at 2:1 from the next case on.
(2) Population Disparity in Electoral Districts in the Instant Election Redistricting Plan
“Facts on the 16th National Assembly Election” published by the Central Commission on Election Management provides various statistical information regarding the election, including population of each electoral district as of March 22, 2000. A table analyzing population
2).
T is w u h o ld b e u a n t s t in t e p r is ib m x u e q iv le t o e t g h e m s le a im m r t a io b t e n th m s p p lo s d t ic a d th le s a 4 . – T a s e we e o t o u u is r t n e a t t :1 r n.
ratio of each National Assembly electoral district is attached to Appendix 2, and a table analyzing population disparity in the electoral districts is attached to Appendix 3. The smallest electoral district in the instant Election Redistricting Plan, “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, has a population of 90,190 (Strictly speaking, the number of qualified electors should be the basis of comparison, but since the number of electors is proportional to population in most cases, all figures hereinafter will be in terms of “population”).
On the other hand, “Kyonggi Anyang Dongan-Ku” Electoral District where the complainant resides has a population of 328,383, and this is 3.64 times the population of “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District. The largest electoral district in the instant Election Redistricting Plan, “Kyonggi Uijongbu” Electoral District, has a population of 350,118, or a population 3.88 times that of the “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District. There are 154 electoral districts with a population more than twice the population of the smallest electoral district, and 45 of them have a population three times or more than the population of the smallest electoral district. The average population of electoral districts is 208,917 (National population, 47,424,300 ÷ number of electoral districts, 227).
“Kyonggi Anyang Dongan-Ku” Electoral District, where the complainant resides in, has a population 57% more than this figure, and the smallest electoral district, “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, has a population 57% less than this figure. The largest electoral district, “Kyonggi Uijongbu” Electoral District, has a population 68% more than the average figure. There are 81 electoral districts with a population exceeding the permissible maximum deviation of ±33⅓% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 2:1) or more from the average population of electoral districts. 30 of these districts have a population exceeding the permissible maximum deviation of ±50% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 3:1) or more. It is noteworthy that there are 10 electoral districts with population disparities of ±60% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 4:1) or more (all of the cases exceeded the upper limit).
This is directly against the holding in the 95Hun-Ma224 case in which the Court ruled that a population disparity of ±60% would be the maximum population under the Constitution.
(3) Permissible Limit on Population Disparity
(A) In suggesting the permissible limit on population disparity, the Court could employ either the population of the smallest electoral district or the average population of electoral districts as a basis of comparison. In the 95Hun-Ma224 case, the Court chose to use the average population of electoral districts, following the provision of Federal Election Act of Germany, precedents of the German Constitutional Court, and the opinion of the Central Commission on Election Management, and this Court will maintain the decision. (B) Next, the Court needs to decide whether to use different standards in reviewing the constitutionality of population disparities in urban electoral districts and rural electoral districts. In the 95Hun-Ma224 case, some Justices proposed to use different permissible maximum deviation standards for rural electoral districts and urban electoral districts. However, because it is not easy to distinguish an urban electoral district from a rural electoral district, such classification would be either improper or unnecessary. Therefore, the Court will not distinguish between an urban electoral district from a rural electoral district when reviewing the instant case. However, the existing difference between population in urban and rural areas resulting from the concentration of population to urban areas should be taken into consideration when formulating the permissible maximum deviation of population in an electoral district. (C) Population disparity in electoral constituencies is not a problem limited only to Korea, and over the years, the standards used to review the constitutionality of population disparities have become more exacting in countries around the world. In the case of Germany, Article 3(1)[3] of the revised Federal Election Act (Bundeswahlgesetz) stipulates that the deviation of population in an electoral district, from the average population of electoral districts, should not exceed 15% and that rezoning constituency rezoning is required if the deviation exceeds 25%. In short, while setting the 15% deviation limit as a principle, and compelling the observance of 25% as a maximum deviation limit, the Act was flexibly legislated. When compared to Article 3(1)[2] of the old Federal Election Act, which stated that the deviation of population in an electoral district from the average population of electoral districts should not exceed 25% and that rezoning of constituencies would be required if the deviation exceeded 33⅓%, it is clear that the standard in reviewing the constitutionality of constituency rezoning has become more strict in Germany. In case of Japan, Article 3(1) of the Act to Institute the Con-
