투표용지 부족사태의 법적 쟁점과 선거관리위원회개혁 방안

초록

An unprecedented shortage of ballots occurred during the recently conducted nationwide simultaneous local elections. Even though such an unprecedented crisis took place, looking back at the historical background of the National Election Commission’s (NEC) creation reveals that hasty calls for its dissolution are unwarranted. The ‘Central Election Committee’ was initially established as a constitutional institution to embody the spirit of fair elections from the April 19 Revolution, which spread like wildfire across the country in resistance to the March 15 rigged election under the Syngman Rhee administration in 1960. Following the May 16 military coup — which occurred before the fervor of the democratic revolution could even subside — the 1962 Constitution (the 5th Amendment) was enacted with total disregard for constitutional procedures. It introduced the uncomfortable term ‘governing apparatus’ in its title and renamed the election committee to its current form, the ‘National Election Management Commission’. Under the 1972 Constitution (the 7th Amendment), which established the unprecedented state organ known as the ‘National Conference for Unification’, the NEC became more structured than before by being organized into the Central Election Commission and various sub-level election commissions. While the number of members on the Central Election Commission was maintained at nine, a tradition began to take root where the President directly nominated and appointed three members, while appointing another three elected by the National Assembly and three nominated by the Chief Justice of the Supreme Court. This tradition has persisted through to the current Constitution enacted in 1987. Organised into the Central Election Commission and sub-level commissions — with a long-standing tradition since its inception where a Supreme Court Justice nominated by the Chief Justice serves as the chairperson — the NEC has been a ‘mandatory institution’ that must be established since its original formation as the ‘Central Election Committee’. Furthermore, as a ‘constitutional institution’ established on constitutional grounds, it cannot be abolished without a constitutional amendment. However, it is questionable whether this judge-centered composition aimed at ensuring election fairness truly aligns with the constitutional intent behind establishing the NEC as an independent constitutional body. Nowhere in the Constitution are the qualifications for NEC members restricted exclusively to judges. A greater issue is that only one of the members serves as a ‘standing (full-time) commissioner’. For effective oversight of the secretariat, the position of the Chairperson of the Central Election Commission needs to be converted into a full-time role, and the number of standing commissioners must be increased to at least three. As a state organ that acquired the status of an independent constitutional institution to strengthen the fairness and political neutrality of election management, its independence has been so excessively emphasized that it neglected the grave responsibilities regarding election management duties entrusted to it by the Constitution. The worst-case result of this neglect manifested as the ballot shortage crisis. Since the independence and accountability of the NEC must be realized in a balanced manner, we must not commit the folly of stripping its independence in the name of accountability. While extending voting hours may be inevitable depending on the circumstances, voting hours cannot be extended unconditionally and indefinitely; thus, explicit provisions regarding the conditions, scope, and procedures for extending voting hours must be added to the law. Regarding the ballot shortage crisis, if the shortage was caused intentionally or through negligence with the purpose of obstructing the state’s electoral duties and infringing upon the citizens’ right to vote, the possibility of it constituting the crime of dereliction of duty under criminal law cannot be ruled out. If the exercise of the right to vote was obstructed due to voting delays caused by the ballot shortage, it cannot be definitively concluded whether the Constitutional Court would rule it an infringement on voting rights, as the right itself was not entirely revoked. However, if voters gave up voting due to delays caused by the ballot shortage because they could not wait due to various personal circumstances — even after receiving a waiting number — their right to vote was effectively disenfranchised. In such cases, there is a high probability that the Constitutional Court would confirm an infringement of voting rights. Whether through an election petition or an election lawsuit, and whether the election lawsuit is filed with the High Court or the Supreme Court, any substantive judgment in litigation contesting the validity of an election will inevitably depend on whether the ballot shortage had a material impact on the election results. Only by making the Chairperson of the Central Election Commission a full-time position, increasing the number of standing commissioners (or transitioning all members to full-time status), and simultaneously reducing the proportion of judges within the Central Election Commission can we substantively empower the leadership to direct and oversee the secretariat. Furthermore, the internal inspection functions must be strengthened so that incidents like the ballot shortage crisis, which directly infringe upon voting rights, are never repeated.

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