Fallout from the June 3 local elections is widening, as voting was halted at 22 polling stations nationwide due to ballot shortages, prompting protests demanding a re-election near the ballot-counting center at Olympic Park in Seoul's Songpa District.
Criticism of the ballot shortage has continued both inside and outside the legal community. The Korean Bar Association (KBA), the statutory body representing lawyers, issued a statement saying it "sternly criticizes the unprecedented ballot shortage that infringed on the right to political participation." Constitutional petitions and criminal complaints targeting the National Election Commission (NEC) and others have followed.
Korean Bar Association: "Suffrage Infringed, Trust in Electoral Fairness Damaged"
In a statement on Friday, the KBA strongly criticized the ballot shortage, calling it "a serious problem that infringed on citizens' right to political participation." The KBA pointed out that "voting was halted at a total of 22 polling stations due to ballot shortages, and voters had to wait a considerable amount of time until ballots arrived," adding that "in the process, some voters gave up on voting."
It continued, "Voting proceeded past the closing time, even after broadcasters' exit poll results were released." The KBA criticized this as "a serious problem that undermines trust in the fairness of the electoral system, as some voters cast their ballots only after information about the election outlook had been disclosed."
The KBA also raised concerns about physical clashes between police and citizens that occurred at polling stations where the ballot shortage took place. "Public force was deployed once again in front of citizens protesting the delay and suspension of voting procedures," the KBA said. "A situation that appears to manage, through public force, the angry voices of citizens whose right to political participation was infringed is tantamount to those who should bear responsibility instead treating the sovereign people as objects of control. This is a grave matter that shakes the foundations of democracy and must be dealt with sternly."
The KBA stressed, "This incident is a constitutional issue separate from the political advantage or disadvantage of any particular political camp or any political evaluation of the election results," adding that "the NEC must not reduce this incident to a mere clerical error."
Constitutional Petitions, Dereliction-of-Duty Complaints Filed; Heading to Court
With the KBA taking such a firm stance, substantive legal procedures to assign responsibility are also underway both inside and outside the legal community. According to the legal community, two constitutional petitions to the effect that "the NEC infringed on the right to vote by preparing too few ballots" had been filed with the Constitutional Court as of Friday.
The Constitutional Court is expected to first weigh the possibility of dismissal by reviewing whether the petitions violate the "principle of subsidiarity," which requires exhausting legal relief procedures first. If the court proceeds to a review on the merits, the key issues are expected to be whether an "administrative omission" — the NEC's neglect of its duty to supply ballots — is recognized, and whether there is any exceptional benefit in providing relief for citizens' right to political participation even after voting has ended.
Complaints have also continued to be filed with the police. Joo Jin-woo, a lawmaker of the People Power Party, personally submitted to the Seoul Metropolitan Police Agency a complaint against NEC Chairman Roh Tae-ak and NEC Secretary General Heo Cheol-hun on charges of dereliction of duty and abuse of authority. A civic group, the Committee for the People's Livelihood Measures (Seomin-wi), filed a complaint with police on election day against NEC Chairman Roh and others on charges including dereliction of duty and abuse of authority. The group claims that officials of the central and Seoul NEC, including Chairman Roh, face not only charges of dereliction of duty and abuse of authority but also occupational embezzlement and breach of trust. In its complaint, the group said the officials "encouraged the outrage of making a considerable number of voters turn back after waiting."
Six organizations, including the Speculation Watch Capital Center, the People's Solidarity, the Justice Solidarity, and the Mugunghwa Club for the Democratization of the Rule of Law, also submitted complaints of similar content to the National Investigation Headquarters of the Korean National Police Agency through the e-People petition portal. These six organizations named all eight NEC commissioners as targets of their complaint.
Criminal Punishment Hinges on Proving Intent; Civil Damages May Be Granted
The legal community is watching whether dereliction-of-duty charges against NEC officials will hold. Some analysts argue that it will be difficult to assign criminal responsibility unless it is proven that the NEC caused the incident intentionally. For the crime of dereliction of duty to be established, one must consciously abandon one's duties, but since this incident may have been a simple administrative error, it is difficult for it to lead to criminal punishment. On the other hand, some argue that if the NEC could have predicted the number of voters or an increase in turnout but consciously failed to prepare or print ballots, it could be viewed as conscious neglect or abandonment based on willful negligence, and dereliction-of-duty charges could be recognized.
There is also a possibility that citizens who could not vote due to the ballot shortage may file damages suits against the state or the NEC. Some predict that damages suits would have a high chance of being granted. Given that a clear infringement of rights by an institution occurred, some take the view that civil damages could be recognized for a wider range of people — not only voters who could not vote, but also citizens who had to wait long periods due to voting delays. However, the prevailing opinion is that, in the course of litigation, it must be proven through physical evidence such as CCTV or documents that they actually went to a site without ballots to vote but were deprived of the opportunity.
Election Nullification Suits Possible, But "Likely to Be Dismissed"
Some observe the possibility of suits claiming the election itself is invalid or contesting the vote-counting results. Under the Public Official Election Act, those contesting elections for local councils or heads of local governments may file an appeal with the competent election commission within two weeks of election day. If a decision of rejection or dismissal follows, they may file an election-result suit or an election suit with the court. An election-result suit contests the election of a specific person, while an election suit contests the validity of the election itself. The competent court must process the case within 180 days of the suit's filing.
The prevailing opinion in the legal community is that the election itself will not be concluded as invalid. This is because it is difficult to determine the exact number of voters who could not actually vote due to not receiving ballots, and it is difficult to prove a causal relationship that their votes would have had a decisive impact on the election results. Lawyer A, who works at a large law firm and previously served at the National Assembly, explained, "The right to vote is the most basic of fundamental rights guaranteed under the Constitution, and this case, which infringed on it, is an unprecedented situation. However, while the infringement of individuals' right to political participation is serious, an election nullification suit at the party level is highly likely to be dismissed."
Some cite Germany's case to argue that a re-election should be held. In Germany, after invalid ballots emerged in succession in the September 2021 Berlin state election due to errors such as ballot shortages and mix-ups, the Berlin Constitutional Court ordered a re-election the following year. At the time, the Berlin Constitutional Court pointed to "serious structural flaws" in the election preparation process.
On the afternoon of June 3, when the ballot shortage came to the surface, Kim Jung-chul, the Reform Party's candidate for Seoul mayor, said, "Article 222 of (Korea's) Public Official Election Act stipulates that an election can be declared invalid in whole or in part 'when there is a violation of election regulations that is recognized as having affected the results.'" He added, "Since the German Federal Constitutional Court's decision holds that a 'possibility' of having affected the results is sufficient, there exists a possibility that an election nullification suit could also be granted (in Korea) going forward." Kim is the representative lawyer of Woori Law Firm.
However, some argue that the German re-election case differs from this incident. Lawyer A said, "In the Berlin case, 'overall mismanagement,' such as misdelivered ballots and hours-long waiting lines, was clear, and it was confirmed that thousands of people, more than 1 percent of all voters, were affected and that seat allocation could change. However, it is difficult to conclude that the results were changed by this incident."