stituency Redistricting Commission for the Diet Election, enacted in February 4, 1994, stipulates that a revised redistricting plan should strive to achieve balanced population among electoral districts, that in the new redistricting plan, the number earned by dividing the population of the largest electoral district by that of the smallest should not exceed 2, and that consideration should be given to administrative districts, geography, traffic, and other special conditions. (D) In the 95Hun-Ma224 case, the Court suggested some factors other than population to be taken into consideration when readjusting the national electoral constituencies. In the case, the Court first indicated that in Korea which adopts the unicameral system, a National Assembly member, while representing the Korean people as a whole, also represents the electors from a particular locality. The Court also cited population disparity between urban and rural electoral districts resulting from population concentration in metropolitan areas and existing inequality of development in all spheres as reasons to be lenient in suggesting the permissible limit on population disparity. On the other hand, the Court stated that many votes are wasted under the election system currently employed by Korea, namely, the minor constituency system combined with the majority representation system. The Court went on to point out that to permit excessive population disparities between electoral districts under such election system would significantly undermine the basis of the representative democratic system (7-2 KCCR 760, 775, 95Hun-Ma224 and etc., December 27, 1995).
Such conditions have not changed much since then. (E) Population remains the most important factor in redistricting constituencies, but secondary factors other than population have to be taken into consideration as well. To set limits on legislative discretion in constituency rezoning, or more specifically, to suggest constitutionally permissible limits on population disparity in electoral districts, is a problem of easing the strict application of the principle of equality in the value of each vote by considering factors other than population. Considering all the factors we have seen so far, among the suggestions regarding the permissible limits on population disparity, the one that says a population that is within the 33⅓% deviation limit (equivalent to setting the permissible maximum ratio between the most populous district and the least at 2:1) would be still unconstitutional if there is no reasonable justification for such a disparity. This standard is too rigorous, and it is too early to adopt this suggestion as the standard for constitutional review of the Election Redistricting Plan under the present political realities in Korea. To adopt the 60% criterion (equivalent to setting the permissible maximum ratio between the most populous district and the least at 4:1) five years after the Court adopted it in the 95Hun-Ma224 decision
would be improper in the light of the concurring opinion of the case, suggesting employment of a more strict criterion in the future dispute, or the fact that the standard adopted by the Court in the instant case would serve as guidelines in revising the Election Redistricting Plan for the National Assembly Election in 2004. It would be also against the worldwide trend of setting a more exacting standard to review the constitutionality of population disparities in electoral districts. Then, the Court could choose between two other options at this time. One is to set the permissible maximum deviation of population in an electoral district from the average population of electoral districts at ±33⅓%. The other is to set the maximum deviation at ±50% (in this case, the maximum ratio between the most populous district and the least populous district would be 3:1).
Needless to say, the 33⅓% criterion is a superior option to achieve equality in voting rights. But adoption of this criterion would entail many problems, because it would make it very difficult to consider factors other than population, such as administrative district divisions and the total number of seats in the National Assembly in constituency rezoning. The problem regarding division of administrative districts could be solved through revision of the current Public Election Act. While Article 25(1) of the Public Election Act stipulates that “… Ku/Shi/Kun shall not be partly divided and made to belong to another election district for the National Assembly member,” this is not a constitutional requirement. Therefore, the provision would have to concede in order to achieve the constitutional requirement of equality in the voting rights, and revising the administrative districts itself could be considered. Article 41(2) of the Constitution only stipulates that the total number of seats in the National Assembly should be more than 200, so this number could be adjusted to remedy population disparities. However, in reality, formation of an electoral district by separating a part of an administrative district and adding it to another or increasing the total number of seats in the National Assembly would not be easy considering public opinion. Also, as we have seen earlier, there are 30 electoral districts with a population exceeding the permissible maximum deviation from the average population of electoral districts of ±50% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 3:1), but there are 81 electoral districts with a population exceeding the permissible maximum deviation from the average population of electoral districts of ±33⅓% (equivalent to setting the permissible maxi-
mum ratio between the most populous district and the least at 2:1).
