The Value of a Vote: Addressing the Disparities in Japan’s Electoral System

High Courts Rule Vote Disparities Unconstitutional

In March 2013, high courts and branches thereof around the country issued 16 rulings on cases concerning the major disparities in the value of votes cast in different districts in last December’s House of Representatives election. Though the content and precise wording of the rulings differed, all 16 declared the apportionment of seats in the latest election for the lower house to be in violation of the Constitution. The courts seemed to be raising doubts about whether the legislators elected in December are “duly elected representatives in the National Diet,” as written in the preamble to the Constitution.

“One person, one vote” is a basic principle of democratic government, but here in Japan failure to observe this principle has been the subject of lawsuits for almost half a century now. The website (Japanese only) of a group called Hitori Ippyō Jitsugen Kokumin Kaigi (National Council for Realization of “One Person, One Vote”) has a headline in the form of a question: “How much is your vote actually worth?” By entering information on where they live, users can immediately determine the value of their votes. For example, a vote cast in my own electoral district, Tokyo’s 18th, is worth only 0.49 votes by comparison with one cast in Kōchi Prefecture’s 3rd district, the lower house district with the fewest people (or in other words, the most valuable votes). This amounts to a disparity of 2.04:1. The least valuable votes are those cast in Chiba Prefecture’s 3rd district, each of which is worth only 0.41 votes in Kōchi’s 3rd, for a disparity of 2.43:1.

How did this state of affairs arise?

Population Shifts Not Properly Reflected

The high-speed growth of the Japanese economy in the 1960s was accompanied by a major shift of population from rural areas to the big cities. This led to large discrepancies in the numbers of people in the electoral districts that had been drawn on the basis of the country’s population distribution shortly after World War II. But the Diet failed to address this problem, and so the disparities persisted.

A legal trainee, angered at this situation, challenged the results of the 1962 House of Councillors (upper house) election, in which the disparity in vote value was 4.09:1, charging that this violated the guarantee of equality under the law in Article 14 of the Constitution: “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.” On February 5, 1964, the Supreme Court rejected this suit, ruling that this disparity did not violate the Constitution and declaring that seat apportionment was a matter of legislative policy to be determined by the Diet. Similar suits were filed after subsequent elections, but judicial panels continued to rule that the issue was one for the legislative branch to handle. And the disparities continued to widen.

The situation changed in 1976. On April 14 that year, the Supreme Court ruled that the disparity of 4.99:1 in the 1972 lower house election was in violation of the Constitution. The evening edition of the Asahi Shimbun carried a headline declaring, “Malapportionment Unconstitutional, Equality of Vote Value Affirmed: Declaration Shakes Political Structure.” The court made it clear that the Constitution’s guarantee of equality under the law applied not just to the right to vote but also to the value of the votes cast.

This ruling was a historic first for the Supreme Court, which up to then had shown excessive deference toward the executive and legislative branches. Even though it declared the existing electoral system to be unconstitutional, however, the court did not rule the election results invalid; instead it used the “circumstantial ruling” (jijō hanketsu) procedure by which a court allows an administrative act to stand in consideration of the public harm that would result from overturning it.

After this case, though the Supreme Court did not indicate a clear criterion, legal experts took the view that the constitutional limit was a disparity of about 3:1 for lower house elections and 6:1 for upper house elections. But some constitutional scholars took the position that any disparity over 2:1 was unconstitutional, and some high courts issued rulings to that effect. Their logic was that the principle of one person, one vote meant that it was impermissible for one person to have two votes, and thus a 2:1 disparity was the limit.

The First Set of Election-Nullifying Rulings

Among the recent set of rulings concerning the December 2012 lower house election, two courts have declared the election itself invalid instead of applying the “circumstantial ruling” procedure. This is a noteworthy development.

The first such ruling was handed down by the Hiroshima High Court on March 25. The court declared the results of the election in the 1st and 2nd districts of Hiroshima invalid. The ruling may be summarized as follows: (1) The Diet has a constitutional duty to correct situations that violate the equality of the value of votes and distortions in democratic procedures and to reform the legal provisions concerning electoral districts. (2) The present provisions concerning electoral districts are in violation of Article 14 of the Constitution. (3) The restraint on voting rights and distortion of democratic procedures is grave, and the status quo cannot be permitted under the Constitution; rather than a circumstantial ruling that would declare the election unconstitutional but leave the results valid, the decision is that the election is invalid. (4) The effectiveness of this ruling is to be suspended for a certain period, but during this period the Diet should revise the current system, with the election results to become invalid a year after the start of redistricting work.