Under such circumstance, it would not be difficult to predict that there would arise many problems if the Court adopted the 33⅓% criterion. It has only been 5 years since the Court first deliberated on the problem of population disparity in electoral districts, and a too idealistic of an approach disregarding practical limits would be imprudent. Therefore, the Court will review the instant case using the 50% criterion. However, the Court would like to make it clear once more, as did three Justices, Justices Kim Moon-hee, Hwang Do-yun, and Shin Chang-on, in their concurring opinion to the majority opinion in the 95Hun-Ma224 case, that, while the legislature could take into consideration factors other than population such as administrative districts, the total number of seats in the National Assembly, population disparities between urban and rural districts when realigning the electoral districts, the legislature should take steps to remedy the existing population disparities among electoral districts to ensure that the largest electoral district does not have a population more than twice that of the smallest electoral district to uphold the constitutional principle of equal election. The Court will employ the 33⅓% (equivalent to setting the permissible maximum ratio of population between the most populous district and the least at 2:1) or a more strict criterion after some time from now.
(4) Unconstitutionality of “Kyonggi Anyang Dongan-Ku” Electoral District Part of the Election Redistricting Plan
In case of “Kyonggi Anyang Dongan-Ku” Electoral District, it has a population 57% more than the average population of electoral districts. Such division of electoral districts is beyond the limits of legislative discretion, and violates the complainants’ constitutional right to vote and the right to equality.
D. Constitutionality of “Incheon Seo-Ku and KangwhaKun B” Electoral District Part of the Election Redistricting Plan (regarding gerrymandering)
(1) Formation of the Instant Electoral District
Before the Act on the Election of Public Officials and the Prevention of Election Malpractices was amended on February 16, 2000, the electoral districts in Incheon Seo-Ku, Kyeyang-Ku and Kangwha-
Kun were divided to “Kyeyang-Ku and Kangwha-Kun A”, “KyeyangKu and Kangwha-Kun B”, and “Incheon Seo-Ku” Electoral Districts. Under such division, Incheon Seo-Ku as a whole formed an independent electoral district, and “Kyeyang-Ku and Kangwha-Kun A” Electoral District was formed of all of Kyeyang-Ku except KyeyangKu Kyeyang 1-Dong. Kyeyang-Ku Kyeyang 1-Dong and the district of Kangwha-Kun formed the “Kyeyang-Ku and Kangwha-Kun B” Electoral District. A constitutional complaint challenging the constitutionality of forming “Kyeyang-Ku and Kangwha-Kun B” Electoral District by separating only Kyeyang-Ku Kyeyang 1-Dong from Kyeyang-Ku and adding it to Kangwha-Kun was filed. In the 96Hun-Ma54 case decided on November 26, 1998, the Court ruled that the particular Election Redistricting Plan had an unconstitutional element because the legislature departed from the scope of legislative discretion in forming such electoral district, but considering lack of time in preparing the Plan for the 15th National Assembly Election and the temporary nature of such constituency rezoning, the Plan was held constitutional. In the above case, the Court suggested that since Incheon Kyeyang-Ku and Kangwha-Kun were separated from each other by Incheon Seo-Ku and Kyonggi Kimpo-Kun (currently Kimpo-Shi), it would be more reasonable to form an electoral district by combining Kangwha-Kun with Ongjin-Kun which was geographically very close to and administratively very similar to Kangwha-Kun, or to form an electoral district by combining Kangwha-Kun and some parts of Incheon Seo-Ku which were geographically closer to Kangwha-Kun instead of Kyeyang-Ku. Following the holding of the Court, the legislature made KyeyangKu a single electoral district, combined Kangwha-Kun and Incheon Seo-Ku, and formed two electoral districts, namely, “Incheon Seo-Ku and Kangwha-Kun A” Electoral District, composed of all parts of Incheon Seo-Ku except Kumdan-Dong, and “Incheon Seo-Ku and Kangwha-Kun B” Electoral District compossd of Kumdan-Dong and all parts of Kangwha-Kun, as it amended the Act on the Election of Public Officials and the Prevention of Election Malpractices through Act No.6265 on February 16, 2000.
(2) Constitutionality of the Instant Electoral District Part of the Election Redistricting Plan
According to the case records and “Facts on the 16th National Assembly Election” published by the Central Commission on Election Management, Firstly, Incheon Seo-Ku Kumdan-Dong and Kangwha-
Kun both were parts of Kyonggi-Do, but became parts of Incheon Metropolitan City on March 1, 1995. Incheon Seo-Ku Kumdan-Dong, located in the north part of Incheon, is partly urban and partly rural in composition. It is composed of eight smaller counties, and most residents of Kumdan-Dong work in factories (less than 10% of all households are farmers).
Kangwha-Kun is located in the northwest part of Incheon, and is composed of 15 islands. More than 70% of all residents are farmers. Secondly, Incheon Seo-Ku Kumdan-Dong and Kangwha-Kun are approximately 20 km apart, and have Kyonggi Kimpo-shi in between them. Thirdly, as of March 22, 2000, population of Kangwha-Kun is 67,621, that of Ongjin-Kun, an administrative district composed of small islands close to Kangwha-kun, is 13,979, and that of Incheon Seo-Ku is 339,583. Incheon Seo-Ku is composed of 14 smaller administrative districts called Dongs, and of these, Kumdan-Dong has the largest population of 51,450 which is about 15% of the total population of Incheon Seo-Ku. Finally, after becoming a part of Incheon, population of Kumdan-Dong has rapidly increased, and about 1900 factories are located within its boundary. There is also the Metropolitan Area refuse disposal site in KumdanDong, and Kumdan-Dong currently faces many problems in terms of traffic and environment. When revising the Election Redistricting Plan for the 16th National Assembly Election, the legislature decided to set the minimum population of an electoral district at 90,000. Under such a guideline, Kangwha-Kun did not have enough population to form an independent electoral district, and it still would not meet the minimum population requirement if Kangwha-Kun was combined with Ongjin-Kun to form an electoral district3).
Thus, the legislature decided to separate a part of Incheon Seo-Ku, which is closer to Kangwha-Kun than Incheon Kyeyang-Ku, and combine it with Kangwha-Kun to form an independent electoral district. The reason the legislature chose to separate Kumdan-Dong was because Kumdan-Dong, being located in the north part of Incheon Seo-Ku, was relatively close to Kangwha-Kun, and because it would be easier to meet the minimum population requirement to add Kumdan-Dong, the most populated of all administrative districts in Seo-Ku, to Kangwha-Kun. Such constituency rezoning by the legislature is not against the Court’s decision in the 96Hun-Ma54 case. Also, since population of Kumdan-Dong is about 43% of total population of “Incheon Seo-Ku and Kangwha-Kun B” Electoral District, it would be difficult to say Kumdan-Dong was incorporated into Kangwha-Kun. When all factors are considered, it cannot be concluded that the legislators arbitrarily realigned the electoral districts with an intention to discriminate
3).