The Hiroshima ruling was the top story in most newspapers the following morning. And the judicial drama continued. On that same morning, the Okayama branch of the Hiroshima High Court issued a ruling nullifying the results of the election in the 2nd district of Okayama Prefecture. In this case the ruling was effective immediately. The evening editions of newspapers that day carried headlines like “Election-Nullifying Rulings Continue.” It was the first time in history that Japan’s newspapers carried top stories in both their morning and evening editions on the same day with headlines containing the terms “unconstitutional” and “election nullified.”

The Okayama branch offered the following reasons for its ruling that the election results were invalid, effective immediately: (1) The districting was in violation of the constitutional requirement that votes be of equal value. (2) According to Article 99, “The Emperor or the Regent as well as Ministers of State, members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution,” Diet members must follow the letter of the Constitution; their failure to correct the malapportionment is inexcusable and represents grave contempt of the judicial branch. (3) The equal value of votes is the most important criterion, and the political confusion from nullifying the election cannot be said to be more serious than the harm from accepting the violation of this criterion. (4) Since the confusion likely to occur as a result of nullifying the election is not that great, the “circumstantial ruling” procedure will not be adopted.

If the decision immediately nullifying the election result becomes final, the Diet member elected from the district in question will lose his or her seat. But the court decided that the harm from the inequality of vote value was greater than the harm from depriving the member of the seat and calling a new election. In other words, the court placed greater emphasis on realization of the values set forth in the Constitution than on political considerations.

How Will the Supreme Court Rule?

The rulings from Hiroshima and Okayama have been submitted on appeal to the Supreme Court, which is expected to reach decisions on them this autumn. It is almost certain that the top court will rule the disparities in the value of votes unconstitutional, but it is not known whether it will nullify the election results. One possibility is that it will issue a ruling that will take effect at some point in the future, like the one issued by the Hiroshima High Court.

The Supreme Court already issued one ruling that took the Diet to task. On March 23, 2011, the court called for the elimination at the earliest possible date of the “one extra seat” system whereby 47 out of the 300 single-seat constituencies for the lower house are allotted on a one-seat-per-prefecture basis regardless of the prefectures’ populations (a ruling that the Diet has yet to act on). In view of this, the court can be expected to be harsh on the Diet in its ruling later this year.

The Supreme Court has also ruled that the 5.0:1 disparity in the value of votes for the upper house represents a “state of unconstitutionality.” In a judgment issued on October 17, 2012, the court declared: “In order to allow the popular will to be reflected more appropriately, rather than simply increasing or decreasing the numbers of seats in particular districts . . . the aforesaid state of inequality giving rise to the problem of unconstitutionality needs to be eliminated as quickly as possible by taking legislative action to revise the mechanism of the current electoral system itself.”

This decision, in which the majority of the current Supreme Court justices were involved, tackles a matter of the sort that the court previously tended to evade through declarations that the issues involved “specialized technical matters” of the legislative branch. And the opinions expressed by individual justices included suggestions for “a change from electoral district units to broad regions” (Justice Sakurai Ryūko) and “electoral districts in blocks transcending the framework of prefectures” (Justice Kanetsuki Seishi).

Inasmuch as the current Supreme Court has already offered concrete ideas like these concerning the proper shape of the electoral system, it seems unlikely that it will issue a ruling that labels the disparities in the latest election unconstitutional but declares the election itself valid.

A Fundamental Overhaul to Better Reflect the Popular Will

In my view, the current electoral system for the lower house, which provides for a combination of single-member districts and seats assigned in blocks by proportional representation, is skewed in favor of the former, with single-seat constituencies accounting for 300 out of the total of 480 seats. The design of the system and the concrete details are determined by legislation, as per Article 47 of the Constitution: “Electoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law.” But reflecting the popular will is the top priority for the electoral system under the Constitution. The government is currently moving to tweak the system with legislation reducing the number of single-member districts by five, taking one seat away from five prefectures that now have three. Instead of this sort of stopgap approach, the Diet should undertake a fundamental overhaul of the electoral system with a focus on making it reflect the popular will.

 (Originally written in Japanese on April 23, 2013.)