A s g e t d b t e C u t in t e 9 H n M5 c s – Ta s s u g se y h o r h 6 u- a4 ae r n.
against the people of Kumdan-Dong. Thus, the “Incheon Seo-Ku and Kangwha-Kun B” Electoral District part of the instant Election Redistricting Plan does not violate the complainants’ right to vote or right to equality, and hence, is constitutional.
E. Inseparability of the Election Redistricting Plan and the Scope of Decision of Unconstitutionality
As seen above, the complainants’ rights to equality and to vote are violated by only a part of the Election Redistricting Plan, namely, zoning of “”Kyonggi Anyang Dongan-Ku” Electoral District. However, there is a problem whether to declare the entire Election Redistricting Plan unconstitutional when only parts of the Plan has unconstitutional elements. This depends on whether the Redistricting Plan can be divided into separate entities. In its earlier decision in the 95Hun-Ma224 case, the Court ruled on the inseparability of the Election Redistricting Plan as follows: The electoral districts in the Election Redistricting Plan form an organic whole, and changes in one electoral district inevitably influence composition of other electoral districts in a chain reaction. Thus, if a part of the Election Redistricting Plan has unconstitutional elements, the whole Plan has unconstitutional elements. If the Court were to render a decision of unconstitutionality only for a part of the Election Redistricting Plan concerning the electoral district whose residents filed a constitutional complaint because of population disparity, there would be cases where other parts in the Plan with worse population disparities remain effective because there is a time limit for filing a constitutional complaint. This would be clearly unfair. Therefore, if rezoning of some constituencies violated the Constitution, the whole Election Redistricting Plan would have to be declared unconstitutional. Such conclusion is still reasonable for defense of a constitutional order and protection of citizens’ basic rights, and the Court will maintain the position.
F. Decision of Nonconformity to the Constitution
The Court should render a decision of unconstitutionality. However, the following facts have to be considered in doing so: that General Elections for the National Assembly have already been held based on the current Redistricting Plan; that there may arise a vacuum in law if a special election or reelection for a particular district
is to be held before the revision of the Plan, because speedy revision of the Plan would be impossible due to its political nature; and that in order to maintain homogeneity in the composition of the National Assembly and to prevent confusion caused by changes in the electoral district, it is better that a special election or reelection is held under the present Redistricting Plan. Therefore, the Court finds the instant Redistricting Plan nonconforming to the Constitution, but orders it to remain effective temporarily until the legislature revises the Plan by December 31, 2003.
4. Conclusion
“Kyonggi Anyang Dongan-Ku” Electoral District part is beyond the permissible limits of population disparities in electoral districts, and hence constitutes an arbitrary constituency rezoning. Thus, the Court should grant the complainants’ constitutional complaint, and at the same time, the Court should declare the entire Election Redistricting Plan unconstitutional because of the inseparability of the Election Redistricting Plan. However, for reasons shown above, the Court finds the instant Redistricting Plan nonconforming to the Constitution but orders it to remain effective temporarily until the legislature revises the Plan by December 31, 2003. The constitutional complaint against “Incheon Seo-Ku and Kangwha-Kun B” Electoral District part of the instant Election Redistricting Plan should be rejected, but since the whole Plan is declared nonconforming to the Constitution due to the unconstitutionality of another part, the Court will not issue a separate adjudication rejecting that complaint. This decision is pursuant to the consensus of all Justices except Kwon Seong who wrote a separate concurring opinion and Justices Han Dae-hyun and Ha Kyung-chull who wrote a dissenting opinion.
5. Justice Kwon-seong’s Concurring Opinion A. Limit to Equality in the Value of Each Vote
It is very difficult to achieve a mathematical equality in the value of each vote when a country has adopted the minor electorate system based on the administrative district divisions. The permissible maximum ratio between the most populous district and the least of 3:1 and that of 4:1 are not that different. To say the ratio of 3:1 is acceptable but not 4:1 is too artificial and unnatural. Equality in the value of each vote is not the foremost concern in developing the National Assembly Election Redistricting Plan. It
is only one of many important factors to be considered.
B. Representatives’ Ties with a Region or with Electors
Another of such factors would be proper representation of electors from a particular electoral district. In a country adopting the representative democratic system and allowing universal and direct election, there is no other option but to elect a member of the National Assembly from an electoral district composed of particular administrative districts. Such election system could be classified into the minor electorate system, the medium electorate system, or the major electorate system, depending on the size of the electoral districts. If all members of the National Assembly are elected from a single national electoral district, such representatives will have weak ties with electors. This is clear when one thinks of proportional representatives under the current election system. Each National Assembly member represents the entire people, but at the same time, he or she also represents the people who elected him or her into the office. To say that a member of the National Assembly represents all the people around the nation is to articulate the legal status and political responsibilities of a legislator. It means that a National Assembly member should not work only for the interests of his or her electors, but for the interests of the entire nation. However, it does not stipulate method of election of a legislator nor does it negate the ties between a legislator and his or her electors. The most clear way for a National Assembly member to properly represent the people is possible when a National Assembly member is elected into the office by electors of an independent electoral district (such as an administrative district).
C. Legitimacy of Representing Electors’ Interests
To guarantee proper representation of electors from a particular electoral district is not just a matter of sentiment, but it is reasonable and legitimate because of the following reasons: ① In the light of the historical development of the parliamentary system, a legislator has always been elected by residents of a particular locality, and it was only natural to do so. ② In the light of the principle of protection of minority, a representative from a larger electoral district and a representative from a smaller electoral district have been and should be given equal status. ③ To achieve national solidarity, a representative from a populous, well-developed electoral district and a representative from a
smaller, less-developed electoral district have been and should be given equal status. ④ Self-respect, sense of honor, and sense of duty of a legislator are strengthened when he or she represents people of a particular locality. Since the present election system adopts the minor electorate system, ensuring a sense of connection between electors and a National Assembly member is as important as ensuring equality in the value of each vote when finalizing the Election Redistricting Plan.
D. Unconstitutionality of Separating Residents of a Particular Locality
Separating a part of an administrative district and adding it to another administrative district to achieve mathematical equality in the value of each vote would weaken the link between electors and the elected. Such practice would also violate the right to vote of those electors who were separated from others in the old electoral district, and were forced to vote in a newly formed electoral district, and hence, is unconstitutional. There is a violation of the right to vote because of the following reasons: A legislature composed of representatives elected from certain administrative districts is a central component of the representative system which, in turn, is an integral element of the parliamentary system; Thus the right to elect a National Assembly member representing the administrative district where electors reside constitutes the essence of the electors’ right to vote in the National Assembly election; If some residents of an administrative district were separated and were forced to belong to another administrative district for the National Assembly election, this is tantamount to losing the electors’ right to elect a National Assembly member representing their locality. Combining independent administrative districts to form a single electoral district or separating a populous administrative district to form several electoral districts also restrict the electors’ right to select a National Assembly member representing their locality to a certain degree, but this could be seen as the election of a common representative or several representatives, and it is not contrary to the essential element of the representative system. Contrary to the majority opinion of Justices that Article 25(1) of the Public Election Act stipulating that “… Ku/Shi/Kun shall not be partly divided and made to belong to another election district for the National Assembly” is not a constitutional requirement, I think it is a constitutional requirement. As explained above, separating a part of
an administrative district and adding it to another administrative district to achieve the mathematical equality in the value of each vote would weaken the link between electors and the elected. Such a practice would also violate the right to vote of those electors who were separated from others in the old electoral district to vote in a newly formed electoral district, and hence, is unconstitutional. Therefore, Article 25(1) of the Public Election Act reflects a constitutional requirement, and the Election Redistricting Plan is contrary to Article 25(1), and is unconstitutional.
E. On the Instant Case
The following three electoral districts in the Election Redistricting Plan under the present Public Election Act hinder proper representation of electors: 1. “Pusan Puk-Ku and Kangso-Ku B” Electoral District: Puk-Ku Kumkok-Dong, Hwamyong-Dong, Dukchun-je2-Dong, and parts of Kangso-Ku 2. “Haeundae-Ku and Kijang-Kun B” Electoral District: HaeundaeKu Joa-Dong, Songjung-Dong, and parts of Kijang-Kun 3. “Incheon Seo-Ku and Kangwha-Kun B” Electoral District: SeoKu Kumdan-Dong and parts of Kangwha-Kun Formation of these three electoral districts violates the right to vote of those electors separated from their original administrative districts and forced to be a part of another electoral district. Because of the inseparability of the Redistricting Plan, the whole Plan is unconstitutional. The Court should also point out the unconstitutionality of Article 3 of Addenda to the Act on the Election of Public Officials and the Prevention of Election Malpractices, allowing the formation of the above electoral districts.
6. Dissenting Opinion of Justices Han Dae-hyun and Ha Kyung-chull
We agree with the majority opinion that the “Incheon Seo-Ku and Kangwha-Kun B” Electoral District part of the instant Election Redistricting Plan does not violate the complainants’ right to vote or right to equality, and hence, is constitutional. However, for the following reasons, we disagree with the majority opinion which found the “Kyonggi Anyang Dongan-Ku” Electoral District part of the instant Election Redistricting Plan unconstitutional. According to the Court’s decision in the 95Hun-Ma224 case on
December 27, 1995 which rendered a decision of unconstitutionality on the National Assembly Election Redistricting Plan reviewed, an electoral district not exceeding the 60% maximum deviation limit from the average population of electoral districts is not unconstitutional. As of March 22, 2000, the population in “Kyonggi Anyang DonganKu” Electoral District is 328,383, about 57% more than the average population of electoral districts, namely, 208,917. Therefore, it is clear that the present Redistricting Plan is not unconstitutional under the criterion set forth by the 95Hun-Ma224 decision. Considering deference to legislative power, it would be imprudent for the Court to change its earlier decision in 1995. But we agree with the opinions of the Justices of the majority that the permissible maximum deviation of population in an electoral district from the average population of electoral districts should be set at 50% for the Redistricting Plan to be employed for the National Assembly Election in 2004. In conclusion, we think that the Court should reject the complaint, instead of rendering a decision of nonconformity to the Constitution, while suggesting that the new Redistricting Plan for the National Assembly Election in 2004 should set the permissible maximum deviation in an electoral district from the average population of electoral districts at 50%, and that the new criterion will be used for constitutional review from then on. Justices Yun Young-chul (Presiding Justice), Han Dae-hyun, Ha Kyung-chull, Kim Young-il (Assigned Justice), Kwon Seong, Kim Hyo-jong, Kim Kyoung-il, Song In-jun, and Choo Sun-hoe
Appendix Appendix 1 (revised on February 16, 2000)
The National Assembly Election Redistricting Plan: [omitted]
Appendix 2
Table of Population Ratio of Each National Assembly Electoral District
Classification Number Population of (as of Electoral 03/22/00) Districts Region Seoul Pusan Taegu Incheon Kwangju Taejon Ulsan Kyonggi-Do Kangwon-Do 10,291,043 3,812,489 2,513,380 2,514,144 1,360,943 1,370,795 1,027,815 8,992,947 1,554,437 45 17 11 11 6 6 5 41 9 7 11 10 13 16 16 3 227 No. of No. of No. of Electoral Electoral Electoral Districts Districts Districts with with with population population population ratio ratio ratio of 2:1 between between 3:1 or less 2:1 and 3:1 and 4:1 6 2 3 2 1 1 2 11 4 2 4 6 10 10 7 2 73 31 10 4 6 4 5 2 19 5 4 7 0 2 3 7 0 109 8 5 4 3 1 0 1 11 0 1 0 4 1 3 2 1 45
Chungchongbuk 1,492,293 -Do Chungchongnam 1,919,230 -Do Chollabuk-Do Chollanam-Do 2,003,553 2,146,768
Kyongsangbuk- 2,802,337 Do Kyongsangnam3,082,607 Do Cheju-Do Total 539,519 47,424,300
population ratio: population ratio between the population of a particular electoral district and that of the least populous electoral district 1. Population of Smallest Electoral District (“Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District): 90,190 2. Population of Largest Electoral District (“Kyonggi Uijongbu” Electoral District): 350,118 (3.88:1) 3. Population of Instant Electoral District (“Kyonggi Anyang Dongan-Ku” Electoral District): 328,383 (3.64:1)
Appendix 3
Table of Population Disparity in the National Assembly Electoral Districts
Classification No. of Electoral Number Districts Population of with (as of Electoral population 03/22/00) Districts disparity of ±33⅓ or less 10,291,043 3,812,489 2,513,380 2,514,144 1,360,943 1,370,795 1,027,815 8,992,947 1,554,437 1,492,293 1,919,230 2,003,553 2,146,768 2,802,337 3,082,607 539,519 47,424,300 45 17 11 11 6 6 5 41 9 7 11 10 13 16 16 3 227 38 12 6 7 5 6 3 27 5 5 7 3 6 6 8 2 146 No. of Electoral Districts with population disparity between ±33⅓ and ±50% 3 5 3 3 1 0 1 9 2 1 2 4 5 7 5 0 51 No. of Electoral Districts with population disparity between ±50 and ±60% 2 0 1 1 0 0 1 2 2 0 2 2 2 2 2 1 20 No. of Electoral Districts with population disparity of ±60 or more 2 0 1 0 0 0 0 3 0 1 0 1 0 1 1 0 10
Region Seoul Pusan Taegu Incheon Kwangju Taejon Ulsan Kyonggi-Do Kangwon-Do Chungchongbuk-Do Chungchongnam-Do Chollabuk-Do ChollanamDo Kyongsangbuk-Do Kyongsangnam-Do Cheju-Do Total
population disparity: population deviation from the average population of electoral districts 1. Average Population of Electoral Districts: 208,917 2. Population of Smallest Electoral District (“Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District): 90,190 (-57%) 3. Population of Largest Electoral District (“Kyonggi Uijongbu” Electoral District): 350,118 (+68%) 4. Population of Instant Electoral District (“Kyonggi Anyang DonganKu” Electoral District): 328,383 (+57%)
Aftermath of the Case
The Constitutional Court rendered a decision of unconstitutionality on December 27, 1995, in the first Redistricting Plan case brought before the Court. At the time, the Court ruled that the permissible maximum deviation of population should be 60% of average population of electoral districts (equivalent to setting the permissible maximum ratio between the most populous district and the least at 4:1).
Through the instant case, the Court changed its previous ruling and adopted the 50% deviation criterion (in this case, the maximum ratio between the most populous district and the least populous district would be 3:1), a stricter standard, to review the constitutionality of population disparities, thus moving a step closer to achieving equality in the value of votes. The legislature is forced to overhaul the current Election Redistricting Plan following the Court’s decision, and the National Assembly Election in 2004 will be held under the revised Redistricting Plan employing a more strict criterion on population disparities between electoral districts. People from various social circles, including those from the legal profession and media, admitted that the Court’s decision was inevitable to remedy the existing population disparities between electoral districts. Politicians from the ruling and opposition parties issued comments that while they respected the Court’s decision, it would require much work to prepare a revision for the present Election Redistricting Plan because such factors as representation of rural and urban areas and the total number of seats in the National Assembly have to be factored in, and that this would call for a prudent approach, by gathering diverse opinions through debates and hearings.
